the (new) legal writer

The color purple

Who puts the purple in purple prose? Not Prince, but the winners of the Bulwer-Lytton Fiction Contest. To read this year’s honorees, click here. (Hat tip to Legal Writing Prof Blog.)

Inspiration from Cardinal Newman via Sir Arthur

Here’s a quotation I spotted in chapter 7 of Arthur Quiller-Couch’s On the Art of Writing. It’s from Cardinal Newman’s description of a gentleman. For briefwriters, it’s something to print out and tape to their bathroom mirrors:

He is never mean or little in his disputes, never takes unfair advantage, never mistakes personalities or sharp sayings for arguments, or insinuates evil which he dare not say out… If he engages in controversy of any kind, his disciplined intellect preserves him from the blundering discourtesy of better perhaps, but less educated minds; who, like blunt weapons, tear and hack instead of cutting clean, who mistake the point in argument, waste their strength on trifles, misconceive their adversary, and leave the question more involved than they found it. He may be right or wrong in his opinion: but he is too clear-sighted to be unjust. He is simple as he is forcible, and as brief as he is decisive.

Painting with words

Poets often play with indentations and line lengths to paint a picture with their words. With a little imagination, writers of prose can do the same. For some good examples, see this post by Roy Peter Clark.

Sir Arthur on elegant variation

Arthur Quiller-Couch, On the Art of Writing 82–85 (1916):

An undergraduate brings me an essay on Byron. In an essay on Byron, Byron is (or ought to be) mentioned many times. I expect, nay exact, that Bryon shall be mentioned again and again. But my undergraduate has a blushing sense that to call Byron Byron twice on one page is indelicate. So Byron, after starting bravely as Byron, in the second sentence turns into ‘that great but unequal poet’ and thenceforward I have as much trouble with Byron as ever Telemachus with Proteus to hold and pin him back to his proper self. Half-way down the page he becomes ‘the gloomy master of Newstead’: overleaf he is reincarnated into ‘the meteoric darling of society’: and so proceeds through successive avatars—‘this arch-rebel,’ ‘the author of Childe Harold,’ ‘the apostle of scorn,’ ‘the ex-Harrovian, proud, but abnormally sensitive of his club-foot,’ ‘the martyr of Missolonghi,’ ‘the pageant-monger of a bleeding heart.’...
...
... The Gospel does not, like my young essayist, fear to repeat a word, if the word be good. The Gospel says, ‘Render unto Caesar the things that are Caesar’s’—not ‘Render unto Caesar the things that appertain to that potentate.’

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.

A simple trick for more effective self-editing

Ideally, every writer would have an editor — someone else to proofread and edit. Unfortunately, most lawyers and others who write for a living don’t have that luxury; we have to be our own editors.  How can we self-editors acquire that fresh set of eyes that a someone-else editor brings to the project?

One trick known to most writers is time. Between writing and editing, put the draft down, do something else for a while, and come back to it later. As Bryan Garner writes in The Winning Brief, “the more time you can put between the draft and the editing, the better your judge [your editor] will work.” Whether this gap is as long as several days or as short as 15 minutes, it will help you “look at your words through different eyes ....”

Here’s another trick for helping yourself see your own writing with fresh eyes: Change the typeface before printing it out for editing. This tip comes from Susan Bell’s book, The Artful Edit, by way of Gretchen Rubin and Joanna Young. I haven’t tried it myself yet, but it makes sense.
 

Hyperlinks in legal writing

For a while, I’ve realized that I can put a hyperlink in a Word document. But it never occurred to me to use that feature in legal writing, until I read this post by Australian barrister Stephen Warne, in which he describes how he used this feature to link to legal authorities cited in his writing. If you’re sending your client a Word or PDF document with legal citations, there’s no reason not to use this feature to give your client instant access to a cited authority.

Making the link is easy — bloggers do it in their sleep. For instructions, read Stephen’s post or this item from StudentCentral.

Consideration (or lack thereof) is thicker than blood

Today’s legal-writing tip: When writing a contract, don’t bother to write it in blood. A contract written in blood is no more enforceable than a contract written in ink. So held the court in Kim v. Son, No. 06CC02419 in the Orange County, CA Superior Court.

Here’s the story, as reported by Lowering the Bar: Mr. Kim invested $140,000 in companies run by Mr. Son. When the companies went belly-up, Messrs. Kim and Son met over drinks to discuss the matter. Mr. Son, apparently feeling bad about Mr. Kim’s loss, pricked his finger with a safety pin and wrote—in blood (and in Korean)—“Sir, forgive me. Because of my deeds, you have suffered financially.  I will repay you to the best of my ability.” Unfortunately for Mr. Kim, the promise was not enforceable (according to the Orange County Superior Court), because there was no consideration for the promise.

Drafting guru Ken Adams hypothesizes a scenario whereby Mr. Son includes some useless verbiage about consideration. Ken concludes that the verbiage would not have made a difference, because there was no actual consideration to support the verbiage.

But in Louisiana, the result may have been different. Louisiana law recognizes the “natural obligation,” which “arises from circumstances in which the law implies a particular moral duty to render a performance.” La. Civ. Code art. 1760. And “[a] contract made for the performance of a natural obligation is onerous.” La. Civ. Code art. 1761. So, if we change the names of Kim and Son to Kimbreaux and Sonnier, and place the blood-written contract in, say, the Napoleon House, then Sonnier may have had a natural obligation to Kimbreaux, making his blood-written promise enforceable. But the blood would not have made any difference—a Bic pen would have done the job equally well.

Ken Adams’s 10 dos and don’ts

Ken Adams has been blogging about contract drafting for a little over a year now. Last month, he compiled a list of 10 rules drawn from a year’s worth of posts. Says Ken,“The coverage is necessarily patchy, but it’s safe to say that in the past year I’ve been able to write about the issues that I feel most strongly about.” Spotty or not, it’s an excellent set of rules. If Ken feels strongly about these areas, the reason is probably that they address the areas most in need of reform.

Study and practice

Wayne Schiess, director of legal writing at the University of Texas Law School, has an excellent short article on things that all practicing lawyers can do—and should do—to improve their writing. All of us, whether we realize it or not, are professional writers. If we’re not doing the bare minimum things that Wayne suggests, then we are allowing our most important skill to erode.