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December 2006
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February 2007

Mr. Thorne's neighborhood

Mr. Thorne, a professional editor, offers advice on law-firm publishing on his new blog, Set in Style. By "law-firm publishing," he means any legal writing read by anyone outside the law firm:

This blog is meant to be a resource for those involved in law firm publishing — from attorneys writing articles, to copywriters producing practice area brochures, to the publishers of law reviews, to paralegals preparing statements of facts.

Here, you’ll find information about various aspects of law firm publishing — matters of grammar and style, typesetting and page layout, production and more.

Set in Style has an attractive layout and a sidebar full of useful links. If you care about your work product, you'll want to pay a visit. (Now if I can get Mr. Thorne to help me type real quotation marks and apostrophes instead of these tick marks ....)


Ambiguity of "and" and "or"

Legal-drafting expert Ken Adams and linquistics professor Alan Kaye have written an article for St. John's Law Review titled Revisiting the Ambiguity of "And" and "Or" in Legal Drafting. Here's part of the abstract:

In this article, the authors reexamine the ambiguity engendered in legal drafting by and and or. They do so in a way that reflects linguists’ understanding of the subject, and they explore how ambiguity varies depending on the grammatical context.

After defining ambiguity and distinguishing it from vagueness and after considering the significance of context, this article examines the ambiguity engendered by plural nouns, a topic that is closely related to the ambiguity of and and or. It then discusses in turn the ambiguity engendered by and and by or and closes with a discussion of and/or and the ambiguity of and used in conjunction with or. Any marked divergence from analyses offered elsewhere in the literature on legal drafting is noted.

Ken says he enjoyed the interdisciplinary collaboration:

Because I’m no linguist, I enlisted Alan to reduce the odds of my making a fool of myself. He helped me understand the fundamental flaw in the existing literature, and without his being on hand to brainstorm issues as they came up, I wouldn’t have had the courage to write the article. And I love the groovy interdisciplinary vibe that comes from having a linguist as co-author.


Schiess v. Gopen

Here's something you don't see every day: two legal-writing teachers engaged in a war of (and over) words. The arena is Idealawg, which, a few days ago, ran an interview with George Gopen. In the interview, George suggested that most writing teachers are doing their jobs poorly:

Almost all the advice we got from our writing teachers is wrong.

"Avoid the passive."  Wrong.

"To make it better, make it shorter."  Wrong.

"Write the way you speak." Wrong.

"Vary the way you begin your sentences to keep your reader interested."  Wrong.

"Always begin your paragraph with a topic sentence that states the issue and point of the paragraph."  Wrong.

Even the advice in that delightful classic, Strunk & White’s Elements of Style, cannot help you write better.  "Avoid needless words"?  How do you know which are "needless"?  Yes, it is comforting to know the distinctions between "affect" and "effect," or "lay" and "lie"; but with those potential errors out of the way, we still would not know how to "write."

One writing teacher, Wayne Schiess, apparently took George's remarks personally; he left a comment defending Strunk & White, avoidance of passive voice, and improvement through brevity. This prompted George to file a reply brief.

My own take on this: I have found Strunk & White, Plain English for Lawyers by Richard Wydick, and the things Wayne teaches helpful. I've also found helpful books by Bryan Garner, Ed Good, Mark Painter, John Trimble, William Zinsser, Patricia O'Conner, and Roy Peter Clark. I've read —  and recommended — George Gopen's books. Read them all. Learn what you can from all of them. But don't think that any one of them will give you The Whole Truth. Whatever you think you know, there's always more to learn.


Metaphor

Anastasia wrote an interesting post two days ago on Lawsagna, discussing the "watery" metaphors often used in fiscal discussions (e.g. laundered money, liquid assets, float a loan, flood the market, cash flow), and "wonder[ing] about the effects of metaphors on our thinking and learning." The post reminded me of an article by Prof. Linda Berger, published two years ago in the Journal of the Association of Legal Writing Directors, titled What is the sound of a corporation speaking? How the cognitive theory of metaphor can help lawyers shape the law. Prof. Berger argues that

better understanding of metaphor's cognitive role can help lawyers shape the law. According to cognitive theory, metaphor molds our understanding, our reasoning, and our evaluation in persuasive and invisible ways. If metaphor is not merely a literary device but instead creates meaning, it is a particularly powerful and inescapable method of using language to persuade. To argue against a dominant metaphor, lawyers must be able to uncover it; to argue for a new metaphor, lawyers must be able to imagine it. Studying the work of cognitive researchers builds such perception and imagination: the more we know about the work of the mind, the use of language, and the means of persuasion, the more critical, insightful, and persuasive we can be.


