The Lawyer 039 s Guide to Writing Well Second Edition

the l awyer’s gui de to wri t i ng well the lawyer’s guide to writ ing well Tom Goldstein Professor, Columbia School of Journalism Columbia University Jethro K Lieberman Associate Dean for Academic Affairs, Professor of Law, and Director, The Writing Program New York Law School s e c o n d e d it io n University of California Press Berkeley / Los Angeles / London University of California Press Berkeley and Los Angeles, California University of California Press, Ltd London, England ᭧ 2002 by The Regents of the University of California Library of Congress Cataloging-in-Publication Data Goldstein, Tom The lawyer’s guide to writing well / Tom Goldstein and Jethro K Lieberman.—2nd ed p cm Includes bibliographical references and index ISBN 0–520–90164-9 Legal composition KF250 G65 2002 808’.06634—dc21 I Lieberman, Jethro Koller II Title 2002009717 Manufactured in the United States of America 10 09 08 07 06 05 04 03 02 01 10 The paper used in this publication is both acid-free and totally chlorine-free (TCF) It meets the minimum requirements of ANSI/ NISO Z39.48–1992 (R 1997) (Permanence of Paper) To Leslie and Jo contents preface pa r t i pa r t ii pa r t iii 10 11 12 ix why lawyers wri t e p o o r l y Does Bad Writing Really Matter? Don’t Make It Like It Was the process of w r it in g Ten Steps to Writing 37 Of Dawdlers and Scrawlers, Pacers, and Plungers: Getting Started and Overcoming Blocks The Mechanics of Getting It Down: From Quill Pens to Computers Lessons from a Writing Audit Lawyers as Publishers: Words Are Their Product m anaging your pr o s e Writing the Lead 79 Form, Structure, and Organization 8 Wrong Words, Long Sentences, and Other Mister Meaners Revising Your Prose 153 Making Your Writing Memorable notes 199 usage notes 209 an editing checklist e d i t i n g e x e rc i s e s 229 237 s u g g e s t e d r e v i s i o n s t o e d i t i n g e x e rc i s e s reference works 249 acknowledgments about the authors index 269 257 267 241 preface The first edition of this book was written in 1988, at a time when many critics were bemoaning the state of legal writing but few were doing anything about it Between October 1987 and June 1988, we asked 650 people familiar with legal writing—practicing lawyers, judges, professors, writing instructors, and journalists who report on legal topics— what bothered them most about the way lawyers write We not pretend that our survey was scientific: We sent a four-page questionnaire to people listed on our Rolodexes As journalists we had covered law and the legal profession since the early 1970s for a variety of news media, and our list included thoughtful lawyers and writers in half the states and every major city; most major law firms, scores of smaller firms, and courts; law schools; and newspapers, magazines, and broadcast stations across the country The answers from 300 respondents inform a portion of this book People named in the text but not identified in the notes were respondents and are identified in the acknowledgments Unattributed statements about what lawyers, judges, professors, writing instructors, and journalists “think,” “feel,” or “believe” are drawn from the statements of these respondents, as are some of the displayed quotations In the dozen years since the first edition appeared, there have been vast changes in the technology of communications—the ways in which lawyers produce and distribute their letters, memoranda, briefs, and other documents In the late 1980s, desktop computers were beginning to find their way into lawyers’ offices, but probably few lawyers used them regularly or proficiently (Indeed, lawyers at some firms told us they were forbidden to touch a computer; managing partners in those days viewed the “word processor” as a tool for secretaries and typists, not professionals.) By today’s standards, early desktop computers were ix ACKNOWLEDGMENTS 263 Prof Arthur R Miller, Harvard Law School, Cambridge Prof Richard H Miller, Brooklyn College, Brooklyn, New York Herbert Mitgang, The New York Times, New York City Prof Norval Morris, University of Chicago School of Law, Chicago Alan B Morrison, Public Citizen, Inc., Washington, D.C Justice Stanley Mosk, California Supreme Court, San Francisco Daniel B Moskowitz, McGraw-Hill, Inc., Washington, D.C Homer E Moyer, Miller & Chevalier, Washington, D.C Hon William Hughes Mulligan, Skadden, Arps, Slate, Meagher & Flom, New York City Betty Southard Murphy, Baker & Hostetler, Washington, D.C Hon S Michael Nadel, Criminal Court, New York City Stan Naparst, Albany, California