When will you have finished trying to improve your writing? That simply depends on how good a writer you want to be. If you aspire to be a top-notch writer, you’ll never be finished.
At first, all writers resist criticism. You probably tend to equate your writing with your intellect. You might instinctively believe that if someone criticizes your writing, it’s an assault on the way your mind works. But if you don’t learn to overcome this defensive instinct—if you insulate yourself from criticism—you’ll find it difficult to improve.
What every writer needs to go through, at some point, is a series of good edits—not just edits, and not just heavy edits, but good edits. This means you’ll need an experienced editor. In time, the edits will get lighter. But you’ll never outgrow the need for a good editor. No writer ever does. Writing is a humbling affair.
You’ll even find, with time, that you can get valuable comments from people who aren’t professional editors. They might find a particular sentence awkward or a particular word jarring. You should listen to what they say. Don’t simply discount their comments as uninformed blather.
Increasingly, writing pros are actually paying for nonprofessional advice. Testing legal documents on ordinary readers, just to see what might be going wrong, is a relatively recent practice that can dramatically improve quality. In the old days, if nonlawyers couldn’t follow legal writing, many lawyers might have arrogantly claimed that the cause was the readers’ sheer ignorance. Now, the more enlightened view is that misreadings more likely show the writer’s sheer ineptitude.
It’s possible to test the readability of all sorts of documents, from car warranties to apartment leases to court rules. It’s even possible to test the persuasiveness of appellate briefs.1
But you must be willing to subject your writing to independent, objective scrutiny. The more secure you are as a writer, the more you’ll seek out this scrutiny. It won’t come naturally. You’ll have to learn for yourself the value of seeking out criticism—and then heeding it.
Basic
Find a book chapter, a law-review note, or an article in need of a good edit. Retype a substantial section—at least one full page (but omit substantive footnotes)—in triple-spaced format. Then edit it by hand. If you’re part of a writing group or class, circulate a copy of the marked-up version to each colleague.
Intermediate
Agree with a colleague that the two of you will do some mutual editing. Each of you will then write a three-paragraph persuasive essay. (Don’t forget § 30.) Exchange the essays, edit them within a specified period, and then meet to discuss your edits. Each of you should agree to (1) listen open-mindedly to the other’s edits and (2) refrain from making unduly negative remarks on your colleague’s essay. Each of you should use your colleague’s edits to revise the original.
Advanced
If you’re part of a writing group or class, write a five-page essay defending a controversial legal position. Polish it. Make three copies (keep the original for yourself) and bring them to the meeting. The leader or instructor will divide the class into groups of three for purposes of exchanging papers. You’ll then edit the essays from the other two people in your group, and they will edit yours. Try not to edit lightly. Write a note at the end of each paper you edit, noting both strengths and weaknesses; cover both style and content. (Say something positive if you can—and you always can.) When you return the following week, you’ll have two sets of edits—possibly even three, if the leader or instructor has also edited your essay. Use the best edits (at least half) to revise the essay.
Imagine taking a golf lesson and having the instructor tell you to try a few things on your next swing: (1) keep your feet at shoulder width; (2) align the ball off your left heel; (3) bend your knees slightly; (4) start with your hands in front of the ball; (5) loosen your grip; (6) take the clubhead back low to the ground; (7) keep your left arm straight on the backswing; (8) keep your left heel on the ground throughout; (9) roll your right hand to the left at impact; (10) shift your weight from the right foot to the left just before impact; (11) clip the grass under the ball; (12) try not to move your head till the ball is struck. Finally, the instructor tells you, concentrate on hitting the ball smoothly instead of hard. Got that?
Professional golfers do most of those things naturally. For the pros, they’re easy. Yet even the pros continue to need lessons because the fundamentals are easy to overlook. The golf swing is complex.
So is editing. It’s at least as hard to explain what a good editor does when holding a pen as it is to explain what a good golfer does when holding a two-iron. Some years ago, I spent several days with John Trimble of the University of Texas—the author of the justly famous textbook Writing with Style (3d ed. 2011)—trying to identify precisely what a good editor does. Our goal was to devise an editorial protocol that almost anyone could carry out, step by step.
We found that, as editors, we work similarly. We both begin by clearing out the underbrush—sentence by sentence. We clean up the little, easily fix-able problems. Then we go through the piece a second time, making more ambitious edits. This time, we concentrate especially on tightening slack wordings. Then we go through the piece again to rethink structure, transitions, and the ideas themselves. By now we’re pretty familiar with the whole of what we’re editing.
