Sometimes we don’t notice transposed letters.

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.

A reminder about the 5th Circuit’s “Practitioner’s Guide”

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.

A lesson for editing

A few days ago, I posted this video on my other blog. Today it occurred to me that the video contains a lesson for legal writers. Watch the video, then read the lesson below.

If you’re like me, then you correctly counted the number of passes the white team made by focusing all your attention on that task. The cost of your focus was that you missed the moonwalking bear. But don’t feel bad about that—your task was to count the number of passes, not to keep a lookout for moonwalking bears. If you’d peeled your eyes for things like moonwalking bears, you could not possibly have correctly counted the number of passes.

Your brain is not wired to do both things at the same time. You can correctly count the number of passes the white team makes only if you focus all your attention on that task. But when you do that, you miss the moonwalking bear. You see the moonwalking bear only when you look for him and forget about counting the passes. Let’s call this “the moonwalking-bear phenomenon.”

What does this lesson have to do with legal writing? The lesson is to edit in stages, with each stage focusing on one task. Bryan Garner, for instance, recommends two levels of editing—a micro level and a macro level—with each level encompassing eight different tasks. That means 16 different editorial passes over the document, with each pass focused on one task.1

That sounds like a lot of work, and it is. But if the brief is important, then you’re probably going to proofread it 16 times anyway. And 16 focused proofreading sessions will likely be more effective than 16 unfocused sessions.
1 Bryan A. Garner, Legal Writing in Plain English 138–39 (2001). As an illustration, here are Garner’s Level One (micro level) edits:

  1. Cut or reword pointless legalisms.
  2. Convert be-verbs into stronger verbs.
  3. Convert passive voice into active voice unless there’s a good reason not to.
  4. Change –ion words into verbs when you can.
  5. Check every of to see whether it’s propping up a wordy construction. If so, rephrase.
  6. Check for misused words, faulty punctuation, and other mechanical problems.
  7. Try to cut each sentence by 25%.
  8. Read aloud, accenting the final word or phrase in each sentence. Does it read naturally?

You can never be too careful.

The past several days, I’ve been working on a U.S. Fifth Circuit brief. It’s a moderately sized brief: 45 pages of substance (double-spaced, 14-point typeface), about 9,650 words. Today was the filing deadline. I had read, re-read, and re-re-read this brief, so I thought it was in pretty good shape. But I decided yesterday evening to give it one more good proofreading. To prevent myself from skimming, I used a big fat ruler to make sure I read no more than one line at a time. What I found was embarrassing: a total of 71 things that needed to be fixed. Here’s the breakdown:

  • Inconsistent form in record citations: 7
  • Grammar errors: 1
  • Verbiage: 8
  • Missing record citations: 25
  • Record-citation errors: 9
  • Miscellaneous things needing to be fixed: 21

So I ironed out the glitches and, this morning, got the thing to photocopying. I got back a good-looking pile of briefs ready to be filed, and I did something I always do: I checked each copy individually, page by page. In years past, this ritual has caught some embarrassing errors before they left the office: things like missing pages and pages copied upside down. Today the photocopy people did an outstanding job. Copy after copy looked great. That is, until I got to the third-to-last copy — which was missing the back cover. That copy did not leave the office. (I should say that the photocopy folks’ batting average is way better than mine. I made 71 mistakes; they made only one.)

The photocopy glitch was no big deal, because I always order a couple of extra copies just in case. To file and serve this brief, I needed exactly 13 copies. I ordered 15. So after pulling the bad one out of the batch, I still had one copy to spare.

The Fifth Circuit also requires filing and service of an electronic copy of the brief, either on CD or floppy disk. I found out that our photocopy department can make attractive CD labels to stick on a CD. For filing and serving, I needed 4 CDs with pretty labels. I ordered 5. This morning, when I copied the brief to the CDs, I found that one of the CDs was bad. No problem; I tossed that one in the trash and still had enough for filing and serving.

The lessons I learned today:

  • If you’ve read and re-read that brief so many times that you’re sick of it, it probably needs one more painstaking proofreading before it’s ready to file.
  • Always order one or two more copies than you think you’ll need, so that if something goes wrong, you’ll still have enough copies.


Evan Schaeffer has an excellent tip for legal writers who struggle to find the right words: Forget that you’re writing a brief. Instead, pretend that you’re writing a letter to someone you’re comfortable with. Says Evan, “Try to communicate what you are trying to say in a way that comes naturally to you—that is, exactly as you do when you're writing a letter or an email to someone you know.”

If you must use a form file

A couple of years ago, I wrote a post on my other blog titled Burn your form file. Judging from the comments, it seems this suggestion — an exercise in hyperbole — was controversial. Today I would add that my original advice was meant for litigators only, and particularly for writing that is (or should be) persuasive; I don’t know enough about non-litigation practices to know whether forms are beneficial in those practices.

I bring all this up because a few days ago, Roy Jacobsen posted an excellent bit of advice for writers who find forms useful: Put an expiration date on them. “When it reaches that date,” Roy advises, “stop using it. Take a long hard look at it and ask yourself if it needs cleaning up or revising. And maybe; you’ll decide that you should toss it in the dustbin and start fresh.”

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.’

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.

Physician, heal thyself.

Here’s an excellent tip from Eugene Volokh, via The Blawgraphy:

When you’re editing someone else’s work — for instance, if you’re a student who’s required to edit a classmate’s paper, or a law review editor editing a faculty member’s work — ask yourself, “What have I learned about my own paper from editing this other paper?”

As with all attempts to see the flaws in one’s own work, this isn’t easy to do well. But it’s good to try. For instance, if you see some arguments that were meant to be rhetorically flowery but come across to the reader (you) as mere bloviation, ask yourself: Is there similar rhetoric in my article that I like but other readers may be turned off by? If the sarcasm in the article you’re reading comes across as stridency or excessive combativeness, ask yourself whether your work suffers from the same problem. If you’re seeing lots of redundancy or needless abstraction, look over your own work with an eye towards finding the same problems.