Stephen Natelson, Natelson & Ross, Taos, New Mexico Robert Stuart Nathan, writer, New York City Hon Richard Neely, Supreme Court of West Virginia, Charleston Maurice N Nessen, Kramer, Levin, Nessen, Kamin & Frankel, New York City Prof Charles R Nesson, Harvard Law School, Cambridge Prof Richard K Neumann, Jr., Director, Legal Writing, Hofstra University School of Law, Hempstead, New York Prof Stephen A Newman, New York Law School, New York City Prof Jacqueline Nolan-Haley, Fordham University School of Law, New York City J Michael Parish, LeBoeuf, Lamb, Leiby & Macrae, New York City Hon Robert Patterson, Jr., United States District Court, Southern District of New York, New York City Robert S Peck, American Bar Association, Washington, D.C Prof Michael Perlin, New York Law School, New York City Kenneth A Plevan, Skadden, Arps, Slate, Meagher & Flom, New York City Milt Policzer, San Francisco Recorder, San Francisco Hon Richard A Posner, United States Court of Appeals, Seventh Circuit, Chicago Prof Michael Powell, Department of Sociology, University of North Carolina, Chapel Hill Llewelyn Pritchard, Karr, Tuttle, Koch, Campbell, Jawer, Morrow & Sax, Seattle Anthony E Pucillo, West Palm Beach, Florida Henry Putzel, Jr., Retired Reporter of Decisions, United States Supreme Court, Munsonville, New Hampshire Henry Putzel III, lawyer, New York City Prof Jill J Ramsfield, Georgetown University Law Center, Washington, D.C 26 ACKNOWLEDGMENTS Charles A Reich, writer, San Francisco Prof Chris Rideout, University of Puget Sound School of Law, Tacoma, Washington Simon H Rifkind, Paul, Weiss, Rifkind, Wharton & Garrison, New York City Marjorie Rawls Roberts, Bureau of Internal Revenue, St Thomas, V.I Charles Robinowitz, lawyer, Portland, Oregon T Sumner Robinson, Editor, The National Law Journal, New York City Timothy Roble, Ducker, Gurko & Roble, Denver Salvatore A Romano, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C Prof Marjorie D Rombauer, University of Washington School of Law, Seattle Andy Rooney, CBS-TV, New York City Prof Maurice Rosenberg, Columbia University School of Law, New York City Hon Albert M Rosenblatt, Appellate Division of State Supreme Court, New York City David Rosenbloom, Orrick, Herrington & Sutcliffe, San Francisco C Thomas Ross, Craige, Brawley, Lipfert & Ross, Winston-Salem, North Carolina Prof Donald Rothschild, George Washington Law School, Washington, D.C Arthur W Rovine, Baker & McKenzie, New York City Prof Thomas D Rowe, Jr., Duke University School of Law, Durham, North Carolina Prof Zick Rubin, Brandeis University, Waltham, Massachusetts Prof David Rudenstine, Benjamin N Cardozo School of Law, New York City Jerry W Ryan, Crowell & Moring, Washington, D.C Elizabeth Sacksteder, Articles Editor, Yale Law Journal, New Haven Joseph R Sahid, Cravath, Swaine & Moore, New York City Hon Leonard B Sand, United States District Court, Southern District of New York, New York City Prof Frank E A Sander, Harvard Law School, Cambridge Justice Leonard H Sandler (deceased), Appellate Division of State Supreme Court, New York City David L Sandor, Simon, McKinsey, Miller, Zommick, Sandor & Dundas, Irvine, California John P Scanlon, Edelman Group, New York City Milton R Schlesinger, After & Hadden, Cleveland Prof David Schoenbrod, New York Law School, New York City Prof Peter H Schuck, Yale Law School, New Haven ACKNOWLEDGMENTS 265 Allen G Schwartz, Proskauer Rose Goetz & Mendelson, New York City Victor E Schwartz, Crowell & Moring, Washington, D.C Melvin L Schweitzer, Rogers & Wells, New York City Eric A Seiff, Scoppetta & Seiff, New York City Prof David L Shapiro, Harvard Law School, Cambridge Prof E Donald Shapiro, New York Law School, New York City Ronald M Shapiro, Shapiro & Olander, Baltimore Prof Marjorie Silver, New York Law School, New York City Leon Silverman, Fried, Frank, Harris, Shriver & Jacobson, New York City Robert Siverd, Penn Central lawyer, Stamford, Connecticut Neil Skene, Executive Editor, Congressional Quarterly, Washington, D.C Jonathan A Small, Debevoise & Plimpton, New York City Chesterfield Smith, Holland & Knight, Miami Prof Eva M Soeka, Marquette University Law School, Milwaukee Justin A Stanley, Mayer Brown & Platt, Chicago John H Stassen, Kirkland & Ellis, Chicago Jacob A Stein, Stein, Mitchell & Mezines, Washington, D.C Carl Stern, NBC-TV, Washington, D.C Gerald Stern, Administrator, New York State Commission on Judicial Conduct, New York City Prof Christopher D Stone, University of Southern California Law Center, Los Angeles Fred M Stone, Executive Vice President & General