Having developed our protocol for LawProse seminars, we call it the Law-Prose Editing Method. Here it is:
Level One: Basic Edits
1. Cut or reword pointless legalisms (§ 12).
2. Convert be-verbs (is, are, was, were, be, been) into stronger verbs (§ 13).
3. Convert passive voice into active unless there’s a good reason not to (§ 9).
4. Change -ion words into verbs when you can (§ 15).
5. Check every of to see whether it’s propping up a wordy construction (§ 14). If so, rephrase.
6. Check for misused words (§ 48), faulty punctuation (appendix A), and other mechanical problems.
7. Try to cut each sentence by at least 25% (§ 5).
8. Read aloud, accenting the final word or phrase in each sentence (§ 11). Does it read naturally?
Ask yourself:
1. Does the central point emerge clearly and quickly (§ 22)?
2. Is there a strong counterargument that you haven’t adequately addressed (§ 30)?
3. Can you spot a bridge at the outset of each paragraph (§ 25)?
4. For each block quotation, have you supplied an informative lead-in (§ 29)?
5. Can you dramatize your points better? Can you phrase them more memorably? Where you’ve enumerated points, should you set them off with bullets instead (§ 43)?
6. Have you found a way to subordinate citations so that they don’t mar the page (and your analysis) (§ 28)?
7. Have you used real names for parties (unless there’s a compelling reason not to) (§ 17)?
8. Have you achieved the right tone (§ 20)?
Because this method involves so many steps, it is artificial and laborious. But it’s an excellent tool for self-teaching. It will almost certainly prompt you to carry out some edits that you’d otherwise overlook. And when you carry them out, they become yours. You start a good habit. You add to your repertoire as an editor.
Exercises
Basic
Take a short legal memo (2–5 pages) that you or someone else has written, and work through the LawProse Editing Method. First, if needed, type it word for word into the computer. Then work through the edits step by step. Create a new draft after each stage. If you’re part of a writing group or class, make a copy of your before-and-after versions to each colleague.
Intermediate
In a real-estate formbook, find a short lease or other contract to which you can apply the LawProse Editing Method. First, type it word for word into the computer. Then work through the edits step by step. Create a new draft after each stage. If you’re part of a writing group or class, make a copy of your before-and-after versions to each colleague.
Take a substantial document that you’ve written—such as a term paper or law-review note—and work through the LawProse Editing Method. Be systematic: carry out only one type of edit at a time. If you’re part of a writing group or class, be prepared to discuss what this experience was like for you—and what (if anything) you learned about editing.
Every practicing lawyer is, by the very nature of the job, a professional writer. Let’s think for a moment about these two things: being a lawyer and being a professional writer.
What makes a lawyer a lawyer? The answer certainly isn’t that the lawyer knows all the law in a given jurisdiction. That’s impossible. What makes a lawyer a lawyer is knowing, when a legal question arises, how to find the answer—if there is one. Lawyers don’t purport to give off-the-cuff answers without hitting the books. Anyone who does that probably won’t remain a lawyer very long.
But if lawyers know about hitting the books on legal questions, what happens when a language question arises? Somebody asks whether it’s acceptable (or even desirable) to start a sentence with And or But, whether it’s wrong to end a sentence with a preposition, or some other grammatical or stylistic question. Where should the adverb go in relation to a verb phrase—inside or outside? Is splitting an infinitive always forbidden? Does data take a singular or a plural verb? What’s the preferred plural of forum? Unfortunately, many lawyers aren’t so fastidious about finding answers to these questions. They’re likely to feel satisfied with a seat-of-the-pants approach. Yet even educated guesses about what the experts say are likely to be wrong.
That’s why lawyers, of all people, need to know how to find the answers to questions of grammar and usage. Although most journalists generally know where to look, most lawyers are at a loss. Many might look in a book titled English Grammar, but most books bearing that title don’t answer the questions. Others would look at a primer such as Strunk and White’s Elements of Style (a superb weekend read), and still others would turn to the AP Stylebook or some other style manual. But on the finer points of grammar and usage, they’d come up empty.
The vast majority, though, wouldn’t even crack a book: they’d give off-the-cuff answers based on half-remembered lessons from middle school. If they did this with legal questions, it would be prima facie legal malpractice. In writing, it’s literary malpractice.
To avoid it, you’ll need to own some dictionaries of usage. Very simply, these are guides to grammar, usage, and style arranged in alphabetical order—according to well-known terms of grammar and usage. So if you want to know whether you can justifiably begin a sentence with And, look under that word; with But, look there; on split infinitives, see “split infinitives”; on the placement of adverbs, see “adverbs”; on ending sentences with prepositions, see “prepositions.”
If you’re at all serious about writing, you’ll need to own some usage guides. They’ll arm you with knowledge when language questions arise.
