Selected Scribes Writing Tips

Careful proofing is as important as excellent writing. Errors and omissions slip into documents so easily. There are many good tips for proofing your work, all best employed a day or more after you wrote it.

• Print and proof the document in hard copy.

• Read the document aloud, forcing yourself to acknowledge each word, or read with your finger pointing at each word.

• Never try to proof for everything at once — proof the text, then the headings, then the caption and ending.

• Proof separately for any attachments, exhibits, appendices, or other separate matters that need to be with the document — are they there, are the numbers correct, is each what the text says it is?

• Do the math — if the document contains any calculations, do them again; add up the columns; do the subtraction; be sure the numbers are correct.

• Check proper names, company names, addresses, and the like. Be especially sure the names of the judge and your client are spelled correctly. Judge MacBride does not appreciate being identified as Judge McBride.

• If you make a recurrent type of error, search for it separately. You may be able to have the computer spellchecker catch many types of errors, such as pubic for public and trail for trial, by removing the word that is likely to be undesirable from the dictionary.

• Don’t trust the auto-correct dictionary. For several years, for example, the dictionary in one major word processor automatically corrected “tortious” into “tortuous.”

At least in the initial drafts, efforts to keep your writing concise may stifle the flow of your words. If this is true, then let the words come freely and deal with wordiness later. Once you capture the content you want, you can turn to making the document shorter.

First, scan the sentences to see if the same subject is addressed in more than one place, such that reordering and combining will reduce the length. Similarly, is any passage no longer necessary to the document? Your discussion of the facts, for example, may have been borrowed and may contain facts not relevant to the current document. Trim the facts to those that matter for this motion or document.

Next, address each paragraph in turn and see if you can revise it to shorten it by one line. Substitute shorter words for longer ones, simplify the sentence structure, and reduce nounification. Sentences that begin “There is/are” can often be reworded and shortened.

Now, looking at paragraphs that have only a few words in their last lines, try again to revise the paragraph to eliminate that line.

None of these changes should affect the substantive content of the document.

Although not a formal legal writer, Stephen King is a writer extraordinaire with some good advice for all writers. In his 2000 book On Writing, in the “Toolbox” chapter, he explains:

One of the really bad things you can do to your writing is to dress up the vocabulary, looking for long words because you’re maybe a little bit ashamed of your short ones.

Shorter simpler words are easier to read and understand, more likely to convey the writer’s intended meaning, and more comfortable. The law has many dozens of words that have no simple counterpart-rescission, force majeure, laches, subrogation-so there is little choice but to use these when required. All the more reason, then, to use simpler words the rest of the time.

Format selected block quotes for easy reading. Many readers find the dense text of standard block quotes tiresome enough to read that they may skip over the blocks entirely. Istvan & Ricks, Top 10 Ways to Write a Bag Brief, N.J. Law. (2006). Add extra leading or space between the lines to reduce that tendency. If there are paragraphs in the block quote, retain that formatting instead of substituting a paragraph mark.

Choose block quotes carefully and sparingly. Judge Alex Kozinski remarked: “Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer.” Kozinski, The Wrong Stuff, B.Y.U. L. Rev. 325, 329 (1992). Given the danger that long block quotes may not be read, paraphrase the less critical material to shorten the block. Write the lead-in to the block to reveal its importance. If the block is important because it states the three elements of this or the five tests for that, then add letters or numerals in brackets or otherwise format to assist the reader. Although a textual repetition of the content immediately following the block is likely to offend the reader, the points can be worked into the text at a later opportunity.

Have your secretary or a paralegal double check the accuracy of the quotations and citations to locate them. Errors the court finds in one raise questions on the accuracy of all, and your opponent and the court will check. E.g., Austin v. Pascarelli, 531 So. 2d 550, 551 (La.App. 1988) (“The trial court may have been misled by the incorrect quote of La.RS 9:3921 contained in Pascarelli’s motion for summary judgment.”).

Be especially careful to check the use of ellipses to ensure that important qualifications or even the word “not” or another essential word has not accidentally been omitted. Dube v. Eagle Global Logistics, 314 F.3d 193, 194-95 (5th Cir. 2002) (“We rejected Provost Umphrey’s briefs as noncompliant because, inter alia, they contained ‘specious arguments’ and had ‘grossly distorted’ the record through the use of ellipses to misrepresent the statements and orders of the district court.”); United States v. Johnson, 187 F.3d 1129, 1132 n.3 (9th Cir. 1999) (“The government used ellipses to leave this decisive part of the statute out of its brief. Such use of ellipses to omit a relevant section of the Oregon statute is improper. Use of ellipses to excise relevant and decisive sections of the statute in a way that benefits the government’s case is looked upon with great disfavor.”).

The courts in these and, sadly, many other decisions made a public record that the attorneys involved could not be trusted. Even if a public record is not made, judges talk to each other and may keep records in chambers of the attorneys whose work is suspect. As a result, an attorney’s reputation may be tarnished in many courtrooms for a single serious quotation error.

Consistency in written work is as important as content because consistency in presentation is critical to ensuring that the reader can get through the words to the meaning. If the writer does not use a clear short reference to a party or event, the reader cannot be sure that the reference to the broker is intended to mean stockbroker Sam Sleeze. Shifting references to the Berner House, the house sold in 2009, the Newby’s residence, and the house overlooking the ocean leave the reader wondering if all of these are the same house. Changing formats for block quotes raise questions whether all or only some are quotations.