Counsel, Jamie Securities, New York City Hon Eugene B Strassburger III, Court of Common Pleas, Allegheny County, Pittsburgh Prof James F Stratman, Graduate School of Industrial Administration, Carnegie-Mellon University, Pittsburgh Prof Peter L Strauss, Columbia University Law School, New York City Fern Sussman, Executive Secretary, Association of the Bar of the City of New York, New York City Phil Talbert, UCLA Law Review, Los Angeles Peter Tannewald, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C Stuart Taylor, Jr., The American Lawyer, Washington, D.C M Margaret Terry, Lubell & Lubell, New York City Texas Law Review staff, 1987–1988, Austin Evan Thomas, Newsweek, Washington, D.C Robert Tierney, AT&T, New York City Sean Tierney, Mudge Rose Guthrie Alexander & Ferdon, New York City Richard J Tofel, Gibson, Dunn & Crutcher, New York City Jay Topkis, Paul, Weiss, Rifkind, Wharton & Garrison, New York City R Edward Townsend, Townsend Rabinowitz Pantaleoni & Valente, New York City 26 ACKNOWLEDGMENTS Dean David G Trager, Brooklyn Law School, Brooklyn, New York Prof Nicholas Triffin, Pace University School of Law, White Plains, New York Thomas R Trowbridge III, Donovan Leisure Newton & Irvine, New York City Scott F Turow, Sonnenschein Carlin North & Rosenthal, Chicago Gerald Uram, Davis & Gilbert, New York City Andrew Vachss, lawyer and author, New York City Prof Jon M Van Dyke, University of Hawaii, William S Richardson School of Law, Honolulu Cyrus Vance, Simpson Thacher & Bartlett, New York City Prof Robert Volk, Director, First-Year Writing Program, Boston University School of Law, Boston George Vradenburg III, General Counsel, CBS, New York City Hon Sol Wachtler, New York Court of Appeals, Albany Hank Wallace, consultant, Washington, D.C Irene C Warshauer, Anderson Russell Kill & Olick, New York City Kelly R Welsh, Corporation Counsel, Chicago Stephen Wermiel, The Wall Street Journal, Washington, D.C Edwin J Wesely, Winthrop, Stimson, Putnam & Roberts, New York City Roger Wilkins, Institute for Policy Studies, Washington, D.C Christopher Wren, Wisconsin Department of Justice, Madison Melvin Wulf, Beldock Levine & Hoffman, New York City Hon William G Young, United States District Court, Boston Prof Irving Younger (deceased), University of Minnesota Law School, Minneapolis Lois Young-Tulin, Wyncote, Pennsylvania Prof Donald H Zeigler, New York Law School, New York City Sidney Zion, writer, New York City about t he aut hors TOM GOLDSTEIN Tom Goldstein is professor of journalism at the Graduate School of Journalism at Columbia University, where he served as dean from 1997 to 2002 He is also former dean of the Graduate School of Journalism at the University of California, Berkeley He has been a teacher and journalist on both coasts From 1973 to 1979 he covered legal affairs for the metropolitan, business, and national desks of the New York Times In 1988 he contributed to the law page of the Times During the 1970s he taught courses on law and journalism as an adjunct professor at the New York University Graduate School of Journalism During the 1983–1984 academic year, he served as the Gannett Distinguished Visiting Professor at the University of Florida, at Gainesville The following year he joined the faculty at Berkeley, where he taught courses on newswriting, ethics, and mass media He was appointed a full professor in 1987 and served as dean from 1988 to 1996 Professor Goldstein is a graduate of Yale College, Columbia Graduate School of Journalism, and Columbia Law School In 1970, while still in law school, he served as the first editor of Juris Doctor, a magazine for young lawyers that, at its peak, had a monthly circulation of 150,000 After law school, on a Ford Foundation grant, he spent a year studying criminology at Cambridge In addition to the New York Times, he has worked at the Buffalo Evening News, the Associated Press, the Wall Street Journal, and Newsday He is a member of the New York bar From 1980 to 1982 he served as press secretary for Mayor Edward I Koch After leaving the mayor’s staff, he began to freelance, a career he still pursues His articles, on media, legal, and political subjects, have appeared in Rolling Stone, The Nation, Columbia Law Review, Columbia Journalism Review, and California Magazine In the last several years, he has lectured widely—in Hawaii, Alaska, Oklahoma, Texas, Illinois, Arizona, Israel, Spain, Japan, at the Kennedy School at Harvard University, and at the New York City Bar Association—on the press and legal subjects He is the author of The News at Any Cost (Simon & 267 26 ABOUT THE