I’ve spent some time lately considering how I might distill some of the writing advice I give to legal writing students or new lawyers. I think this list represents the most important tips I can give, but I’d love you to add your thoughts/advice in the comments. I’d also like to add a disclaimer.
While I am writing this, I’m having a cocktail and exchanging Twitter haikus with my cyber-sister @jillsmo (who writes a really damn funny blog here), so if some of my sentences seem a little matchy-matchy or strangely rhythmic, it’s her fault.
1. Wield Your Pen (or Keyboard) Like a Scalpel Not a Sledgehammer. If having surgery, would you prefer the doctor just cut you open willy-nilly or would you rather the surgeon made a single incision as precisely as possible? (If you’d like to be cut open willy-nilly, this metaphor will be totally lost on you, so just skip to #2.) Choose your words with the precision of a surgeon. Don’t leave your reader scarred by your random musings (unless you write a super-witty, extraordinarily useful, and crafty blog like I do). Get to the point, and make sure your words actually convey your intended meaning. Be a minimalist, and keep it simple.
2. Write As If Your Mother Will Read It (a/k/a Don’t Be An Asshole). We’ve all received a communication from someone who pissed us right the fuck off. You know you still smart at the one letter or email that was the equivalent of a red flag waving at your inner bull. Not long ago, I stopped speaking on the telephone to opposing counsel for one of my cases, because he insisted on screaming at me on the phone. So, he instead resorted to writing me emails IN ALL CAPS!!!!!!!!!!!!!!! (just like that). He was begging for a smack down of epic proportions, and I was itching to do it. Instead, I walked away from my computer and into my boss’s office, vented then collected myself, and responded simply and only to the issue that needed to be addressed. When opposing counsel and I later got into a discovery dispute that resulted in the attachment of his lovely emails as an exhibit to a motion, I wasn’t embarrassed, and I wasn’t dressed down by the judge. In open court. On the record. In front of a full courtroom.
When you write in response to something that starts feeling a little too personal, remember these two things:
Before you embark on a journey of revenge, dig two graves. — Confucius
Strong and bitter words indicate a weak cause. — Victor Hugo
You might succeed in making opposing counsel (or to whomever your missive is directed) as angry as you are by figuratively ripping his/her face off with your acerbic wit, but what you are not going to do is impress a third party (i.e., the judge). And, that kind of defeats the purpose, doesn’t it? The best revenge is success, so stick to making your important point and save the Snarky McSnarkerson for Twitter. Or your blog. Don’t unleash her in your professional writing.
3. Since ≠ Because. I frequently see these words used interchangeably, even by writers I consider to be quite good at their craft. But, the words are not synonyms. Since refers to a temporal relationship between two events. For example, if I write, “John gained ten pounds since he quit smoking,” the words describe an event occurring during a period of time between the day John quit smoking and the day the sentence is written — those two points in time define when John gained some weight. However, the sentence does not convey the cause of John’s weight gain. If that’s what you take from the sentence, it is an assumption not an inference. (See Point 4, below.) However, because refers to a cause/effect or correlative relationship. If I write, “John gained ten pounds because he quit smoking,” the sentence expresses a connection between quitting smoking and stuffing your face full of Hostess chocolate mini-donuts. Not that I would know this from any kind of personal experience. At all. WHAT?!
4. Inference ≠ Assumption. This concept is best illustrated by example. My son and I are home. There is no one else in the house. I bake a cake. I leave the whole cake on the kitchen counter and exit the room. When I return, there is a piece of cake missing. I know these facts: (1) I am home; (2) my son is home, (3) no one else is in the house, (4) a piece of cake is gone, and (5) I did not eat it. From those facts and by a process of deductive reasoning, I infer that my son took the piece of missing cake. (I have no evidence he actually consumed it.) Now, let’s say that I am home, my son is home and my husband is home. I bake a cake. I leave the whole cake on the kitchen counter and exit the room. When I return, a single slice of cake is missing. I cannot infer that my son took the cake, because it is equally possible that my husband took it. If I conclude that my son took the cake, I am making an assumption, not drawing an inference. See? Inference, good. Assumption, bad. You know what your mom told you happens when you assume …
5. Your ≠ You’re. Your is a possessive pronoun describing something belonging to you. You’re is a contraction of you and are. As in: Please proofread your work if you’re going to post it, because there’s always some Reddy McRed-Pen down the comment thread.
