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  Writing for Business and Pleasure
  Copyright by
Stephen Wilbers
  www.wilbers.com

Columns on Legal Writing

Judge puts poor writing on trial
First published by the Minneapolis Star Tribune on
March 19, 2004

Legal style can include wit, but not “legalese”
First published by the Minneapolis Star Tribune on
January 5, 2001

Lawyers are experts on persuasive writing
First published by the Minneapolis Star Tribune on
January 16, 1998

William Kunstler’s last will and testament
First published by the Minneapolis Star Tribune on September 8, 1995

The gentle art of writing to stupefy your reader
First published by the Minneapolis Star Tribune on March 11, 1994

Does anybody know why lawyers write the way they do?
First published by the Minneapolis Star Tribune on
December 11, 1992

  Writing for Business and Pleasure
  Copyright by
Stephen Wilbers
  www.wilbers.com

 

First published March 19, 2004

 Judge puts poor writing on trial

by Stephen Wilbers

Poor writing can be costly. It’s a point we writing instructors have been emphasizing for a long time, but now we have evidence – $31,450 in evidence, to be exact.

 

That’s the amount U.S. Magistrate Judge Jacob Hart reduced attorney Brian Puricelli’s court-awarded fees for submitting written work to the court that was “careless,” full of typographical errors, and “nearly unintelligible.”

 

Despite these shortcomings, Hart considered Puricelli’s courtroom work “smooth” and “artful” in securing a $430,000 verdict in a complicated civil rights case, Devore vs. City of Philadelphia, so he decided that his court-awarded fees should be paid at two rates – $300 per hour for the courtroom work, but only $150 per hour for the pleadings.

 

I can guess what you’re thinking: $150 per hour for bad writing? Heck, I’d be willing to write badly for a lot less than that.

 

In his fee opinion Hart wrote, “Mr. Puricelli’s complete lack of care in his written product shows disrespect for the court. His errors, not just typographical, caused the court a considerable amount of work. Hence, a substantial reduction is in order. We believe that $150 per hour is, in fact, generous.”

 

Even after defense lawyers complained about the typographical errors in his work, Puricelli continued to submit error-studded text. To illustrate the problem, the judge quoted a paragraph from Puricelli’s response, marking each typo with “[sic]”:

 

“As for there being typos, yes there have been typos, but these errors have not detracted from the arguments or results, and the rule in this case was a victory for Mr. Devore. Further, had the Defendants not tired [sic] to paper Plaintiff’s counsel to death, some type [sic] would not have occurred. Furthermore, there have been omissions by the Defendants, thus they should not case [sic] stones.”

 

(Note that Hart gave Puricelli a pass on the concluding comma splice. A period or semicolon should have separated the last two sentences.)

 

Furthermore, the judge pointed out, throughout the litigation Puricelli referred to the trial court as “the United States District Court for the Easter District of Pennsylvania.”

 

“Considering the religious persuasion of the presiding officer,” quipped Hart, “the ‘Passover’ District would have been more appropriate.”

 

To make matters worse, Puricelli committed the ultimate error: He misspelled the judge’s name, referring to him as the “Honorable Jacon Hart.”

 

Puricelli’s mistakes went beyond typos. Paragraphs and pages were missing from the original complaint he filed with the court and sent to defense counsel, the judge said.

 

“Mr. Puricelli’s lack of care caused the court, and I am sure, defense counsel, to expend an inordinate amount of time deciphering the arguments and responding, accordingly,” he wrote.

 

A chastened Puricelli said that he had not intended to insult the court and that he had learned a valuable lesson. “I’ll try to do a little better on my written work in the future,” he said.

Divisional deputy city solicitor Stephen Miller, the city’s lead lawyer in the case, approved of the judge’s decision. “The only regret I have,” he said, “is that the judge didn’t cut his fees even further.”

Writing for Business and Pleasure
  Copyright by
Stephen Wilbers
  www.wilbers.com


First published by the Minneapolis Star Tribune on January 5, 2001

 
Legal style can include wit, but not “legalese”

by Stephen Wilbers

You expect legal writing to be correct. You hope (pray?) that it is clear. But do you expect it to be funny?