AUTHORS Schuster, 1985), a critique of press ethics; A Two-Faced Press (Twentieth Century Fund, 1986), an examination of social responsibility and the press; and editor of Killing the Messenger (Columbia University Press, 1988), a volume of press criticism JETHRO K LIEBERMAN Jethro K Lieberman is associate dean for academic affairs, professor of law, and director of the Writing Program at New York Law School, and adjunct professor of political science at Columbia University Since 1982 he has taught Advanced Writing Skills for Lawyers, first at Fordham University Law School, where he began his teaching career, and since 1985 at New York Law School He also teaches constitutional law and has taught administrative law, dispute resolution, and legal method Dean Lieberman took his B.A at Yale, J.D at Harvard Law School, and Ph.D (in political science) at Columbia University, and has had a broad career in writing, with experience in books, newspapers, magazines, and newsletters The first of his twenty-four books was published in his third year at Harvard, where he was also an editor in the Second-Year Writing Program and contributing editor of the Harvard Civil Rights–Civil Liberties Law Review He has been an associate in a large Washington law firm, a Navy lawyer, and general counsel of a trade publishing house in New York He was the first legal affairs editor of Business Week (1973–1982), was founding editor of Alternatives to the High Cost of Litigation, a monthly newsletter on corporate dispute resolution (1982–1985), and has written for many periodicals and journals He was a charter member of the American Bar Association’s Commission on Public Understanding About the Law, special consultant to the Council on the Role of Courts, and principal editor of its report The Role of Courts in American Society (West, 1984) He is a member of the New York and District of Columbia bars Two of his books—The Litigious Society (Basic Books, 1981; Harper Colophon, 1983) and The Enduring Constitution (West Publishing Co and Harper & Row, 1987)—were awarded the Silver Gavel, the American Bar Association’s highest prize for writing The first edition of his A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning (University of California Press, 1999) was cited by the American Library Association as an “Outstanding Reference Work of the Year” and was awarded a Gavel Certificate of Merit He is co-author of a legal writing text, The Lawyer’s Craft (Anderson Publishing Co., 2002), designed for first-year writing courses in law school i ndex Abrams, Floyd, Alice’s Adventures in Wonderland (Carroll), 149 ALWD Citation Manual, a Professional System of Citation (Dickerson), 66, 203n1 American Bar Association, antecedents of pronouns, 136–37, 234 apostrophes, 164 appositives, commas with, 161 The Associated Press Style Book, 66 associates: job screening of, 69; writing audit of, 64–65; writing responsibilities of, 68, 72 as to, 115 Auchincloss, Louis A., Auden, W H., 56 audience: judges as, 85; reader expectations of, 107–9; and style/tone considerations, 177–79, 186; as the topic, 96 audit of writing process See writing audit Auerbach, Stuart, 19 Bablitch, William, 81, 85 Bacon, Sir Francis, 14, 102 Balabanian, David M., 93–95 Balzac, Honore´ de, 56 Barton, J H., 56 Barzun, Jacques, 24, 29, 37 Becker, Edward R., 183 Bellacosa, Joseph W., 103, 157 Benson, Robert W., 19 Bentham, Jeremy, 14 Bernstein, Theodore M., 142, 160, 175 billing costs: of legal documents, 22–23; of newsletter production, 67 Blackmun, Harry, 40 Bliven, Bruce, Jr., 203n10 blocks See writer’s blocks The Blue Book, 66, 164, 203n1 Boccardi, Louis, 86 Brandeis, Louis D., 153, 176; in Whitney v California, 193–95 Brennan, William J., 160 briefs: audience of, 85; with buried leads, 81–83; with chronological leads, 84; with empty leads, 83–84; example of, as disorganized, 89–93; inverted pyramid approach to, 79–80; length limitations on, 101–2, 104–5, 204n9 British Royal Society, 29–30 Bronowski, Jacob, 29–30 Bronte¨, Emily, 141 Brown, John R., 187 brown-bag lunch series, 67 Buchwald, Art, 104 Buffett, Warren E., 18 Burchfield, R W., 138 bureaucratese, 113–14, 231 Burger, Warren, 160; edited opinion of, 171–75; in United States v Nixon, 169– 71 Burnett, Donald, 188 Caniglia v Caniglia, 204n9 Cappon, Rene J., 86 Cardozo, Benjamin N., 39, 149, 183, 190, 192 Carlin, Frank A., 180–81 Carlyle, Thomas, 56 Carroll, Lewis, 149 Carter, Jimmy, 17 Carver, Raymond, 56, 154 The Chicago Manual of Style, 66, 165 Choper, Jesse H., 102–3 269 27 INDEX Christy, Arthur H., 62–63 chronological leads, 84–85 