the (new) legal writer

Send a message to the bookstores about usage guides

SPOGG (Society for the Promotion of Good Grammar) reports receiving this e-mail from Bryan Garner:

I have a favor to ask of you as a loyal reader: In the next few hours or days, would you please go to http://www.amazon.com/ or http://www.bn.com/ and buy one or more copies of the new third edition of Garner’s Modern American Usage as holiday presents? In fact, keep this gift possibility in mind through the end of the year, won't you?

I need your help in sending a message to the major bookstore chains: they’re not stocking the book because they’ve told Oxford University Press that they consider usage guides a “defunct category.” It’s maddeningly unbelievable. Please help me show them that they’re stupendously wrong.

Meanwhile, in the coming months you might ask about the book when you’re in a bookstore: ask the managers why they don’t stock copies, and encourage them to do so.

If you’re curious to see what effect you’re having, watch the rankings on Amazon.com or Bn.com in coming days and weeks. We’ll be alerting the major chains to those numbers, and we want to get as close to the top 50 as we can. If you're trying to order and see that the book is labeled “out of stock,” order anyway: the effort is also to ensure that the online booksellers keep adequate stocks.

In return for this favor – it’s a grassroots effort – I’ll be happy to inscribe copies that you send to LawProse for that purpose, if you (1) include a filled-out FedEx airbill for returning them to you, and (2) suggest an appropriate inscription.

Thank you for whatever help you can provide in this endeavor to show booksellers that the concern for good English is alive and well.

I already have my copy of this book. I haven’t spent a lot of time with it yet, but from what I’ve seen so far, I got my money’s worth. If you’re waffling, have a look at John McIntyre’s review.

For writers and readers of judicial opinions

If you either write or read judicial opinions, then you should read Opinion Writing and Opinion Readers, by Judge Ruggero Aldisert and two of his law clerks, Meehan Rasch and Matthew P. Bartlett. In this paper, Aldisert & Co. examine whether to write an opinion at all, the audiences to whom an opinion may be directed, the structure of an opinion. and the function of each section. If you write judicial opinions, this paper will help you write better ones. If you read judicial opinions, this paper will help you understand them better by understanding the writer’s purposes.

This paper is a preview of the forthcoming second edition of Judge Aldisert’s book Opinion Writing, which (the publisher promises) is “coming soon.”

15 books

(Cross-posted on Minor Wisdom)

John McIntyre inspired this post. John was recently let go as a copy editor by the Baltimore Sun due to the newspaper’s financial death spiral. Anyway, the idea is to list 15 books important to you. Says John, “In my case, I’ve construed it to be books that I’ve looked into repeatedly, or the 15 books I would want to pack up when the severance runs out and the sheriff shows up to turn me out of the house.” With that thought in mind, here are my 15, in the order that they pop into my mind:

1. The Bible. Specifically, the New American translation. I can’t imagine going through life without a Bible handy.
2. Bryan A. Garner, A Dictionary of Modern Legal Usage. I need this book for my job, and there’s no other book I know of that covers the same ground.
3. John Kennedy Toole, A Confederacy of Dunces. The best New Orleans-based novel ever written.
4. Anthony De Mello, Awareness. This book helped me turn the corner on depression. My current happiness is a result of things I learned from it.
5. Walker Percy, The Second Coming. I need at least one Walker Percy book on this list. Of all his novels, this is my favorite. The Last Gentleman is a close second.
6. Flannery O’Connor, A Good Man Is Hard to Find. This collection of short stories will punch your mind in its solar plexus.
7. Roy Blount Jr., Feet on the Street. A guy not from New Orleans gets New Orleans. And his outsider’s perspective enables him to get New Orleans in a way that most natives miss.
8. Richard Daniels, The Heavy Guitar Bible. This book was written for would-be rock-and-rollers. In my case, it introduced me to the structure of the blues—particularly the pentatonic scale.
9. Bryan A. Garner, The Winning Brief. Several years ago, the first edition of this book (and Bryan’s accompanying seminar) raised my brief-writing consciousness.
10. William Strunk and E.B. White, The Elements of Style. This book does not tell you everything you need to know about writing. But I don’t know of any other book that packs so much sound advice into so few pages.
11. Ruggero Aldisert, Winning on Appeal. Every appellate lawyer needs this book. I am an appellate lawyer. Therefore, ....
12. Edward Good, A Grammar Book for You and I — Oops, Me! This book and one of its predecessors, Mightier Than the Sword, reveal the grammatical structure of the English language and how a writer can use that structure to maximum effect.
13. George Gopen, The Sense of Structure. This book too aims to reveal the power of structure to a writer. While Ed Good talks about grammatical structure, George Gopen talks about syntactic and linguistic structure.
14. Roy Peter Clark, Writing Tools. This may be the best book on writing in general that most legal writers are unaware of. Like Ed Good and George Gopen, Roy will add some tools to your writing toolbox. Or, if you’re a lawyer, he will add weapons to your writing arsenal.
15. Flannery O’Connor, The Habit of Being. This is a collection of Flannery’s letters. Many of them offer simple and profound spirituality. All of them are served up by one of the south’s best all-time writers.

Almost as old as I

It seems that Strunk & White’s little book just turned 50. That makes it almost as old as I am. Some people love S&W; others don’t. Me, I think the little book just needs to be placed in proper perspective. Hence the photo above. S&W will serve you well if you remember the following:

• The book on the left is a good book. The book on the right is The Good Book. (Here, the difference between the indefinite article and the definite article is important.)


• The book on the left isn’t the bible—that would be the book on the right.

p.s. Marc Acito has a terrific perspective on S&W. (Hat tip to Sam Jacobson at Legal Writing Prof Blog.)

My New Year's resolutions

I’ve never made New Year’s resolutions before. Now is a good time to start, because there are some good books that I want to read—or finish reading. So for 2009, I resolve to do the following:

• Finish Thinking Like a Writer, by Stephen V. Armstrong and Timothy P. Terrell. I’ve had this book on my shelf for a couple of years now, but didn’t start reading it until a few weeks ago, shortly after hearing Prof. Terrell speak at a seminar. The title suggests the basic message: to write more effectively, lawyers should think less like lawyers and more like writers. The book is big and thick, which makes it a bit intimidating. In fact, the authors promise that “requires more effort than most books about legal writing.” But from what I’ve covered so far (112 out of 415 pages), the effort will be worthwhile. For a taste, click here.

• Finish Alphabet Juice, by one of my favorite authors, Roy Blount, Jr. One of my Christmas presents this year was a copy of this book, autographed by the author. The subtitle suggests what this book is about: “The Energies, Gists, and Spirits of Letters, Words, and Combinations Thereof: Their Roots, Bones, Innards, Piths, Pips, and Secret Parts, Tinctures, Tonics, and Essences; With Examples of Their Usage Foul and Savory.” The entry about Wilt Chamberlain (which I skipped ahead to read) is worth the book’s price. (Blount also wrote Feet on the Street, a must-read for anyone who wants to know what New Orleans is all about.)

• Read Bryan Garner’s latest, Garner on Language and Writing. This book is a collection of essays on writing, language, and style. I just ordered mine a minute ago. It’s 876 pages, so it may take me the better part of 2009 to finish.

Use plain English, appear smarter (and more persuasive)

I just finished reading Yes! 50 Scientifically Proven Ways to Be Persuasive (hat tip to the [non]billable hour). One of the 50 ways confirms something Bryan Garner says in The Winning Brief (p. 177, 2d ed.): people who use plain language are perceived as smarter and more persuasive than people who do the opposite:

“... Take, for example, the fact that communicators frequently try to convey their erudition via their grandiloquent, magniloquent, sesquipedalian verbosity; in other words, they try to look smart by using unnecessarily long words or overly technical jargon....

