News
Law Practice
Feb. 26, 2002
The Write Word
Dicta Column - By John P. Rutledge - While most lawyers excel at arguing, pontificating and debating, most do not excel at writing. Good writing is a unique combination of art and science; it is both imaginative and precise.
Dicta Column
By John P. Rutledge
While most lawyers excel at arguing, pontificating and debating, most do not excel at writing. Good writing is a unique combination of art and science; it is both imaginative and precise.
One of the standards that I have adopted in my quest for effective writing is, "Is it comprehensible to a child?" As highly educated professionals, we tend to communicate with large words when the small, "penny kind" are often more effective. Large, fancy words often carry linguistic baggage and alternative meanings that are not commonly known or intended.
Effective legal writing is, at a minimum, clear, concise and direct. A client's first read of a document should make him or her think, "Well, that sure makes sense." Opposing counsel should have the same reaction. Anything less tells me I haven't done my job.
Here are 10 writing rules that will help you create top-quality work products:
• Be succinct. In general, use the fewest number of words you can. This is an extraordinary tool. It helps reduce ambiguities and keeps the reader's attention. Do not, however, sacrifice clarity for brevity; include that additional phrase if it elucidates the parties' intent.
Here are a few common phrases and their more succinct alternatives: Replace "in the event of" with "if," "for the purpose of" with "to," "in accordance with" with "under" or "pursuant to," "during the period of time from" with "from," and "shall have the right to" with "may."
• Be direct. My writing style has been described as "friendly but curt." I value my time and the client's money and don't want to waste either.
Why would one write "the parties mutually agree"? Isn't an agreement mutual by definition? The word "mutual" is, therefore, redundant.
Also, the phrase "shall be entirely null and void and of no force or effect whatsoever" contains many redundancies. A litigator colleague claims the former language is superior because he believes it gives the client more bites at the apple. I disagree for that same reason: Why provide opposing counsel with the argument that every bite is necessary to eat the apple?
The sentence, "The first piece of litigation was settled for $20,000, the second piece of litigation was settled for $30,000 and the third piece of litigation was settled for $55,000," should be shortened to "The three matters were settled for $20,000, $30,000 and $55,000, respectively."
• Be precise. Ambiguities cause misunderstandings, and misunderstandings cost the client money. The failure to define an agreement's key terms is an example of imprecision that can cause needless problems.
• Illustrate when appropriate. Being illustrative often serves the client's best interests, but be careful not to circumscribe the issue. For example, effective advocates strategically replace "including" with "including, but not limited to," where it benefits the client and the agreement's clarity to do so. Those four additional words render the list expressly nonexhaustive. Some argue that the word "including" is definitively unlimited; that use of "but not limited to" is redundant. But, as I noted earlier, brevity should fall to clarity.
The power of illustration duly noted, one must weigh the likelihood of educating opposing counsel against the probability that an omitted illustration might harm the client. A well-contemplated list of illustrations might alert opposing counsel to considerations he or she has missed.
On the other hand, you will be happy if the list addresses an issue that later becomes consequential. It's a difficult call to make. The best way I've found to avoid tipping one's hand is to keep the list salient while addressing indirectly the concerns undiscovered by opposing counsel.
For example, I recently used the phrase "all infringement claims" in a settlement agreement to avoid alerting opposing counsel to the existence of his client's underlying trademark infringement claim. Opposing counsel believed the matter sounded exclusively in copyright infringement. I protected the client's interests without educating opposing counsel.
• Use the active voice. I once cut five lines from a 31-page agreement by replacing "the terms and conditions of this agreement" with "this agreement's terms and conditions." Aggressive writing is a powerful tool. It places the sentence's subject and object in their respective hierarchical positions: A subject acts; he, she or it is not acted upon. In other words, it's not "the book that belongs to John." It's "John's book."
This approach isn't superior simply because it is active. It helps eliminate ambiguities while communicating complementary information. Take for example the following sentence: "The decision was made." Who made the decision? A better sentence reads, "The judge decided."
Here's another example: "The defendant's offer of settlement will be rejected." It should be replaced with "The plaintiff will reject the defendant's offer."
Switching to an active style after a lifetime of passive writing can be a daunting task. You likely will catch most passive language during the editing phase. Keep at it, though, and your first drafts will improve.