Churchill, Sir Winston, 93 citations, 66, 99–100 clauses: commas with, 162–63; rearrangement of, 166 cliche´s, 119, 232 closings, in composition stage, 55 colons, 164 Columbia Law School, xi, 15, 16 commas: with appositives, 161; with conjunctions and disjunctions, 162; with dates, 163; with dependent clauses, 162– 63; with nonrestrictive clauses, 162; with opening phrases, 162; with quotation marks, 163; in a series, 162; with states, 163; used as splice, 163 communication: audience component of, 107–9; editing’s goal of, 47–48, 49– 50, 229; hindered by bureaucratese, 113–14; hindered by legalese, 110–12; language as medium of, 34, 202n40; problem solving prior to, 37–39; sentence length’s impact on, 148–52; structural elements of, 108, 109 composing: blocks to, 46, 56–58; individual approaches to, 52–55; length considerations in, 100–101; location for, 68; preliminary steps before, 43– 45; problem solving role of, 38–41; time for, 42, 51; with typewriters, 59– 60; with word processors, 60–61; writing audit questionnaire on, 69–70; by writing versus dictation, 63 compound nouns, 122–23 comprise, 114 Conner, William C., 186 contractions, 164 copy editing staff: in publishing industry, 73–75; salaries of, 73; skills/responsibilities of, 65–66, 75–76; style guides of, 66–67, 164–65 Craft, Randal R., Jr., 54 Cuomo, Mario, 52 Curry, Richard, 181–82 dangling participles, 141, 233 Darwin’s Century (Eiseley), 191 dates, commas with, 163 Davis, Evan A., 52 Dempsey, Vivian, 60–61 dependent clauses, 162–63 Derwinsky, Edward, 113 Dickerson, Darby, 203n1 dictation, 62–63 Dictionary of Modern English Usage (Fowler), 112 doggerel, 183–84 double negatives, 123–24 Douglas, William O., 40, 193 Dryden, John, 30 due to, 115 Easterbrook, Frank R., 184–85 editing: of Burger, in United States v Nixon, 169–75; for clarity, 157–58, 231– 34; communication goal of, 49–50, 107–8, 229; for continuity, 158, 234; by copy desk staff, 66, 75–76; exercises in, 237–48; importance of, 153–55; for length, 156–57, 231; by partners, as inefficient, 64–65, 68, 72–73; in publishing industry, 73–75; of sample passages, 165–69; for structure, 48–49, 155– 56, 229–31; time for, 42, 47–48, 51, 154, 155; with word processors, 61; writing audit questionnaire on, 69– 70 See also proofreading editorial style guides, 66–67, 164–65 education See training in writing Edwards, Mary Frances, 60 Eiseley, Loren, 191 The Elements of Style (Strunk), 8–9 e-mail, 62, 203n10 Emery, Richard, 157 Evans, Thomas W., 8–9 Evslin, Dorothy, 107 fact checking trick, 46 the fact that, 122 Fahringer, Herald Price, 55 Ferraro, Geraldine A., 117 Fidell, Eugene R., 55 Fielding, Henry, 14 final draft See editing first draft See composing INDEX first person pronouns, 136 Flesch, Rudolf, 148–49 Flexner, Stuart Berg, footnotes, 100, 102–3 formatting: effective types of, 98; ineffective types of, 99–100 Fortescue, John, 14 Fowler, H W., 112, 138 Frank, Jerome, 161 Frankel, Marvin E., 72 Frankfurter, Felix, 159, 186, 191 Franklin, Benjamin, 33 Freeman, Donald C., 128, 145–46 Friedman, Lawrence M., 19, 23, 24, 34 fused participles, 138–39 Galbraith, John Kenneth, 48, 155 Garbus, Martin, 55 Garner, Bryan A., 114 Giamatti, A Bartlett, 29 Gillis, J H., 183 Gilmore, Grant, 20 Goldberg, Robert M., 85 “Goodbye to Law Reviews” (Rodell), 15– 16 Gopen, George D., 6–7, 56, 108, 146–47 Gould, Milton S., 99, 177–78, 191 Graham, Fred, 12 Grauman, Lawrence, 28 Green, Eric D., 53 The Gregg Reference Manual, 66 Haig, Alexander M., 123 Hale, Sir Matthew, 14 Hand, Learned, 193 Harlan, John Marshall, 192 Harvard Law School fund-raising letter, 168–69, 178 Hazard, Geoffrey C., Jr., 49 headings, as formatting element, 98 Hemingway, Ernest, 56, 154, 186–87 Holmes, Oliver Wendell, Jr., 24, 47, 190, 192; in United States v Schwimmer, 195–96 Horton, Susan R., 40–41, 56 Howard, V A., 56 Hufstedler, Shirley, 99–100, 103 humor: effective use of, 184–86; self- 271 conscious use of, 182–83; as unintentional, 179–81 Hyland, Richard, 27–28, 33–34 I, use of, 33, 136 indented quotations, 163 introductions, in composition stage, 55 introductory phrases, deletion of, 120–21 inverted pyramid approach, 79–80 it’s and its, 164 Jackson, Robert H., 185–86, 193 Jasen, Matthew, 60 Jefferson, Thomas, 14–15 Johnson, Samuel, 56 Jones, William J., 52 judges, as audience, 85, 178–79 judicial opinions: reason for length of, 26–27, 103; as retraction model, 185– 86; self-conscious humor of, 182–83; unintentional humor of, 179–81; as writing models, 30–31 Kasanof, Robert, 84, 157 Kilpatrick, James J., 111, 175 Kipling, Rudyard, 56 Klein, Alvin F., 3–4 Kline, J