Determine short names for everyone and everything that will need a short name, and use that same short name consistently. If drafting a complaint or answer, select your short names then and use them through the end of any appeal. Never leave your reader to wonder. A tired reader may simply quit reading when it becomes too annoying.

Whether called headings or captions or another term, headings are important to many legal documents and require more than the normal attention.

A tentative heading may be used during the writing process. Even if accurate when first written, the heading may become inaccurate as the paragraphs are written and revised. The more the heading strays from the contents, the greater the likelihood that readers will be misled. For example, in State v. Cooley, 608 N.W.2d 9, 13 (Iowa 2000), the court observed:

Cooley’s competence was not questioned during oral argument, nor was the matter referenced in the defense brief beyond a heading which reads:

THE TRIAL COURT ERRED IN CONDUCTING INSUFFICIENT INQUIRY INTO THE DEFENDANT’S UNDERSTANDING OF PRO SE REPRESENTATION AND INTO WHETHER THE DEFENDANT WAS COMPETENT TO MAKE THE DECISION TO REPRESENT HIMSELF, ALL IN VIOLATION OF THE SIXTH AMENDMENT.

The State has interpreted this heading as a claim by Cooley that he was either incompetent to act pro se, or that the trial court owed him a duty to inquire as to his mental status. In either event, Cooley failed to articulate any arguments to that end so the point is moot.

A heading that has lost touch with the contents suffers from the additional problem that a scan down the table of contents will not reveal the actual contents of the paragraphs. The arguments may be disregarded by the court as a result. Provost v. Regents of University, 201 Cal.App.4th 1289, 1294 (2011) (“Although we address the issues raised in the headings, we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument”). Similarly disregarded are headings that are not followed by argument and authority. Donchez v. Coors Brewing Co., 392 F.3d 1211, 1217 n.3 (10th Cir. 2004); Callahan v. Barnhart, 186 F. Supp. 2d 1219, 1230 n.5 (M.D. Fla. 2002).

Likely the best way to avoid these problems is to leave enough time to review the headings independently and in connection with the material they introduce to ensure that each heading accurately reflects the contents and enables the reader to understand the intended meaning in full.

Every moderately extended discussion of a case, statute, or other writing leads to the question whether to paraphrase the significant parts or to present them as block quotes. Both options have advantages, as the paraphrase can be shorter and can include explanatory material not in the quote, while the quote is what the source document actually says, avoiding issues about the accuracy of the paraphrase.

This is a choice that must be made repeatedly. The default should be a paraphrase based on the ease of reading and the ability to omit irrelevant points while adding material not in the quote. Many people find block quotes very hard to read and simply skip them altogether.

Exercises and quizzes for plain-language teachers and students are readily available on the Internet and are helpful in developing good writing habits or eliminating bad ones. Some have been developed by the federal government, others by the states. These may be found with a search for “plain language.”

Plain language does not mean dull or dumb-down language. It means clear writing that is readily understood; writing that avoids use of the passive and correctly uses parts of speech that are often misused. At first glance, some may say that they learned these rules in junior high, but the sad truth is that many first saw these rules in junior high but did not actually learn them.

The National Archives, which publishes the Federal Register, speaks to the improvement of legal writing in the U.S. https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html. One point we could all take to heart is the importance of short sentences to clear writing.

Write short sentences. Readable sentences are simple, active, affirmative, and declarative.

The more a sentence deviates from this structure, the harder the sentence is to understand.

Long, run-on sentences are a basic weakness in legal documents.

Legal documents often contain conditions which result in complex sentences with many clauses.

The more complex the sentence, the greater the possibility for difficulty in determining the intended meaning of the sentence.

Solutions

• • State one thing and only one thing in each sentence.
  • Divide long sentences into two or three short sentences.
  • Remove all unnecessary words. Strive for a simple sentence with a subject and verb. Eliminate unnecessary modifiers.
  • If only one or two simple conditions must be met before a rule applies, state the conditions first and then state the rule.
  • If two or more complex conditions must be met before a rule applies, state the rule first and then state the conditions.
  • If several conditions or subordinate provisions must be met before a rule applies, use a list.

A quote perhaps most often attributed to Mary Heaton Vorse states: “The art of writing is the art of applying the seat of the pants to the seat of the chair.” So it is. If you don’t start, you will never finish.

What do you need to write what you want to write? A cup of tea, your notes on relevant statutes, the phone on mute, your office door closed, a warmer jacket-whatever it is, get it done before you try to start. All of these things are distractions that consume part of your mind. Turn off the radio and TV and all similar distractions. If you are writing for a client and charging time by the hour, the client is entitled to have all your attention focused on the client’s issue.

The most important thing you need is an understanding of the substance you intend to convey. Start often with the statement of facts; learn the facts as you write. If you don’t understand your subject, you cannot write successfully about it. On the other hand, you need not understand every aspect. Collateral subjects-burden of proof, admissibility of evidence, timeliness, sometimes even jurisdiction, boilerplate clauses, and others-can be written first, interspersed with the main subject, or written last. Someone having trouble getting started on the main subject can often start with one or more collateral subjects and create time for background thinking on the main issues.

If all else fails, make a list: all the possible causes of action, all the defenses, all the reasons the deal can or can’t be structured a particular way, all the safeguards your client needs (liens, personal guarantees, letter of credit, and so on). Even if you are not ready to address the main subject, there should be something on the list that you can tackle.