• Write in staccato. Effective advocates are not monotone, whether speaking or writing. Our prose rises and falls to accentuate key contentions and minimize opposing positions. To help accomplish this end, use short sentences as often as possible and try to convey only one thought per sentence. Avoid punctuation gimmicks like exclamation marks, as they don't carry the authoritative weight of a crisp, matter-of-fact statement. Besides, most readers recognize these parlor tricks and dismiss them.
Consider these sentences: "The defendant is a liar and a cheat with a history of stealing money!" Versus: "The defendant has been convicted of fraud six times." The latter sentence is more likely to impress the objective reader because the first is merely an emotional rant. The reader will remember the rant, not the fact.
Accentuate highs and lows, as those are the things that impress us. Be mindful, though, that those highs and lows evidence points or principles, not passions or prejudice.
• Use lists of threes. We remember concepts conveyed in cadence. For this reason, written communication structured in triplets can be very effective.
Consider the following examples: "The real estate broker is entitled to the fee because he brought a potential buyer to the seller. That potential buyer had the financial wherewithal to purchase the home and was looking forward to doing so" doesn't communicate the point as well as "The seller owes the real estate broker the fee because the broker secured a potential buyer that was ready, willing and able to purchase the home." The latter sentence communicates the point more effectively and creates a lasting memory of the author's intended message.
• "It's" is always a contraction. The pronoun "it" is followed by an apostrophe only when it is part of a contraction of the phrase "it is." "Its" is the possessive form of "it." While editing, ask yourself, "Am I trying to abbreviate 'it is'?" If not, strike the apostrophe.
• Number and/or tabulate more than two elements. Lengthy lists can be confusing. Number and tabulate as often as possible. This approach will add length to your document, but it will make it more readable. Without enumeration and, to a lesser extent, tabulation, certain provisions are dense and difficult to comprehend. The numbered, tabulated structure makes it more accessible to attorney and layperson alike.
• Be strong. Something isn't somewhat or rather large. Either it is large, or it isn't. Don't waffle or otherwise hedge your characterizations. If you feel it is necessary to limit a representation, perhaps you shouldn't make it.
In closing, I offer the guidance given to me many years ago by an esteemed college professor: "There is no such thing as good writing ... only good rewriting." Remember these principles, and you, too, will improve your work product.
John P. Rutledge is an associate with Donahue, Gallagher, Woods & Wood in San Francisco.
By John P. Rutledge
While most lawyers excel at arguing, pontificating and debating, most do not excel at writing. Good writing is a unique combination of art and science; it is both imaginative and precise.
One of the standards that I have adopted in my quest for effective writing is, "Is it comprehensible to a child?" As highly educated professionals, we tend to communicate with large words when the small, "penny kind" are often more effective. Large, fancy words often carry linguistic baggage and alternative meanings that are not commonly known or intended.
Effective legal writing is, at a minimum, clear, concise and direct. A client's first read of a document should make him or her think, "Well, that sure makes sense." Opposing counsel should have the same reaction. Anything less tells me I haven't done my job.
Here are 10 writing rules that will help you create top-quality work products:
• Be succinct. In general, use the fewest number of words you can. This is an extraordinary tool. It helps reduce ambiguities and keeps the reader's attention. Do not, however, sacrifice clarity for brevity; include that additional phrase if it elucidates the parties' intent.
Here are a few common phrases and their more succinct alternatives: Replace "in the event of" with "if," "for the purpose of" with "to," "in accordance with" with "under" or "pursuant to," "during the period of time from" with "from," and "shall have the right to" with "may."
• Be direct. My writing style has been described as "friendly but curt." I value my time and the client's money and don't want to waste either.
Why would one write "the parties mutually agree"? Isn't an agreement mutual by definition? The word "mutual" is, therefore, redundant.
Also, the phrase "shall be entirely null and void and of no force or effect whatsoever" contains many redundancies. A litigator colleague claims the former language is superior because he believes it gives the client more bites at the apple. I disagree for that same reason: Why provide opposing counsel with the argument that every bite is necessary to eat the apple?
The sentence, "The first piece of litigation was settled for $20,000, the second piece of litigation was settled for $30,000 and the third piece of litigation was settled for $55,000," should be shortened to "The three matters were settled for $20,000, $30,000 and $55,000, respectively."
• Be precise. Ambiguities cause misunderstandings, and misunderstandings cost the client money. The failure to define an agreement's key terms is an example of imprecision that can cause needless problems.