Anthony, 55 Koch, Edward I., 14 Kurland, Philip, 111 Lahey, Eddie, 85 The Language of the Law (Mellinkoff), 59 language skills: historical critiques of, 14– 15; law students’ lack of, 13, 15–17; as pedagogical failure, 28–29; public initiatives on, 17–18; reading’s contribution to, 32–33, 190–93; of Royal Society members, 29–30 See also tone; words; writing style Latinisms, 111, 231 Lavery, Urban A., 15 “Law and Literature” (Cardozo), 183 law clerks, and judicial opinions, 26–27, 103 law firms: business pressures on, 25–26; editorial inefficiencies at, 64–65, 71–73; in-house editing staff of, 65–66, 75–76; 27 INDEX law firms (continued) publishing output of, 71; style guides of, 66–67, 164–65; technology’s impact on, ix–x, 60–63; writing audit questionnaire for, 69–70; writing newsletter of, 67; writing training at, 7–8, 67–68 law review articles, 31, 102–3 law schools: doctrinal focus of, 39; writing courses at, x-xi, 7, 17, 30–31 law students, illiteracy of, 13, 15–17, 28–29 lawyers: conceptual focus of, 27–28; economic/business concerns of, 22–23, 25– 26; editing habits of, as partners, 64– 65, 68, 72–73; good writing devalued by, 5–7; journalism tips for, 79, 80, 83, 85, 105; poor writing skills of, 3–4, 12– 17; professional diligence of, 20–21; psychological distancing by, 33, 201n36; reading habits of, 32–33, 191– 92; ritualistic language of, 19–20, 24– 25; training of, at law firms, 7–8, 67– 68; with undisciplined thinking, 33–34 leads: as buried, 81–83; as chronological, 84–85; editing of, 156, 229–30; as empty, 83–84; from Learned Hand, 87; newspapers’ use of, 85–86; purpose of, 79–80 Leff, James J., 55, 103 Leflar, Robert, 31 legalese: criticisms of, 12–16; deterministic view of, 27–28; economic justification of, 22–23; as legally precise, 22; ritualism argument for, 19–20, 24–25; unnecessary use of, 110–12, 112, 231; as vague/verbose, 20–21, 200n13 legal writing: as communication medium, 34, 202n40; criticisms of, 3, 12– 16; editing’s importance to, 153–55; elements of, to consider, 9; final draft of, 47–51; first draft of, 43–47; five categories of topics in, 96; government initiatives on, 17–18; in-house newsletter on, 67; institutional context of, 25–26; inverted pyramid approach to, 79–80; by law clerks, 26– 27, 103; lawyers’ devaluation of, 5–7; as poor, causes of, 18–19; as poor, consequences of, 4; reading’s impact on, 190–93; technology’s impact on, x, 25, 59–63; ten-step process of, 42; training in, x–xi, 7–8, 30–31, 67–68; two key principles of, 41–42; usage focus of, 8– 9; writing audit questionnaire on, 69– 70 See also composing; editing; tone; writing style legal writing courses: imitation practices of, 30–31; at law firms, 7–8; in law schools, x–xi, 7, 17; recommendations for, 67–68 length limitations: on briefs, 104; on case summaries, 105–6; on motions, 104; on petitions for writ of certiorari, 104; reasons to work within, 101–2, 104–5, 204n9; self-imposed, in editing stage, 156–57, 231; on sentences, 148– 52, 158 See also wordiness Levine, David S., 61 Levitt, Arthur, 18 Lewis, Anthony, 193, 195 Lewis, John L., 113 Lipson, Leon S., 188–89 lists: as formatting element, 98; as organizing strategy, 97–98 Llewellyn, Karl N., 13, 15 Lloyd George, David, 59 Logan, M M., 179–80 Los Angeles Times, 74 Lowenstein, Daniel H., 54 Lowry, Malcolm, 56 Lubin, Peter, 24–25 Lutz, William, 18 MacCrate, Robert, x magazine copy editing, 74–75 Mahoney, Patrick D., 104 Majer, Kenneth, 108 Manion, Daniel, 159–60 Marshall, John, 192 Marshall, Thurgood, 190 Marx, Groucho, 60 Matthewson, Mark, 23 Maverick, Maury, 113 Mazlish, Bruce, 29–30 INDEX McGowan, Carl, 16–17, 26, 32 McGurrin, Frank E., 59 McLuhan, Marshall, 202n40 Mellinkoff, David, 25, 59, 110, 161 misplaced modifiers, 141–43, 233 Modern English Usage (Fowler), 138 Mosk, Stanley, 102, 103, 186 Mulligan, William Hughes, 53; in United States v Byrnes, 197–98 Murray, Donald, 57, 58 Neely, Richard, 27, 53 Neumann, Richard K., Jr., 26 The New Industrial State (Galbraith), 48 newsletters on writing, 67 newspapers: copy editing at, 73–74; effective leads from, 85–86 Newsweek, 74 New York Times, 74 The New York Times Manual of Style and Usage, 121, 164–65 New York University Law School, 16 1984 (Orwell), 113 Nolan, Joseph R., 188 nominalizations: examples of, 129–30; reasons to avoid, 128–29; rewriting of, 158, 166–67, 232; useful types of, 131 nonrestrictive clauses, commas with, 162 nonrestrictive dependent clauses, commas with, 162–63 Noonan, John T., Jr., 201n36 nouns: compounding of, 122–23; nominalizing with, 128–30; possessive form of, 164 Nowak, John E., 102 Office