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-Wayne

What advice can you give for producing good legal writing under time pressure?

Other factors contribute to mediocre legal writing, but time limits are huge. All lawyers know this. Even a law professor, like me, who sits in an office and thinks deep thoughts about legal writing, with rarely a client or a deadline in sight, knows this. I've been behind on a book manuscript, with a deadline looming. I've raced through commenting on a stack of memos or briefs and wished for more time to do a better job.

But time pressure is a constant. Lawyers at my seminars say it and then ask me for advice on writing better faster. I bumped into a former student recently, and when I asked him for ideas for my column on legal writing in Austin Lawyer magazine, he suggested "how to produce quality work in a hurry."

I do have some advice, but before I post it (re-post it, technically), I'd like to hear from you.

What advice can you give for producing good legal writing under time pressure?

In a previous post, I wrote:

• Imposing law-practice realities on my course makes it difficult to manage, and I don't like the constraints those realities place on me.

In response, a commenter wrote:

• "Law-practice realities" are precisely what causes poor writing; ignoring them does not make them go away. Given enough of time, most lawyers can produce quality work. But most clients won't pay for it. Time constraints and billable hour considerations cause the majority of poor writing, my own included. And contingent fee situations present their own problems, as most contingent fee firms--again in my limited experience--operate on a volume business.

Well put. This commenter has said a lot in a short paragraph, and practicing lawyers would have to agree with much of it. I've written about time pressure before:

The time pressure of law practice doesn't allow enough revising and editing to produce great writing.

Bryan Garner has said: "The modern practice of law does not tolerate the type of revisory process necessary to produce a polished product--the “well-managed” law firm has more work to do than it can complete in a given span of time." Bryan A. Garner, A Dictionary of Modern Legal Usage 518 (2d ed. 1995).

Deadlines. Billable hours. Heavy workloads. All these prevent lawyers from taking the appropriate time to polish their writing. Even if I have 4 weeks to write a brief, that’s not enough because I have 3 other briefs, 4 memos, and 8 letters to write at the same time.

Revising. Editing. Rewriting. These make mediocre writing good and good writing great. But lawyers often don’t have enough time for them.

The way you edit your writing, or have your writing edited, is highly personal, but here's some advice that might help.

1. Leave ample time
One expert on legal writing, Bryan Garner, has said that "the modern practice of law does not tolerate the type of revisory process necessary to produce a polished product." A Dictionary of Modern Legal Usage 518 (2d ed. 1995). This may be true, but you should still try to give yourself more time to edit. Even so, you’re probably cutting your editing time too short.
 
How much time should you spend on editing? The pros recommend half the time on a writing project. And that doesn't include proofreading. Debra Hart May, Proofreading Plain and Simple 46 (1997). Can you afford that? Can your clients? It's up to you. But very few can produce high-caliber work on the first draft. Every good legal writer knows that mediocre writing becomes good writing only on the edit.

2. Assemble reliable sources
Keep nearby the best sources on grammar, punctuation, word usage, and the conventions of legal English. You should not be guessing about capitalization, commas, verb agreement, and spelling. Don't rely on half-remembered "rules" from middle school. And you know you can't rely exclusively on your spell checker and grammar checker. Get some authoritative guidance.
 
I always recommend Garner's The Redbook, but I can also recommend the Texas Law Review Manual on Usage & Style, 11th edition. It's not as comprehensive, but it has been through two thorough revisions in the last four years and is a great guide.

3. Use more than one technique
Do you edit on the computer screen? That's fine, but it's not enough. Do some editing on a hard copy, too. We read and react differently to screen text and printed text.
 
Do you read the text out loud? That's great too. You're using your ears, not just your eyes, to help you edit. Now go further and have a trusted colleague read it and suggest some edits. Opening yourself up to critique is hard, but it's a sure path to improvement.
 
Do you read the document in reverse, from the last sentence to the first? Good. This technique tricks your mind so you're not familiar with the text. Familiarity leads to poor editing. But now read only the topic sentences. Now read the opening and closing paragraphs.

4. Use word-processing aids
I use some word-processing functions to help me. Microsoft Word will tell you your average sentence length, your Flesch readability score, and your Flesch-Kincaid grade level. In versions of Word before 2007, do this: Go to Tools > Options > Spelling & Grammar. Now check these two boxes: "Check Grammar with Spelling" and "Show Readability Statistics."
 
Now, to eliminate the tedious and largely worthless grammar checking, do this: In the box labeled "Settings," uncheck all the grammar items. So even though Word is checking your grammar, it has nothing to check for.
 
The result of these settings is that each time you spell check, you'll get a statistical display showing, among other things, your average sentence length, your Flesch Readability score, and your Flesch–Kincaid grade level.
 