 

If you think legal discourse is necessarily dry and devoid of humor, consider the following passage from Bryan Garner’s The Elements of Legal Style:

 

“Pay careful attention to structuring your thoughts simply and directly. If you do not, readers will respond much as Justice Maule once did in listening to an advocate: ‘Mr. Smith, do you not think by introducing a little order into your narrative you might possibly render yourself a trifle more intelligible? . . . I should like to stipulate for some sort of order. There are plenty of them. There is the chronological, the botanical, the metaphysical, the geographical, even the alphabetical order would be better than no order at all.’”

 

The author of the authoritative Dictionary of Modern Legal Usage, Garner himself offers plenty of wry humor in discussing the do’s and don’ts of legal style, to wit:

 

And/or. “Banish from your working vocabulary this ‘much condemned conjunctive-disjunctive crutch of sloppy thinkers.’”

 

As per. “Help stamp out his unrefined bit of legaldegook and commercialese.”

 

Commence. “Begin or start–do not commence.”

 

Deem. “Often unnecessary, and usually stilted. Try to avoid it–that is, deem it to be undesirable in your writing.”

 

Enclosed please find. “The phrase is swollen deadwood in lawyers’ correspondence.”

 

If and when. “Use whichever one you mean, but not both.”

 

Just deserts. “So spelled, but trite.”

 

Said, adj. “The most baneful word in legaldegook.”

 

Same, n. “A sorry substitute for a pronoun.”

 

There’s nothing like a good laugh (or at least a good chuckle) to get your attention–except perhaps a quiz. So to keep you on your toes, here goes. Choose the correct word or phrase:

 

1. The above-mentioned / These deeds were misfiled.

 

2. The court absolved the defendant of / from financial liability and from / of  any wrongdoing.

 

3. The aforementioned / This decision aggravated / annoyed the plaintiff.

 

4. Lenders have agreed to make certain loans, advances, extensions of credit or / and/or other financial accommodations to or for the benefit of Borrower.

 

5. As per your instructions /  As you instructed, we have served notice.

 

6. The witness told blatant / flagrant lies to the grand jury to cover up for his flagrant / blatant breach of trust.

 

7. We will commence / begin our investigation tomorrow.

 

8. I consider / deem the cost excessive.

 

9. The judge will doubtlessly / doubtless reprimand the jury.

 

10. We will effectuate / effect the new policies in time to prevent additional errors.

 

11. Enclosed please find / I have enclosed three copies of the contract for your signature.

 

12. If / If and when we reach an agreement, we will reopen the plant.

 

13. In our judgement / judgment, it would be unwise to petition the court at this juncture / at this time.

 

14. The murderer received his just deserts / just desserts.

 

15. Although said / the defendant’s wife left the premises before the police arrived, same / she turned herself in two hours later.

 

16. The ruling supersedes / supercedes all others, thereby rendering moot the allegation of willful / wilful / willfull negligence.

 

Scoring is simple: The correct choices are the first ones in the even-numbered sentences and the second ones in the odd-numbered sentences.

 

In addition to these commonly misused words and expressions, Garner identifies certain “vogue words” – such as bottom line, hopefully, liability-wise, state of the art, and worst case scenario – that “make you sound like an unthinking writer of ready-made phrases.”

 

His advice regarding these words and phrases: “Have done with them all.”

Writing for Business and Pleasure
  Copyright by
Stephen Wilbers
  www.wilbers.com

First published by the Minneapolis Star Tribune on January 16, 1998

Lawyers are experts on persuasive writing

by Stephen Wilbers

What’s the first thing you think about when you hear the word “lawyers”?

 

Jokes? Litigation? The incomprehensibility of legal writing?

 

For all the abuse we enjoy heaping on them, lawyers have a great deal to teach us about effective writing. You may be surprised to find the words “lawyers” and “effective writing” in the same sentence, but it’s true: When they’re not trying to pull the wool over our eyes with their arcane language or tormenting us with their convoluted sentence structure, they display a firm grasp of the techniques of persuasive writing.

 

Like anyone skilled in the art of argumentation, they are particularly adept at weighting evidence in their favor. Here’s how they do it:

 

Evoke sympathy for their subjects.

 

As we saw in the trial of Terry Nichols, the more you portray someone as a fully developed human being with positive attributes and meaningful relationships with other people, the harder it is for a jury to draw negative conclusions about that person’s actions.