• Illustrate when appropriate. Being illustrative often serves the client's best interests, but be careful not to circumscribe the issue. For example, effective advocates strategically replace "including" with "including, but not limited to," where it benefits the client and the agreement's clarity to do so. Those four additional words render the list expressly nonexhaustive. Some argue that the word "including" is definitively unlimited; that use of "but not limited to" is redundant. But, as I noted earlier, brevity should fall to clarity.
The power of illustration duly noted, one must weigh the likelihood of educating opposing counsel against the probability that an omitted illustration might harm the client. A well-contemplated list of illustrations might alert opposing counsel to considerations he or she has missed.
On the other hand, you will be happy if the list addresses an issue that later becomes consequential. It's a difficult call to make. The best way I've found to avoid tipping one's hand is to keep the list salient while addressing indirectly the concerns undiscovered by opposing counsel.
For example, I recently used the phrase "all infringement claims" in a settlement agreement to avoid alerting opposing counsel to the existence of his client's underlying trademark infringement claim. Opposing counsel believed the matter sounded exclusively in copyright infringement. I protected the client's interests without educating opposing counsel.
• Use the active voice. I once cut five lines from a 31-page agreement by replacing "the terms and conditions of this agreement" with "this agreement's terms and conditions." Aggressive writing is a powerful tool. It places the sentence's subject and object in their respective hierarchical positions: A subject acts; he, she or it is not acted upon. In other words, it's not "the book that belongs to John." It's "John's book."
This approach isn't superior simply because it is active. It helps eliminate ambiguities while communicating complementary information. Take for example the following sentence: "The decision was made." Who made the decision? A better sentence reads, "The judge decided."
Here's another example: "The defendant's offer of settlement will be rejected." It should be replaced with "The plaintiff will reject the defendant's offer."
Switching to an active style after a lifetime of passive writing can be a daunting task. You likely will catch most passive language during the editing phase. Keep at it, though, and your first drafts will improve.
• Write in staccato. Effective advocates are not monotone, whether speaking or writing. Our prose rises and falls to accentuate key contentions and minimize opposing positions. To help accomplish this end, use short sentences as often as possible and try to convey only one thought per sentence. Avoid punctuation gimmicks like exclamation marks, as they don't carry the authoritative weight of a crisp, matter-of-fact statement. Besides, most readers recognize these parlor tricks and dismiss them.
Consider these sentences: "The defendant is a liar and a cheat with a history of stealing money!" Versus: "The defendant has been convicted of fraud six times." The latter sentence is more likely to impress the objective reader because the first is merely an emotional rant. The reader will remember the rant, not the fact.
Accentuate highs and lows, as those are the things that impress us. Be mindful, though, that those highs and lows evidence points or principles, not passions or prejudice.
• Use lists of threes. We remember concepts conveyed in cadence. For this reason, written communication structured in triplets can be very effective.
Consider the following examples: "The real estate broker is entitled to the fee because he brought a potential buyer to the seller. That potential buyer had the financial wherewithal to purchase the home and was looking forward to doing so" doesn't communicate the point as well as "The seller owes the real estate broker the fee because the broker secured a potential buyer that was ready, willing and able to purchase the home." The latter sentence communicates the point more effectively and creates a lasting memory of the author's intended message.
• "It's" is always a contraction. The pronoun "it" is followed by an apostrophe only when it is part of a contraction of the phrase "it is." "Its" is the possessive form of "it." While editing, ask yourself, "Am I trying to abbreviate 'it is'?" If not, strike the apostrophe.
• Number and/or tabulate more than two elements. Lengthy lists can be confusing. Number and tabulate as often as possible. This approach will add length to your document, but it will make it more readable. Without enumeration and, to a lesser extent, tabulation, certain provisions are dense and difficult to comprehend. The numbered, tabulated structure makes it more accessible to attorney and layperson alike.
• Be strong. Something isn't somewhat or rather large. Either it is large, or it isn't. Don't waffle or otherwise hedge your characterizations. If you feel it is necessary to limit a representation, perhaps you shouldn't make it.
In closing, I offer the guidance given to me many years ago by an esteemed college professor: "There is no such thing as good writing ... only good rewriting." Remember these principles, and you, too, will improve your work product.
John P. Rutledge is an associate with Donahue, Gallagher, Woods & Wood in San Francisco.
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