These numbers are not ends in themselves, just one more tool for the careful editor.

 

 

Let's talk about getting words on paper or onto the screen. The way you tackle a writing project is a personal matter, but here’s some advice that might help. On every writing project, see that you try to take each of these recursive, overlapping steps.

Brain dump
Get everything related to your topic out of your brain and onto paper. Don't use complete sentences or paragraphs and definitely don't edit. Don't even order the ideas. As the writing expert Bryan Garner has suggested, "et the Madman run loose for a while." Bryan A. Garner, The Winning Brief 8 (2d ed., Oxford U. Press 2004). He credits Betty Flowers with identifying this creative aspect of a writer's mind. If you brain dump freely, you're bound to have some great ideas and some lame ones. That's fine; you'll winnow later.

Sort and order
Take the dumped list and impose order. Place important and threshold topics first. Gather related ideas in groups. Then order the topics within groups. To help, imagine you're the reader. What would you need to know first and second and so on?

You're creating an outline. Remember outlining? Most of us learned to do it in middle school, but some of us think we're beyond it. No so. A good outline is an important step in a writing project. Go ahead and use numbers and letters here, even if you ultimately remove them. As you outline, you'll think of things to add, and you'll realize you can cut things, too.

Once you're satisfied, ask a colleague to assess your order and tell you if it seems logical. Revise accordingly.

Write
Using the sorted and ordered outline, begin crafting sentences and paragraphs. As with the brain dump, try to get your writing out without a lot of stops and starts. When you interrupt the writer inside you, it stifles creativity and slows down the process. So get your sentences and paragraphs down fairly quickly. Here are three techniques to use.

First, if you're a fast typist, you've got it made. Type quickly and keep at it.

Second, if you're a slow typist, you might write in long hand--with pen and paper--and type it up later or have a typist prepare the draft. This can work if you are relatively fast at handwriting and if you employ a rough shorthand.

Third, speak into a recorder or use what I use: a voice-recognition program. I'm a slow typist, so I've purchased a program that types what I speak. (I was surprised at how effective it turned out to be and how accurate it is. Not perfect, but very good.)
 
The main idea is to get a complete draft quickly, so resist the urge to edit as you go. Editing is the next step.

Edit
This step has two sub-steps: editing and proofreading. And editing itself can be a many-step process.

Editing means polishing and perfecting the large-scale organization, the small-organization, the sentences, and the word choice. On a major writing project, editing takes up half the time spent on the project--or more. I will have more to say about editing in a later post.

Proofreading means making sure the writing is correct as to grammar, punctuation, spelling, and the conventions of legal English.

A recursive process
When I say the composing process is "recursive," I mean that the steps are not discrete; they overlap. You begin writing but must return to the outline and adjust it. You begin editing and realize you need to write another section. This recursive aspect of composing is normal.

A commenter wrote:

• What do you think of "prosecutrix"?

"Prosecutrix" means the female who is the alleged victim of a (usually sexual) crime and on whose behalf the state is prosecuting someone. It does not mean a female prosecutor.

I think it's archaic and would not use it, but an easy replacement is not at hand. Some object to "victim" and "alleged victim." "Complainant" may be okay. If you want to preserve anonymity, you can't use the name. Many courts adopt a pseudonym like "Mary Doe."

See Garner's A Dictionary of Modern Legal Usage at 707.

A commenter wrote:

• I once had a judge tell me that a pleading was factually inaccurate when I used "testator" instead of "testatrix."

I hope this was in 1965. Probably not, though.

I suppose there's nothing really wrong with "testatrix." I do find it sexist, though. Why does it matter, your honor, whether the testator was a man or a woman? Why must we distinguish between male and female testators?

. . . the nation's leading expert on plain legal writing and the drafting consultant for the Federal Rules of Civil Procedure and the Federal Rules of Evidence.

Although lawyers write for a living, most legal writing is bad and has been for centuries; most lawyers recognized this failing from what they read, but still fancy themselves to be rather good writers, thank you; likewise, most lawyers strongly prefer other writers' prose to be plainer, simpler, shorter, clearer, but they also strongly resist changing their own style (that's the great disconnect); every possible rationalization for traditional legal style has been discredited; and the costs of our bad writing and funny talk—the time and money wasted and the public disrespect—are incalculable.

[Legal writing is] a stew of all the worst faults of formal and official prose, seasoned with the peculiar expressions and mannerisms that lawyers perpetuate.

—Joseph Kimble, Lifting the Fog of Legalese: Essays on Plain Language xi (Carolina Academic Press 2006).