Now before I tell you about various dictionaries of usage, a disclaimer is in order: I’ve written two of them. That’s not really surprising, given that the dictionary of usage has long been my favorite literary genre. I’m not saying that you should go out and buy my books: you can have a good usage library without them. Have a look at what’s available and judge for yourself.
Although hundreds of usage guides have appeared over the years, the following five are among the most helpful. They appear in chronological order:
• H. W. Fowler, A Dictionary of Modern English Usage (Ernest Gowers ed., 2d ed. 1965). More than anybody else, Fowler perfected the modern dictionary of usage. The first edition appeared in 1926. Although he was largely unconcerned with American English—and had a peculiarly British style—he still has many useful things to say to modern writers. Among the classic entries are “battered ornaments,” “inversion,” “polysyllabic humour,” and “superstitions.” The last of these is about the commonplace but false notions of what it means to write well.
• Theodore M. Bernstein, The Careful Writer (1965). For many years, Bernstein was an editor at the New York Times, and this book represents the culmination of his wisdom on writing and editing. With a light, wry touch, Bernstein provides guidance on such issues as “absolute constructions,” “one idea to a sentence,” “puns,” and “rhetorical figures and faults.” His introduction, entitled “Careful—and Correct,” should be required reading.
• Wilson Follett, Modern American Usage: A Guide (Erik Wensberg ed., 2d ed. 1998). The book is a quite conservative guide to good usage. It has excellent essays on why good grammar matters, on journalese, and on the sound of prose. Follett was the first usage critic to take issue with the modern use of hopefully (to mean “I hope”). Originally published in 1966, this book was nicely updated in 1998.
• Bryan A. Garner, Garner’s Modern American Usage (3d ed. 2009). This up-to-date usage guide quotes thousands of recent examples from newspapers, magazines, and books—with full citations. The most frequently cited grammatical bunglers are writers for the New York Times. Although the book treats the traditional usage problems and has, for example, a full discussion of how every punctuation mark is used, it contains hundreds of entries on word-choice problems that older books omit.
• Bryan A. Garner, Garner’s Dictionary of Legal Usage (3d ed. 2011). This was the first dictionary of usage targeting legal writers. It discusses hundreds of usage problems that arise in law but not elsewhere. Among the entries worth consulting are “doublets, triplets, and synonym-strings,” “indemnify,” “plain language,” “sexism,” and “words of authority.” There’s even an entry called “lawyers, derogatory names for.”
Whichever books you choose, keep them close at hand. Consult them. You’ll come to appreciate their guidance.
No single usage guide has the final word. You’ll learn to judge for yourself the value of one writer’s guidance as compared to another’s. And as you browse through them (that’s inevitable), you’ll learn all sorts of things that you never dreamed (or is it dreamt?) of.
If you want to improve your command of grammar and usage, browsing through dictionaries of usage is probably the easiest way—and the most enjoyable. You don’t have to study the subject systematically. Just read a little bit each day, for a few minutes a day. Try a usage guide as idle-time reading for a few weeks, and you’ll be on your way. That’s the way it has worked for many excellent writers and editors. You could join their ranks. As for the question whether Internet search engines might serve just as well to answer usage questions, the answer is that they’ll locate highly unreliable as well as reliable sources. Use them if you like—but warily. And meanwhile, become familiar with some authoritative paper sources.
Exercises
Basic
Correct the usage errors in the following sentences. Cite a usage guide that deals with the error in each sentence.
• When Margot arrived, Rodney told her that David had laid down because of his pain.
• Mrs. Clements testified that Kenneth was waiving the gun wildly and pointing it at Bill.
• Counsel testified that because the testimony would have harmed her case, she opted to forego it for reasons of trial strategy.
• Since the Oneida line of cases are now binding federal law in California, this Court is bound to follow them.
• The cost of any arbitration proceedings will be born by the party designated by the arbitrators.
• The gas would likely be inventory under the Idaho statutes defining the term, but these provisions might not apply since they do not effect Idaho taxable income.
• Texas law prohibits the unjustified interference with a parties’ existing or prospective contractual relations.
• For the reasons stated in Jones’s initial motion, Jones maintains that the Court’s August 27 order precludes Fillmore from preceding on count six in this action.
• The laws of the State of Massachusetts (irrespective of its choice-of-law principals) govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the parties’ rights and duties.
• Neither Mr. Robinson’s affidavit nor Plaintiffs’ deposition testimony carry the force of law.