 

As Helene Shapo, Marilyn Walter, and Elizabeth Fajans point out in Writing and Analysis in the Law, you can portray someone as “deserving of fair treatment” simply by referring to that person in a dignified way – as “Mr. Gonzales” rather than as “Gonzales” or “Petitioner,” for example.

 

Emphasize facts that support their case.

 

Lawyers focus on favorable facts. If their client misses successive mortgage payments and the bank begins proceedings to foreclose, for example, they portray their client as a responsible person who in the past has always made mortgage payments on time, who acted in good faith by notifying the bank about a temporary delay, who made partial payments, etc.

 

We all instinctively select facts that support our side of the argument. But lawyers are particularly adept at using direct quotes and at identifying and highlighting just the right details to create special emphasis. If it doesn’t fit, for example, you must acquit.

 

Rebut opposing arguments without giving them undue emphasis.

 

Lawyers know how to use paragraph structure to their advantage. They advance their own arguments in the beginnings and endings of paragraphs or sections, where those arguments will have natural prominence and are more likely to be remembered. They address opposing arguments in the middles of paragraphs or sections, where they will have less prominence and are less likely to be remembered.

 

Use the passive voice to de-emphasize facts that undermine their case.

 

Although your programmed grammar checker would have you believe that using the passive voice is an indictable felony, lawyers know better. They appreciate the value of passive constructions in downplaying the connection between questionable actions and their clients.

 

In defending a client against allegations of illegally soliciting campaign contributions, for example, they are more likely to write “Calls were made from the White House” than “The president called prospective donors from the White House.”

 

Use other parties as the subjects of sentences conveying unfavorable facts.

 

To create distance between their clients and damaging information, lawyers also use other parties as the subjects of their sentences. Just as a child is more likely to say “The table tipped over and the lamp broke” than “I knocked the table over and broke the lamp,” defense attorneys are more likely to say “Police found a 9mm pistol belonging to Mr. Smith” than “Mr. Smith dropped his 9mm pistol near the body.”

 

Use main clauses and subordinate clauses to control emphasis.

 

As every good writer knows, information placed in main clauses receives relatively more emphasis; information placed in subordinate clauses receives relatively less emphasis.

 

To illustrate this technique, Shapo et al. offer these sentences: “Although Paley is an excellent lawyer, his memory is poor”; “Although Paley’s memory is poor, he is an excellent lawyer.”

 

It’s all a matter of emphasis.

Writing for Business and Pleasure
  Copyright by
Stephen Wilbers
  www.wilbers.com

First published by the Minneapolis Star Tribune on September 8, 1995

William Kunstler’s last will and testament

by Stephen Wilbers

Depending on your point of view, William Kunstler was a relentless crusader for social justice or a self-serving seeker of publicity.

 

When he died on September 4, 1995, Harvard Law School Professor Alan Dershowitz, who represented Kunstler when he was cited for contempt of court while defending the Chicago Seven, said, “I have great compassion for God now because I think Bill is going to start filing lawsuits as soon as he gets to heaven.”

 

Can’t you just imagine William Kunstler filing lawsuits in heaven? For God’s sake, let’s hope he writes his briefs in plain English rather than in legalese. There are limits, I suspect, even to divine patience.

 

But I think Kunstler will go for plain English.

 

He may have had a penchant for hyperbole and high drama, but he also had a rare command of language. From his defense of the Chicago Seven to his arguments for dropping charges against Qubilah Shabazz, Kunstler could frame an issue in a broader social context with an incisiveness few people can muster.

 

And what about his last will and testament? I’ll bet he insisted on straightforward English rather than that bizarre, convoluted language so many attorneys are enamored with.

 

I wonder what Kunstler would have done if he had been presented with a draft copy that read, “I give and bequeath my clothing, jewelry, ornaments, automobile or automobiles, household furniture and furnishings, books and personal effects of every kind and nature used about my person or home to my said wife if she survives me.” I’ll bet he would have changed it to “I bequeath all my possessions to my wife.”