of Investor Education and Assistance (U.S Securities and Exchange Commission), 17–18 only, placement of, 142 organization: appropriate strategies of, 97–98; example of brief without, 90– 93; formatting elements of, 98–100; length considerations of, 100–101, 105– 6; principle of, 89; revision of, 155–56; of topic sentences, 93–95; of topics within paragraphs, 95–96 273 Orwell, George, 32, 113, 123 outlines, 41; formal, 45; rough, 44–45; using index cards, 54; writing without, 53–54 padding practice, 14, 15 See also wordiness paired pronouns, 140 paragraphs: editing the structure of, 156, 230–31; same/related topics within, 95– 96; topic sentences of, 93–95; without logical order, 90–93 parallelism, 144, 233–34 participles: dangling, 141, 233; fused, 138– 39 partners: editing habits of, 64–65, 68, 72– 73; lack of consensus among, 65 passive voice: anonymity of, 178; conversion of, to active voice, 166, 232; overuse of, 131–32; when to use, 133– 34 Pennoyer v Neff, 30–31 periods, and quotation marks, 163 petitions for writ of certiorari, length limitations on, 104 phrases: introductory, 120–21; prepositional, 127–28, 232–33; wordiness of, 121–22 Plain English for Lawyers (Wydick), 110 A Plain English Handbook (government publication), 18 pleadings, padding of, 14, 15 Plevan, Kenneth A., 79, 80 plural nouns, possessive form of, 164 “Politics and the English Language” (Orwell), 32, 113 Posner, Richard A., 155, 176 possessive nouns, 164 Powell, Sally, 10 prepositional phrases, strings of, 127, 232– 33 prepositions, terminal, 127–28 Prescott, William H., 89 principal briefs, length limitations on, 104 problem solving: as communication prerequisite, 37–38; composing as, 38–41; 27 INDEX problem solving (continued) organizing strategies of, 97–98; six step process of, 42–45 See also composing professionalism: cultish component of, 19–20; to justify verbosity, 20, 21, 102 pronouns: first person, 136; gender mismatch of, 139–40; obscure antecedent of, 136–37, 234; personal possessive form of, 164 proofreading, 235; for consistency in style, 164–65; copy editing versus, 66, 73; by in-house proofreaders, 65–66, 68; lawyers’ devaluation of, 65; of printed document, 50; for punctuation errors, 160–64; for spelling and typographical errors, 159–60 Prosser, William L., 16, 71 punctuation errors: with apostrophes, 164; with colons, 164; with commas, 161–63; effects of, on meaning, 160–61; with quotation marks, 163 quotation marks, 163 quotations: indented, 163; misuse of, 99 Random House Dictionary of the English Language, 140 readers See audience reading habits: effects of, on writing, 190– 93; of lawyers, 32–33 redundancies: elimination of, 166, 167, 169; examples of, 124–25 Rehnquist, William H., 111 reply briefs, length limitations on, 104 research: problem solving role of, 43–44; time for, 50–51; unblocking function of, 46, 58 restrictive dependent clauses, 162 ritualism: comfort in, 24–25; professional function of, 19–20 Rochman, Irwin, 189–90 Rodell, Fred, 15–16, 23, 31, 55, 100 Rogers, Will, 28 Romano, Salvatore A., 100 Rombauer, Marjorie, 83 Roth, Philip, 154 Rowe, Thomas D., Jr., 53 Rubin, Zick, 53 run-on sentences, 148 Safire, William, 121 Sandburg, Carl, 27 Schiller, Johann, 56 scientific writing, 29–30 Seligman, Daniel, 160 sentences: with dangling participles, 141, 233; emphasis within, 144–45; length of, 148–52, 158; with misplaced modifiers and clauses, 141–43, 233; parallelism in, 144, 233–34; proximity of elements in, 143–44; run-on, 148; topic’s placement in, 145–47; transitions between, 147–48, 230–31 See also topic sentences serial comma, 162 sexist words, 121 Shapiro, David L., 11 Shellenberger, Fran, 61 Sherwin, Richard K., 34 Siegal & Gale (New York firm), 24 Sierra Club v Morton, 40 Simpson, Louis, 61 slang words, 120 Smith, George Rose, 183, 220 spell-checking programs, 160 spelling errors, 159–60, 235 Spender, Stephen, 56 split infinitives, 135, 234 Stanley, Justin A., 54–55 Stark, Steven, 22–23, 27 Stassen, John H., 54 states, commas used with, 163 Stern, Carl, 40 Stern, Gerald, 53–54 Stevens, Wallace, 160 Story, Joseph, 197 string citations, 99–100 Strunk, William, 8, style See writing style Style: Ten Lessons in Clarity and Grace (Williams), 21, 144–45 style guides, 66–67, 164–65 subheadings, as formatting element, 98 INDEX subject of the sentence: topic’s placement as, 145–47; verb’s agreement with, 134–35, 233 The Supreme Court: How It Was, How It Is (Rehnquist), 111 Swift, Jonathan, 14, 192 Task Force on Law Schools and the Profession, x technology: changes in, ix–x; of e-mail, 62; and proofreading complacency, 