Too true

Animus Revertendi, a blog by Chinese students in American law schools, has an interesting commentary on American legal writing. To put it briefly: legal writing is unnecessarily dull because, beginning in law school and continuing on into our legal careers, creativity is beaten out of us:

... The best-regarded law student writings are often throughly researched and clearly presented, but without any originality in style or organization. In fact, if a student tries to write with a sense of humor or an unusual touch of personality, he could be punished in terms of grades. Thus, the incentive is to produce pieces of writing that are standardized and flavorless. Sure, the result may be an end product with "balanced-nutrition." But who really wants to consume, or tends to remember, something that tastes like wax?

... In recent years, since many more clerks with similar background (top grades, law review, top schools) are drafting opinions, they tend to gravitate towards what served them well in law school — too many citations and too little personality.

Writing with style is difficult; learning to do it is a lifelong job, and sometimes the effort isn't appreciated. Conformity, on the other hand, is relatively easy. That, I think, is why too much legal writing is needlessly dull.


Interview with George Gopen

Idealawg, by Stephanie West Allen, has an interview with George Gopen. While many writers, influenced by Strunk & White, place great importance on word choice, Prof. Gopen teaches that structure — arrangement of the words — is far more important than choice of words. For specifics, read the interview; then read one of Prof. Gopen's books: The Sense of Structure, or Expectations.


"I have a dream."

Today is a good day to visit American Rhetoric, which has a page devoted to Martin Luther King Jr.'s "I have a dream" speech, including both a video and the text of the speech. Besides being historic and inspirational, the speech is a fine example of rhetoric — in this case rhetoric in the service of moral persuasion. (Hat tip to Slaw.ca.)

A good example of Dr. King's rhetorical writing is his Letter from a Birmingham Jail. This letter is Dr. King's response to southern clergymen who questioned the wisdom and timeliness of his protests. In the letter, Dr. King employs rhetoric not only to justify the righteousness of his own actions, but also to prick the conscience of the clergymen. This too is a textbook example1 of rhetoric used for moral persuasion.
__________
1 The textbook is Classical Rhetoric for the Modern Student, pp. 301-19 and 478-83 (4th ed. 1999), by Edward P.J. Corbett and Robert J. Connors.


Open access, infinite content, and law reviews

For decades, law-review bashing has been a popular sport. See, for example, Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936); Richard A. Posner, Against the Law Reviews, Legal Affairs (Nov.-Dec. 2004). To the defense of the traditional student-edited law review comes Dan Hunter, in Open Access to Infinite Content (Or, "In Praise of Law Reviews"), 10 Lewis & Clark L. Rev. 761 (2006) (also available on SSRN). It's part of Lewis & Clark's vol. 10 symposium on open access and the future of legal scholarship.

The criticism of student-edited law reviews is that law students are not the best judges of scholarly legal writing. Dan's thesis is simple: open access to infinite content (a bit of which you're experiencing now) makes that criticism irrelevant. We're moving to an age where merit is determined, not by ability to get published (anyone with a computer can do that — I'm doing it right now), but by the quality of readership. These are interesting ideas not only for writers, editors, and publishers of law reviews, but also for anyone interested in how the medium of the Internet is affecting the dissemination of ideas.


Scott Wood, Sharpening Your Legal Writing Skills

The Fall 2006 issue of the Los Angeles Lawyer is billed as the "survival guide for new attorneys." One of the articles is Sharpening Your Legal Writing Skills, by Scott Wood, a clinical professor at Loyola Law School in L.A. It's just two pages long, so it can't possibly tell you everything you need to know about legal writing. Still, the advice is sound, and if you care enough to want to improve, Prof. Wood points you in the right direction. (Hat tip to Trial Ad Notes.)