 

And if he had seen a paragraph-long sentence that read, “Notwithstanding the above language of the previous article, if there should be in existence at my death a written statement or list written or signed by me purporting to dispose of items of personal property of mine then, in that event, such written statement or list shall take priority over the other dispositions of the previous article,” I’ll bet he would have changed it to “The only exception to this would be if I have left written instructions for disposing of certain items of personal property in some other fashion.”

 

And he would have gagged if he had seen something like “I intend that the gift made by this Article shall qualify for said marital deduction and I direct that my estate be administered, that the powers of my personal representative and trustee be exercised, that this will be construed and that all questions pertaining to this will be resolved in a manner consistent with that intention.”

 

I can just see him, in a few deft strokes of his pen, changing that gibberish to “I direct my personal representative and trustee to administer my estate so that the gift made by this Article will qualify for the marital deduction.”

 

And surely he would have rejected a mind-boggling sentence such as “Except as may be otherwise expressly directed or required by this will and in extension but not in limitation of the powers provided by applicable law, I hereby grant to the trustee as to any properties, real, personal, or mixed, at any time comprising a part of any trust hereunder and without the necessity of notice to or license or approval of any court of person, full power and authority during the term of such trust in my trustee’s continuing sole discretion,” and replaced it with “I hereby grant to the trustee full power and authority to administer the trust.”

 

May you rest in peace, William Kunstler.

 

And may your colleagues use language we mortals can understand.

Writing for Business and Pleasure
  Copyright by
Stephen Wilbers
  www.wilbers.com

First published by the Minneapolis Star Tribune on March 11, 1994

The gentle art of writing to stupefy your reader

by Stephen Wilbers

It seemed like a harmless request.

 

I was presenting a writing workshop at a major Twin Cities foundation (hereinafter referred to as “The XYZ Foundation”) when one of the staff members asked me to critique a contract written by an independent contractor.

 

Sure, I said. Happy to take a look. 

 

Before I realized what was happening, I was hopelessly lost in a sentence that seemed to have come from an alien planet, an infinite loop with neither beginning nor end:

 

“Contractor desires to provide services to The XYZ Foundation and The XYZ Foundation desires that Contractor provide such services to The XYZ Foundation upon all of the terms and conditions hereinafter set forth.”

 

What is the meaning of this strange language? I asked myself. Does it mean anything more than “Contractor agrees to the following conditions”? Surely there is more to it than that.

 

But it was too late for rational thought. Already my eyes were glazing over, my head falling forward, the drool running down my chin.

 

At the next sentence I nearly lost consciousness: “NOW THEREFORE, in consideration of the premises and the covenants hereinafter contained, the parties agree as follows.”

 

Was it theoretically possible, I wondered, my head spinning like a top, for “premises” to be “hereinafter contained”? Don’t “premises” come before and “hereinafters” come after?

 

The next sentence gave me hope that I might survive this ordeal after all: “The duration of this Agreement will be from April 1, 1994, the effective date of this Agreement, until August 31, 1994, unless earlier terminated by either party, with or without cause, upon 30 days’ prior written notice.”

 

Now here was something I could comprehend: “30 days’ prior written notice.” But I lost confidence when I noticed the word “prior.” Was “30 days’ prior written notice” the same as “30 days’ written notice”?

 

Surely not. Why would an author as skilled with language and nuance as this one include the word “prior” if it had no meaning? It must be a trick!

 

My lightheadedness was now accompanied by a desperate, sinking sensation in the pit of my stomach. I counted the steps from my desk to the bathroom. Could I make it in time?

 

At the next sentence I began to groan audibly: “The XYZ Foundation shall retain all property rights, title, and interest in any research, written products, computer analysis or systems, or other information or documentation, regardless of the method of retention or source, produced or developed by Contractor relating to the services performed and for which Contractor is reimbursed.”

 

I figured 40 steps if I walked, 20 if I went at a dead run.

 

When I read the next catalog of actions, I realized what the author was attempting: “The terms of this Agreement may not be altered, enlarged, supplemented, abridged, modified, nor any provisions waived except by an agreement in writing, signed by the parties.”

 

Here, methought, was a catalog more heroic than any in Homer’s Iliad and Odyssey, more authentic than any in Virgil’s Aeneid, and more dazzling than any in Milton’s Paradise Lost. This was an epic poem in the making.