3. Don’t Use Five Words When One Will Do. You’d think it would be challenging to clear your throat in writing, but I see this a lot in the form of cumbersome, unnecessary phrases that reduce simply to if or because: due to the fact that, in the event that, should it come to pass that. Quit writing this crap. It’s lawyer-like (or “professional”-sounding) only because (not “to the extent that”) it is a textbook example of lawyers’ bad writing habits. When you use phrases like this, the words have the same effect on your reader that a lot of ums, uhs and other verbal tics have on a speaker’s listeners. It reads like you’re tripping over yourself and are unsure about your point, which sucks if you want your writing to inspire a reader’s confidence in you.
4. Use Strong, Active Verbs. Nothing waters down your writing faster than weak verbs. First, learn how to form past-tense verbs to avoid past perfect and past perfect progressive verbs that aren’t as powerful as the past-tense conjugation of an irregular verb. For example:
Neither of the parties had knowledge that the gun was loaded.
Why use three words – “had knowledge that” to convey what is said with one – “knew”? The stronger sentence is:
Neither party knew the gun was loaded.
Second, use a verb that actually describes the action your subject is doing to your object. For example, consider the difference between these two sentences:
ProfMomEsq hurt her toe.
ProfMomEsq stubbed her toe.
Both sentences convey the idea that I was hurt, but the second one is far more descriptive of how I was hurt without adding any additional words. After reading the first sentence, you think, Bummer. I like that ProfMomEsq lady. Too bad she hurt her toe. But, after reading the second one, you think, Oh! Ouch! I hate it when I do that shit! Sucks! See? It’s like magic!
Third, avoid the passive voice. For example:
Paralegals may be employed by a law firm to perform tasks sometimes performed by lawyers.
No good my friends, because the subject and object of this sentence are backward. Who is doing the employing? The law firm. Who is employed? The paralegals. Hotel. Motel. Holiday Inn. If your friend is actin’ up … Switch!
A law firm may employ paralegals to perform tasks sometimes performed by lawyers.
Unless, you know, you want your writing to read like Yoda wrote it. Then, by all means, please put your objects at the beginning of your sentence. Irritate the shit out of your reader, you will. But, it’s your paper …
5. Proofread ≠ Spellcheck (or Vice Versa). You MUST do both. Period. End of discussion. Because I said so, that’s why. You will sit there until you clear your plate. Now, put a sweater on. It’s cold in here.
6. Quotation Marks – Learn Who’s in the Club and Who Isn’t. Period: in. Semi-colon: out. Question mark: in if it’s actually part of the quote, otherwise out. Comma: in. Yes, it is that simple.
7. The Abbreviation A.M. and the Words “In the Morning” Should Not Appear in the Same Sentence. It’s called redundancy, people. No likey. It’s bad bad.
8. Stop Capitalizing Words that Aren’t Capitalized. There is no better way to announce to a reader your uncertainty about the meaning of a word than to capitalize a noun that does not need capitalizing. This epidemic may afflict only the writing of new legal writers, but I see it enough that it makes my list. If you don’t know, look it up. If you have to guess, err on the side of using the lower case, unless the word is the first one in your sentence. (And, I really, really hope that last part went without saying. But, just in case.)
9. If You Have to Point Out How Clear or Important Something Is, It’s Not. Sentences that start like this — “Clearly, it is important to note that” — are usually followed by a point that is neither clear nor important. Make your words get a dollar out of 15 cents. Choose words that make the point both clear and important – not because you said so, but because the articulation of your reasoning makes it so.