The Trial Practice Tips Weblog

Editing Tip: Spell Out Numbers One to Ten, and Don't Repeat Them in Parentheses

Apparently, there used to be some formal editing rule that said you had to write numbers twice, repeating them once in parentheses, like this:

Before the consolidation order, there were more than eight (8) other, separate cases on file.

With the recent amendment of the class definition, the class size increased from three thousand (3,000) to four thousand (4,000).

You still see this number-repeating idea often in legal writing. It's not necessary. The better rule is to spell out numbers one to ten, use numerals for numbers higher than 10, and forget about repeating numbers in parentheses. The revision to the two examples would look like this:

Before the consolidation order, there were more than eight other, separate cases on file.

With the recent amendment of the class definition, the class size increased from 3,000 to 4,000.

Much easier to read, isn't it?

Source: Bryan A. Garner, The Winning Brief.

How to Improve Your Legal Writing

My small contribution to the area of legal writing includes three articles published in the Illinois Bar Journal, which you can find on my law firm's website--

• Improve Your Legal Writing with Five Simple Rules;
• First Drafts Made Easy;
• Five Steps Towards Persuasive Writing.

I enjoyed writing and publishing them -- I hope you'll enjoy reading them.

Writing for the Court: Control Your Outrage and Scorn

Here's a worthwhile post from Maxwell Kennerly's Litigation & Trial weblog: "How To Write Your Brief So That The Judge Will Hate You."

Kennerly's post came about like this. First, Kennerly read an article about a judge who wasn't happy with a tone of a lawyer's brief. Next, Kennerly went on PACER and found the offending brief. On his weblog, he highlighted some of the places where the brief's tone was suspect and made the whole thing available by clicking a link.

The offending brief includes a lot of vitriol and sarcasm aimed at the other side: it snidely says the plaintiffs (two legal professors) were motivated to sue by mere "unhappiness," says their claims are hard to understand, accuses them of "feigning injury," says they are wasting the court's time, and calls their action "obviously unmeritorious."

Does it sound like a lot of briefs you've read in your career? At the end of his post, Kennerly gives this advice:

Outrage and scorn are not wholly forbidden in front of a judge or a jury but you have to earn it.

An opening brief filled with sarcasm will perturb a judge doing his or her best to reserve judgment until they've heard both sides just as much as an opening statement filled with indignity will repulse a jury doing their best to be fair and impartial until they've heard all of the evidence.

Kennerly's post stands as a good reminder to all of us who write for judges--judges who are always more interested in the facts and the law than our own belly-aching about the other side.

Examples of Bad Legal Writing from the "Legalese Hall of Shame"

Here's an example of some bad legal writing from the "Legalese Hall of Shame," originally spotted in a lawyer's letter--

I am herewith returning the stipulation to dismiss in the above entitled matter; the same being duly executed by me.

At the Legalese Hall of Shame, you'll also find translations of the twisted English posted there. Here's the quote above, in translation: "I have signed and enclosed the stipulation to dismiss the Byrd case."

The Legalese Hall of Shame is maintained by Adam Freedman, author of The Party of the First Part:The Curious World of Legalese. There's also a sort of companion weblog, titled The Party of the First Part: Adventures in Legalese.

Even if these sites won't make you a better writer (because, obviously, you already know how to write understandable English), they'll certainly entertain you, while nudging you in the direction of becoming an even better writer.

(Concluding note: I originally saw these links in a post titled "First Arrow" at Raymond Ward's the (new) legal writer. Ward's post is a list of his favorite writing sites. All of Ward's recommendations are worth exploring.)

The Only Writing Tip That Really Matters

The topic of today's post is overstatement. An example of overstatement can be found in the title of today's post, in which I suggest that overstatement might be the only writing problem that really matters.

Well, not really. It is important, though. At Robust Writing, Jesse Hines explains the concept in "Overstatements: An Enemy of Honest and Accurate Writing"--

When you overstate something, you’re stating it too strongly, exaggerating the merits of your idea.

Overstating things can undercut your overall argument and diminish anything else you have to say in the eyes of your readers, potentially propelling them to ignore you altogether.

If you engage in overstatement, you won't be able to maintain your credibility as a legal writer, as I noted in my article, "Five Steps Towards Persuasive Writing." Hines makes a similar point and quotes from Strunk and White--

When you overstate, readers will be instantly on guard, and everything that has preceded your overstatement as well as everything that follows it will be suspect in their minds because they have lost confidence in your judgment or your poise. Overstatement is one of the common faults. A single overstatement, wherever or however it occurs, diminishes the whole, and a single carefree superlative has the power to destroy, for readers, the object of your enthusiasm.

Overstatement weakens the force of your legal arguments. Add it to the list of problems you check for during self-edits.

Link from Celia C. Elwell and Raymond Ward at the (new) legal writer.

Legal Writing: Is That Judge Smart, or Not?

