the (new) legal writer

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.”)

Next up on my reading list

My copy of Making Your Case, by Justice Antonin Scalia and Bryan Garner, finally arrived today. Judging by the first 16 pages (all I’ve read so far), it’s easy to read and hard to put down. I look forward to reading the remaining 190 pages.

While purchasing MYC on Amazon, I also picked up Judge Richard Posner’s new book, How Judges Think. I had read a blog post about this book on The Blawgraphy that piqued my interest. Just from glancing at the book, it looks like it may be more difficult reading than Making Your Case. But then, mining for gold isn’t supposed to be easy. Here is Judge Posner’s blurb from the back of the dust jacket:

I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges—and even by some judges. This unrealism is due to a variety of things, including the different perspectives of the different branches of the legal profession—including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. . . This book parts the curtain a bit.

Oh boy!

Free samples

My guess is that just about everyone reading this blog knows that Bryan Garner and Justice Antonin Scalia have collaborated on a new book, Making Your Case: The Art of Persuading Judges. If you haven’t decided whether to buy the book, read these free samples provided by the ABA Journal.

Thanks to Howard Bashman for this tip. Howard also has links to an MP3 podcast interview of the authors.

Black’s Law Dictionary Digital

Here’s an interesting product available on Amazon.com: a digital version of Black’s Law Dictionary. Besides providing easy desktop access to BLD, it integrates with both Corel WordPerfect and Microsoft Word, including incorporation of the correct spellings of legal terms into the WordPerfect and Word spell-checkers. So if you’re document contains a word like usufruct, the spell-checker won’t go, “Huh?”, but instead will (if necessary) prompt you with the correct spelling.

Garner on Writing and Language

If you want to be the first kid on your block to own Bryan Garner’s next book, Garner on Writing and Language, you can pre-order it from Barnes & Noble. The scheduled release date is September 25. Here’s the blurb:

“The nation’s foremost expert on writing, style, and usage, Bryan Garner, now collects his finest essays on writing, language, and style, and offers them in this in this massive anthology. These articles cover the gamut from advice for beginning writers, to essays on writing successfully as a professional. Also included are hilarious chapters on puns, curiosities, vocabulary use, and other comical writing escapades. Further chapters contain solid advice on making oneself a great writer, grammarian, and stylist. It’s perfect for anyone who works with the written word.”

Arthur Quiller-Couch, On the Art of Writing

I’m about halfway through The Art of Writing by Arthur Quiller-Couch. It’s a collection of lectures he gave at Cambridge in 1913–14. I bought it on Amazon, but I discovered today that it’s available for free on Bartleby and Project Gutenberg. If writing matters to you, then you should at least check out one of the on-line versions of this book.

Here’s a little taste of it. It comes from Chapter V, titled “Interlude: On Jargon.” Sir Arthur defines jargon as the opposite of direct, concrete writing. To illustrate the horridness of jargon, he translates Hamlet’s soliloquy into jargon:

To be, or the contrary? Whether the former or the latter be preferable would seem to admit of some difference of opinion; the answer in the present case being of an affirmative or of a negative character according as to whether one elects on the one hand to mentally suffer the disfavour of fortune, albeit in an extreme degree, or on the other to boldly envisage adverse conditions in the prospect of eventually bringing them to a conclusion. The condition of sleep is similar to, if not indistinguishable from, that of death; and with the addition of finality the former might be considered identical with the latter: so that in this connection it might be argued with regard to sleep that, could the addition be effected, a termination would be put to the endurance of a multiplicity of inconveniences, not to mention a number of downright evils incidental to our fallen humanity, and thus a consummation achieved of a most gratifying nature.

I knew you’d enjoy it. Now go and read the rest of it.

Making Your Point, by Kenneth F. Oettle

I haven’t finished reading this book yet, but I’ve read enough to recommend it. It is (as the subtitle suggests) a practical guide to persuasive legal writing. Its author is Kenneth F. Oettle, a practicing lawyer who tells us what works in the real world. He drew the material in this book from three years’ worth of legal-writing columns for the New Jersey Law Journal.

If you’re just beginning your legal career, you’ll find Ken’s advice invaluable. But the book has good stuff for legal writers at all levels of experience. My personal favorite (so far) is Weak Arguments are Pellets for the Shotgun Approach, in which Ken explains why throwing in a throw-away argument is a bad idea.