Like rappers and shock-jocks, lawyers are guilty of cheapening language, and in the process we have made our profession less civil. So says Kenneth P. Nolan in this article from the Summer 2007 issue of Litigation. Take a few minutes to read it. And try to remember that invective is rarely persuasive.
Holden Oliver at What About Clients? exhorts us to proofread our invoices and everything else that our clients read. Why? Because the reader is the client.
He also reminds us that “invoices, if done correctly, are a great way to communicate what you've done for a client and they can even serve as a marketing tool.” If we’re trained in persuasive writing, then we ought to apply that training to our time entries—and just about everything else we write.
The DRI magazine, For the Defense, runs a regular feature called “Writer’s Corner,” a one-page column on legal writing, written by a different contributor every month. I’ve written several of them over the last few years,1 and I’m scheduled to write it again for an upcoming summer issue. The deadline for my draft is May 30.
There’s just one problem: I have yet to think of a topic. But rather than rack my brain thinking of one, I thought I’d ask the largest group of legal-writing devotees I can find in one place—you—for some ideas. The topic must be something that: (1) can be covered in 900 words; (2) has not been covered in a recent “Writer’s Corner” column; and (3) I know enough about to write an original column.2
So if you have an idea, please leave a comment. Thanks.
1. To read some of my past Writer’s Corner” columns, click on the Articles by me link under the Categories heading at right.
2. Yes, I know I messed up my parallel construction with that third item. But at least it fits grammatically with what precedes the enumeration.
To emphasize something in writing, many lawyers resort to typographical gimmicks: italics, bold, underlining, all capital letters, or some combination of these. To de-emphasize something, many lawyers either bury it in a footnote or, worse, omit it completely, hoping that if ignored, the thing will just go away.
There is a better way. Actually there are many better ways. In To Go Boldly Without Bold, Dr. Benjamin R. Opipari describes several more sophisticated ways to emphasize or de-emphasize things. His lessons are similar to those taught by Dr. George D. Gopen; they involve understanding the reader’s expectations about the structure of sentences and paragraphs, and using various techniques to either meet those expecations or (every now and then) to upset them.
One thing I learned from Dr. Opipari’s article is not to overuse the em-dash. He recommends using the em-dash sparingly, “to destroy the natural direction of the sentence, to forcefully move it in another direction so that what comes after is a sudden shift in meaning and a surprise to the reader. In other words, the dash should break the readers’ expectations of what they thought was coming. Dashes at the end of a clause should reveal something surprising, ironic, or shocking.” He suggests that “[t]he writer who uses five or six dashes on a page for any reason forfeits any expectation of surprise.”
I’m not sure that em-dashes should be restricted to the degree that Dr. Opipari suggests. Bryan Garner, for one, calls the em-dash “the second most underused mark of punctuation” in legal writing, and recommends using it to “clarify a sentence that is clogged up with commas.”1 Still, I must acknowledge my own overuse of the em-dash to create emphasis, probably because it’s too easy: much easier than restructuring a sentence or a paragraph. So my personal short-term resolution is not to banish the em-dash, but to use it no more than once per page.
1 Bryan A. Garner, A Dictionary of Modern Legal Usage 715 (2d ed. 1995).
Daily Writing Tips has an interesting post titled “Cna Yuo Raed Tihs?” The idea is that, if the first and last letter of the word are in the right place (or just the first letter of a three-letter word), then you can probably read the word even if all the letters between the first and last are jumbled.
This phenomenon illustrates the importance of careful proofreading—one word at a time. If you accidentally transpose two letters in the middle of a word, then the faster you read the writing, the smaller the chance that you’ll notice the error.
This phenomenon also illustrates why running a spell check is a good idea. Although you shouldn’t rely exclusively on spell check, using it in conjunction with careful human proofreading can’t hurt; more likely it will catch some mistakes that a human proofreader is prone to miss.
Like other circuit courts’ web sites, the U.S. Fifth Circuit’s web site has an on-line copy of the Federal Rules of Appellate Procedure, the Fifth Circuit’s local rules, and its internal operating procedures. Another valuable document on the Fifth Circuit’s web site is the Practitioner’s Guide to the U.S. Court of Appeals for the Fifth Circuit. If you practice before the Fifth Circuit, then be aware of these on-line resources, bookmark them, and refer to them often.
If you practice before one of the other federal circuit courts, then visit the court’s web site; you should find at least a copy of the F.R.A.P. and the most up-to-date version available of the court’s local rules. You may even find a practitioner’s guide. If these resources are available on the court’s web site, then you’re doing your clients and yourself a disservice if you don’t consult them every time you communicate with the court.
If you’re going to be near D.C. on July 25, and you have $600 to spend on CLE, then you may want to register for Making Your Case, a five-hour seminar to be presented at the Kennedy Center by Bryan A. Garner and Justice Antonin Scalia. The seminar will be based on their book by the same name, which by now must be a best seller.
White people love rules. It explains why so they get upset when people cut in line, why they tip so religiously and why they become lawyers. But without a doubt, the rule system that white people love the most is grammar. It is in their blood not only to use perfect grammar but also to spend significant portions of time pointing out the errors of others.
If you wish to gain the respect of a white person, it’s probably a good idea that you find an obscure and debated grammar rule such as the “Oxford Comma” and take a firm stance on what you believe is correct. This is seen as more productive and forward thinking that simply stating your anger at the improper use of “it’s.”
Presentation matters. With that thought in mind, I’ve redesigned The (New) Legal Writer. Or more accurately, I’ve installed one of TypePad’s prefabricated designs, one called “Minimalist Red.” If you don’t see the new design, you may need to hit the “refresh” or “reload” button on your browser.