50; of spell-checking, 160; and verbosity, 25, 59–60; of voice-recognition software, 62–63; of word count, 104n; of word processing, 60–62 Tenner, Edward, 113 terminal prepositions, 127–28 The Texas Law Review Manual on Style, 165 that and which, 137–38, 233 theory of the case: determination of, 43; reassessment of, 45 there is, overuse of, 134, 232 Thinking through Writing (Horton), 56 Thomas, Evan, 178 Thoreau, Henry David, 119 Time, 74 TK (“to come”), 46 Tobriner, Matthew, 93–95 tone: appropriate choice of, 186; as selfconsciously humorous, 182–83; as snide versus respectful, 178–79; as stuffy, 178; as unintentionally silly, 179– 81; as wittily amusing, 184–86 See also writing style topics: disorganized structure of, 89–93; editing the structure of, 156; five categories of, 96; within paragraphs, 95– 96, 230; specific versus related, 89; as subject of the sentence, 145–47 topic sentences: from Balabanian’s eulogy of Tobriner, 94–95; placement of, 95, 230; purpose of, 93 Topkis, Jay, 52, 83 Townsend, R Edward, Jr., 53 Trager, David G., 25, 53 training in writing: as disciplinary field, 275 17; at law firms, 7–8, 67–68; at law schools, x–xi, 7, 30–31; as pedagogical failure, 28–29 Tribe, Laurence H., 81–82 Turow, Scott F., 178 Twain, Mark, 59 typewriters, 25, 59–60 U.S Supreme Court, length limitations set by, 104 The United States Government Printing Office Style Manual, 164 United States v Byrnes, 197–98 United States v Nixon: edited version of, 171–75; excerpt from, 169–71 University of Chicago Law School, 30 University of Minnesota Law School, 16 usage problems: examples of, 114–16; focus on, 8–9; Usage Notes on, 209–28 See also words Uviller, H Richard, xi Vanderbilt, Arthur T., 16, 17, 32 verbosity See wordiness verbs: importance of, 128; infinitive form of, 135, 234; nominalization of, 128–31; parallelism of, 144, 233–34; subject’s agreement with, 134–35, 233; use of colon after, 164 See also participles Virginia Supreme Court, 104 vocabulary See words voice-recognition software, 62–63 Wachtler, Sol, 103 Wald, Patricia M., 27, 131–32, 136 Wall Street Journal, 74, 80 Warren, Earl, 193 Warren, Edward H., 63 Warren, William, 16 Washington Post, 74 Weber, Gerald J., 184 Webster, Daniel, 190 Weisberg, Richard H., 140 Wermiel, Stephen, 75, 187 When Lawyers Write (Weisberg), 140 where, misuse of, 114–15 which and that, 137–38, 233 27 INDEX White, E B., White, Edward Douglass, 116 Whitney v California, 193–95 Wiener, Norbert, 21 Williams, Joseph M., 21, 108, 144–45 wit See humor The Wonderful Writing Machine (Bliven), 203n10 word count, 104n wordiness: court’s limitations on, 104–5, 204n9; of double negatives, 123–24; editing of, 156–58, 231; examples of, 125–27; of fuzzy phrases, 121–22; of judicial opinions, 26–27, 103; of law review articles, 31, 102–3; of noun compounding, 122–23; of padding practice, 14, 15; of prepositional phrases, 127; professionalism’s defense of, 20, 21, 102; reasons to control, 101– 2; of redundancies, 124–25; of sentences, 148–52; technology’s contribution to, 25, 59–60 word processing: in legal field, ix, 61– 62; recycling effects of, 60–61; spellchecking function of, 160; word count function of, 104n words: avoidable types of, 110–14; as cliche´s, 119, 232; as double negatives, 123– 24; mistaken meanings of, 107, 109–10; noun compounding of, 122–23; obviousness of, 118–19; of overcaution or exaggeration, 116–18; as redundancies, 124–25; sexist, 121; slang, 120; Usage Notes on, 209–28; usage of, with examples, 114–16 See also wordiness Words into Type, 66 Wright, Bruce, 181 The Writer’s Art (Kilpatrick), 175 writer’s blocks: causes of, 56–57; methods for overcoming, 57–58; two kinds of, 46 writing audit: analysis prior to, 64–65; recommendations based on, 65–69; suggested questionnaire for, 69–70 writing style: of Brandeis, in Whitney v California, 193–95; as conceptual, 27– 28; of Douglas versus Blackmun, 40; as fraternal/ritualistic, 19–20, 24–25; of Holmes, in United States v Schwimmer, 195–96; legal models of, 30–31, 102–3; with memorable effects, 176–77, 189–90, 192–93; of Mulligan, in United States v Byrnes, 197–98; as ornate/ostentatious, 177–78; as spare/ simple, 186–89; technique versus, 176– 77; as vague, 20; as verbose, 20, 21, 125–27 See also tone Wuthering Heights (Bronte¨), 141 Wydick, Richard C., 110, 231 Yale Alumni Magazine, 28 Yale Law School, 16 Young, William G., 61 Zinsser, William K., 61 Zola, Emile, 56 Designer: Compositor: Text: Display: Printer and binder: Sandy Drooker Binghamton Valley Composition, LLC 11/15 Adobe Garamond Copperplate Maple-Vail Manufacturing Group