Does the use of simple words make you seem smarter? That's the topic of two recent blog posts from two different bloggers that I happened upon serendipitously by accident. One of the posts deals with a particular judge, which is the reason for the title of this post--

• "Use plain English, appear smarter (and more persuasive)," by Raymond Ward at the (new) legal wrtier; and
• "Mr. Garner's Simple English v. Judge Selya's Ultracrepidarian Lexiphanicism," by Martin Magnusson at Fairyland Castle.

As for the particular judge, I have no opinion. However, if you choose to take the advice suggested by most writing experts -- shorter sentences, shorter words, simpler writing -- here are a few tools that you can use to assess your own writing style:

• "Test Document Readability and Improve It";
• A tool for calculating your Gunning Fog Index;
• An explanation of various readability indexes.

Legal Writing in Crisis?

At Legal Blog Watch, Carolyn Elefant blames the deterioration in legal-writing abilities on the ubiquity of low-cost legal research tools-- 

While I believe that both factors --the informality of e-mail and lack of quality teaching -- have contributed to the decline of legal writing skills today, I think the main problem is the easy availability of low-cost, computerized legal research tools. These days, both students and lawyers can gorge on a glut of cheap reference sources, from today's less expensive LexisNexis and Westlaw, to tools like Casemaker or Versuslaw, to Google and other Internet search engines. Consequently, legal research has devolved into an exercise in "piling on", with lawyers adding cases and quotes merely to show strength through quantity of cases rather than quality.

The cure for this problem is easy enough: cut out the string cites. Although it's a tip you've probably heard before, it's one that's easily forgotten.

Meanwhile, as my own modest contribution to improving legal writing, I offer the posts from this weblog's legal writing category, including these--

1. "Self-Editing Tips for Legal Writers."

2. "Legal Writing: Some Free Advice."

3. "Six Posts About Better Writing."

4. "Reminder: Omit Needless Words."

5. "A Writing Tip that Pays Dividends in Reader Comprehension."

6. "Legal Writing Tip: Begin First Drafts in the Middle."

7. "An Easy Tip to Make Your Writing Look More Professional."

8. "I Don't Speak Latin, and Neither Do You."

9. "How to Easily Counter Your Opponent's Brief-Writing Venom."

10. "Legal Writing: Is Shorter Really Better?"

A Writing Tip You Can't Afford to Miss

What's the writing tip you can't afford to miss? Some hints--

• It's the topic of Chapter 43 of Bryan Garner's The Winning Brief.

• There are entire books written about it.

• It's a problem that's all around us, even in the title of this post. It will sap your writing of its energy and make a reader give up on you before he's even started.

The problem is cliché. As stated in Garner's book: "State your ideas freshly"--

Many clichés are almost exclusively legal. Consider the phrase it is well settled that--a phrase that many practitioners will defend by saying that it aptly introduces an idea for which there is much precedential support. In fact, it's a lame phrase because it's so worn out. A better phrasing is tailored to the situation: In a series of seven cases decided over the past decade, the New Mexico Supreme Court has consistently held that . . . Or this: Since 1938, the rule of this Circuit has been that . . .

In order to rid your writing of cliché, you have to be able to spot them in the first place. Look for phrases that are overused, that you've heard again and again, that you'd never call "original." Examples, not all of them from Garner: open-and-shut case, foregone conclusion, on all fours with, parade of horrors, Alice-in-Wonderland. 

When is the best time to hunt down clichés in your own writing? Do it first after the first draft, and then again when you are doing a final edit.

Bryan Garner Discusses Writing with Justice Scalia

The ABA Journal has emailed me to say that in addition to the Scalia-Garner freebie I mentioned in a post last week, there's also a free audio file in which Scalia and Garner discuss writing and oral argument.

You can find it here: "Podcast: Scalia and Garner on Appellate Advocacy."

Play the file directly from your computer or download it for transferring to an iPod or other MP3 player.

A Don't-Miss Freebie from the ABA

The ABA Journal has excerpted "Making Your Case: The Art of Persuading Judges," by Justice Antonin Scalia and Bryan A. Garner.

The excerpt can be found here; a link to the book itself is here.

Meanwhile, there is an interesting article by Dahlia Lithwick about the book in Slate: "Justice Antonin Scalia is persuadable. Or he finally thinks you are."

The ABA Journal excerpt is in two parts, brief-writing and oral argument. To round out this post, here's a representative quote from part one--

Clarity is amply justified on the ground that it ensures you'll be understood. But in our adversary system it performs an additional function. The clearer your arguments, the harder it will be for your opponent to mischaracterize them.  Put yourself in the shoes of a lawyer confronting an opposing brief that is almost incomprehensible. You struggle to figure out what it means--and so does the court. What an opportunity to characterize the opposing argument in a way that makes it weak! This can't happen to you--your opponent will not be able to distort what you say--if you are clear.

For more about legal writing on this weblog (one of my favorite topics), see the "Legal Writing" category.