Do you know what the passive voice is? Some lawyers don’t. Some think it is any verb that is not “strong,” or any form of the verb be, or any past-tense verb. It is none of those, though all might be labeled “passive” in some sense.

Generally, it is a form of the verb be (be, am, is, are, was, were, being, been) and a past participle. If the verb works with have, as in “have _____,” then it is a past participle. For example, in the sentence “I have baked,” the word baked is a past participle. The word written is a past participle here: “I have written.” When you combine a form of be with a past participle, you get the passive voice: “The pie was baked. The book was written.” Test yourself. What is the passive-voice construction here?

• The test might have been easier for students if it had been designed to measure their memories.

Remember, the passive voice requires a be verb and a past participle. Been easier is not passive because easier is not a past participle. The passive voice construction is been designed.

With the passive voice, the subject of the sentence is not doing the action; the subject is being acted upon. And it is possible to leave the actor—the doer of the action—out of the sentence entirely. Thus, the passive voice has two natural consequences.

First, the normal reader expectation of actor-action-thing acted upon, which fits the typical English order of subject, verb, object, is altered. Instead, it becomes thing acted upon-action-actor. Or, because you can leave out the actor, it can become thing acted upon-action. In other words, sentences can be in natural order, like this:

• I sent the letter.

Or they can be in an atypical order, like this:

• The letter was sent [by me].

Second, the passive voice tends to emphasize the thing acted upon. It removes the actor from the sentence or places the actor in a prepositional phrase at the end. Thus, the passive voice affects emphasis in the sentence.

Both these consequences of the passive voice suggest legitimate uses. Lawyers may want to change the order of the actor and action in the sentence, and lawyers may want to obscure the actor in a sentence or eliminate the actor completely. For example, in the next sentence, the emphasis is on the letter, not on the sender:

• The letter was sent.

In the next sentence, the actor is intentionally hidden:

• The files were lost.

Using the passive voice in these ways is fine, as long as you do it intentionally and sparingly.

But the passive voice has drawbacks, too. It requires more words than the active voice, so it makes sentences longer. The passive voice is also dry and dull and can put readers to sleep. And when overused, the passive voice can seem evasive. Better writers use the passive voice deliberately but with thought, and not mindlessly, as a default sentence construction.

Part of becoming a lawyer is mastering legal vocabulary, be it archaic, fancy, or Latin. It’s an important part of what law students and novice legal writers have to learn. But part of becoming an expert legal writer is shedding the archaic, the fancy, and the Latin. Too often, those legal words do nothing but make the text sound like a lawyer wrote it. Always, there are effective alternatives.

I’m trying to drag legal vocabulary into 2008. Goodness knows we don’t need words from 1908, let alone 1708. So here are a few legal words we can leave behind.

 

aforementioned

Why use this outdated word when its shorter cousin, aforesaid is available? I’m kidding. Eliminate them both and specify the place you are referring to.

 

comes now

A lawyer once asked me to settle a debate at the office: “If there is one plaintiff, it’s ‘COMES NOW Rodney Jackson, . . .’ But if there are two plaintiffs, shouldn’t it be ‘COME NOW Rodney and Melinda Jackson, . . .’?” Of course, I told him that the correct answer was to stop beginning pleadings with this archaic phrase. And drop the ALL-CAPS.

 

hereinabove

Almost all the here- words should go, but this is the most annoying. It’s old, and it’s vague. As with almost all legal writing, the better approach is to specify what you are referring to and where it can be found.

 

inter alia

Latin words that aren’t terms of art, as this one isn’t, ought to be eliminated: vel non, sub judice, sua sponte, and others. But this one I particularly dislike. Let’s use the everyday-English equivalent: among others or among other things.

 

instant case

“This case,” “our case,” “the Jackson case,” and “the current case” are all better.

 

said

As an adjective to designate a noun that has been mentioned before, this word is no more precise than this, that, these, those, and the. All it really does is make the text smell legal.

 

subsequent to

Its cousin, prior to, is only slightly less pretentious. Expert writers who want clean, vigorous prose prefer before and after.

 

witnesseth

This word has no place in modern legal drafting. If you prepare transactional documents, and you’re afraid to take it out, be brave. And look it up: you don’t have to take my word for it. One expert calls it an “antiquarian relic.” Black’s Law Dictionary 1634 (Bryan A. Garner, ed., 8th ed., 2004)

-trix suffix words like administratrix, executrix, prosecutrix, testatrix

In 1992, a legal-language expert said these forms were “dying.” David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage 600 (1992). We can no longer wait around. Kill them off now. They’re sexist, archaic, and hard to pronounce.

For further guidance on outdated and useless legal words, see

• Adam Freedman, The Party of the First Part: The Curious World of Legalese (2007).
• Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995).
• David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage (1992).