“... [R]esearch by [Daniel] Oppenheimer has shown that using overly complex language like this can produce the exact opposite of the intended effect: Because the audience has difficulty interpreting the language, the message is deemed less convincing and the author is perceived to be less intelligent.”

In an endnote, the Yes! authors cite D.M. Oppenheimer, Consequences of erudite vernacular utilized irrespective of necessity: Problems with using long words needlessly, Applied Cognitive Psychology, 20:139–56.

So there you have it: scientific proof that plain language aids persuasion.

The Dark-Blue Book: A Manual of Style for Contract Drafting, by Kenneth A. Adams

If your work involves drafting business contracts, then you need the second edition of Ken Adams’s book, A Manual of Style for Contract Drafting. It is to drafting what Bryan Garner’s Redbook is to legal writing in general.

Ken is the authority in this area. Besides writing the first edition of MSCD, he writes a blog devoted to drafting. After more than two years of blogging on this focused topic, he hasn’t run out of ideas. In fact, many ideas he’s hashed out on his blog have found their way into MSCD2.

One thing I like about Ken is that he does his own thinking. For instance:

Defense of shall. Unlike Bryan Garner,¹ Ken does not advocate eliminating shall from all legal writing. He agrees that shall is overused to mean too many different things, which in turn leads to ambiguity. And he agrees that shall probably shouldn’t be used in consumer contracts. But he finds no reason to banish shall from business contracts, and he offers several paragraphs of thoughtful reasons why banishing shall would create other problems. He insists, though, that shall be used to mean one and only one thing: “has a duty to.” MSCD2 ¶¶ 2.25–2.65.

Contractions. Ken agrees that contractions are fine for most prose; hence his book is full of them. But a business contract is not most prose. “The prose of business contracts is like computer code—it’s devoid of tone or rhythm, unless it’s poorly done, in which case it can be redolent of pomposity. So the idea of using contractions in business contracts is at odds with the very nature of contract prose.” MSCD2 ¶ 16.51.

Typography. Briefwriters are told never to use sans-serif fonts for text.² But a contract is not a brief, and there’s no court rule against sans-serif fonts for contracts. Ken challenges the notion that serif fonts are always easier to read than sans-serif fonts (MSCD2 ¶ 15.18), and so he recommends 11 point Calibri, a sans-serif font, for all contracts. MSCD2 ¶ 15.13. Not content to simply state his opinion on this point, he offers 18 paragraphs of reasons why Calibri is a good choice for contracts. (But if you must have serifs, then Ken recommends Cambria.)

This book is designed primarily as a reference. But if, like me, you’re relatively unschooled in the best practices for drafting contracts, then you would do well to read it cover to cover—which is what I intend to do over the next few weeks.
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¹ See Bryan A. Garner, A Dictionary of Modern Legal Usage 940 (2d ed.1995).

² E.g. Fed. R. App. P. 32(a)(5)(A).

Cheryl Stephens, Plain Language Legal Writing

Cheryl Stephens, of Building Rapport, the plain-language blog, is a leader in the field of plain language communication, and provides training and workshops to clients all over North America. She is making a guest appearance today promoting her new book, Plain Language Legal Writing. Take it away, Cheryl.

Richard A. Posner, How Judges Think

A better title for this book might have been What Makes Judges Tick. In it, Judge Posner explores not only the various non-legalistic ways that judges decide cases, but also the things that motivate the behavior of Article III judges, who—unlike most employees (or in Judge Posner’s words, labor-market participants)—don’t have the carrot of pay raise or promotion, and don’t fear the stick of getting fired. Reading this book will increase your empathy with judges. And if you can explore the inside of judges’ heads¹, you should have a better idea how to persuade them.

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¹ Or should that be “head”?

Remembering George Carlin

The passing of George Carlin is a loss to those who love direct, concise writing, devoid of bullshit. As a remembrance, here is a little piece I wrote about the writing lessons contained in his book Brain Droppings. (If you click on the link, scroll down just a little to the headline “Browsing the Bookshelf.”)