 

As my mind drifted into a stupor, I dreamed of a story told by Richard Wydick in Plain English for Lawyers. In 1596 an English chancellor was so exasperated by the length of a 120-page document filed in his court that he had a hole cut through the center of the document, ordered the author’s head stuffed through the hole, and had him paraded for all to see at Westminster Hall.

 

Ah, sweet jurisprudence. What I wouldn’t give to have been there.

Writing for Business and Pleasure
  Copyright by
Stephen Wilbers
  www.wilbers.com

 

First published by the Minneapolis Star Tribune: December 11, 1992

 
Does anybody know why lawyers write the way they do?

 

by Stephen Wilbers

 

Why do lawyers write the way they do?

 

I’ve been asked that question so many times that I decided to see if I could find out. Here’s what I discovered.

 

At the University of Minnesota Law School bookstore I was astonished to find the same theme in every book I picked up: “Good legal writing is simply good writing.”

 

In The Little Book on Legal Writing, Alan Dworsky advises, “Don’t imitate casebook legalese when you write a memo or brief. Live lawyers don’t write like dead judges.” In Plain English for Lawyers, Richard Wydick argues that “Legal writing should not differ (without good reason) from ordinary, well-written English.”

 

Furthermore, parts the table of contents in Shapo, Walter, and Fajans’ Writing and Analysis in the Law looked as if they could have been lifted from any standard writing handbook: “Whenever Possible, Use Short, Concrete Subjects; Keep Your Sentences Relatively Short (under 25 words); Maintain Parallel Sentence Structure (Parallelism); Avoid Misplaced and Dangling Modifiers; Eliminate Unnecessary Words.”

 

Eliminate unnecessary words? I looked again at the cover to make certain I was holding a book on legal writing. If this is how legal writing is being taught these days, I wondered, why do lawyers write the way they do?

 

I called one of my lawyer friends and asked, “What gives?”

 

“Well,” she said, “law is like any other profession. Some people have had good training, and others haven’t. Some write well, and others don’t.”

 

Not only did her explanation make perfect sense, but it was rendered, I noted, in short, easy-to-understand sentences that followed impeccable parallel structure. Needless to say, I was mightily impressed. But still I doubted that I had uncovered the whole truth.

 

Then I read in Charrow and Erhardt’s Clear & Effective Legal Writing that although some of the unique characteristics of legal writing “reflect the complexity of legal concepts and the nuances of the legal process,” other characteristics survive only because of habit, including “overly long, complicated sentences, intrusive phrases and clauses, redundant phrases, poorly organized sentences and paragraphs, and a host of similar problems.”

 

Charrow and Erhardt identified these causes:

 

■Archaic constructions. “Certain aspects of legal language,” they noted, “have evolved separately from the rest of the English language.” Other phrases and clauses, such as “malice aforethought” and “revoking all wills and codicils by me made,” come from “grammatical constructions that are no longer in general use.”

 

Precedent. Legal language comprises certain “words, phrases, or larger structures whose meanings have been ‘stabilized’ through legal interpretation” and that “appear to embody the power of the law.” Once the courts have interpreted these words and phrases in a particular way, lawyers tend to play it safe and keep using the same “frozen” language.

 

Coupling of French and Latin terms with English terms. This peculiar type of redundancy evolved “as the use of French and Latin began to give way to English in the courts.” Fearing that “some of the highly specialized meanings of the legal vocabulary would be lost,” the lawyers of the time were reluctant to drop the French and Latin as they began using English.

 

Sociological factors. The authors explained that “the ritualistic quality of some legal discourse” is intended to underscore the power of the law. “A society needs laws, and legal incantation may help persuade people to follow them.”

 

Charrow and Erhardt’s conclusion: “There may be legal reasons (either because of precedent or statute) for retaining many terms, but there are few valid legal reasons for clinging to Latinisms (prima facie, supra); strings of synonyms (null and void; any and all; rest, residue, and remainder); or archaic words and phrases (witnesseth, thereinabove, hereinbefore).”

 

With this, I knew, my search had ended.

 

So from this day henceforward I will acknowledge and confess, give, devise, remise, release, forever discharge, and bequeath the aforesaid knowledge for the rest, residue, and remainder of my days on this earth.

 

Res judicata et nolo contendere.

 

 

 

 

 

 

 

 

 

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