Intermediate
Take two of the usage guides recommended here and find two others not mentioned. Be prepared to report on each guide’s answers to the following questions:
1. Is it ever permissible to split an infinitive? If so, when?
2. Where should an adverb go in relation to a verb phrase? That is, not an infinitive but a verb phrase.
3. Is it grammatically correct to begin a sentence with And?
4. Which is correct: self-deprecating or self-depreciating?
5. What is elegant variation? Is it good or bad?
6. What is a fused participle? Is it ever acceptable to use one?
7. What is the difference between historic and historical?
8. What is the difference between farther and further?
Advanced
Prepare a bibliography of ten usage guides, including at least three of the ones listed in this section. Write a one-paragraph comment on each book’s strengths and weaknesses.
Most of us seem to have two sides of the brain that don’t communicate with each other: the writerly side and the readerly side. The writerly side is stuffed with rules. Do this; don’t do that. The readerly side generally isn’t rule bound; it simply reacts positively or negatively to writing, often at a subconscious or semiconscious level. Over time, you can dramatically improve your writing by learning to monitor your readerly side: what do you like and dislike as a reader, and why?
Start with a clear head—not with all the rules that you’ve heard over the years. Then use your critical sense. If you respond favorably to an argument, ask yourself: “What did I like about the way the argument was presented?” If you respond unfavorably, ask yourself what you disliked about the presentation.
Every writer has a lot to learn from this process. If your instincts are sound—and they probably are—you can infer principles from these likes and dislikes. These principles will very likely be more reliable than the “rules” you remember from middle school.
For several years in judicial-writing seminars, I’ve asked judges to record their readerly likes and dislikes. I ask them to put aside what they think as writers and merely to record what they do and don’t like about the legal material they read. Over time, the answers have been strikingly consistent. And because these answers are worth pondering, consider the list compiled from just one of these seminars, with almost every judge in the state of Delaware participating (see page 170). Notice that almost every quality mentioned in the left-hand column speeds up the delivery of information; almost every quality in the right-hand column, in one way or another, slows down the delivery.
Likes |
Dislikes |
Brevity |
Verbosity |
Clarity |
Obscurity |
Logical flow |
Clutter |
Clear issues |
Failure to frame the question |
Interesting writing |
Long paragraphs |
Fluidity |
Repetition |
Informative headings |
Too many footnotes |
Clean overall appearance |
Run-on sentences |
Structured paragraphs |
Disorganized style |
Directness |
Unnecessary material |
Issue and answer in first paragraph |
Unclear intentions |
Practical writing |
Boring writing |
Trustworthiness |
Latin terms; technical language |
Succinctness |
String citations |
Poor grammar |
|
Clear divisions of thought |
Overstatement; hyperbole |
Explanations |
Passive voice: who did what? |
Accuracy |
Long decisions |
Honest, sincere writing |
Boilerplate |
Supporting rationale |
Complicated writing |
No footnotes |
Long-winded philosophical discourse |
Decisiveness |
Stream-of-consciousness |
Originality in presenting ideas |
Quotations |
Concise sentences |
Incompleteness |
Clear, concise statement of facts |
Witness-by-witness statement of facts |
Outline style |
Cases cited for the wrong proposition |
Short words |
Footnotes, especially giant ones |
Clear conclusions |
Long words |
Conveying a sense of justice |
Circuitous sentences |
Instant clarity |
Lengthiness |
Storytelling |
Lack of closure |
Short, to-the-point style |
Convoluted writing |
Simple sentences |
Spelling mistakes |
Clever phrases |
Disjointed ideas |
Well-put phrases |
Cuteness; unprofessional manner |
Inspiring confidence about precise |
Unnecessary detail |
questions presented |
Dancing around the issue |
Understandable language |
Uninformative writing |
Common sense |
Overuse of procedural labels |
Immediate identification of issues |
Writing you have to reread |
Logical organization |
Impossibly small type |
Entertainment |
Chattiness |
Footnotes for string citations |
Distortions of fact or law |
Comprehensiveness |
Overcontentiousness |
Complex ideas stated simply and directly |
Sentences broken up by citations |
Footnotes properly and sparingly used |
Lazy writing |
Civil tone |
“Clearly” |
Note: This survey was part of an Advanced Judicial Writing workshop for the Delaware judiciary. Forty-two judges participated. The workshop took place in Rehoboth Beach in September 1996. The survey has been replicated at judicial seminars in more than 20 states, always with similar results.
Basic
Interview two law professors who don’t teach legal writing. Ask about their likes and dislikes in their on-the-job reading. Ask them to put aside what they do in their own writing and to focus exclusively on their readerly likes and dislikes. Prepare a composite similar to the one listed in this section. If you’re part of a writing group or class, circulate a copy to each colleague.
Intermediate
Interview three practicing lawyers who have been members of the bar for at least ten years. Ask about their likes and dislikes in their on-the-job reading. Ask them to put aside what they do in their own writing and to focus exclusively on their readerly likes and dislikes. Prepare a composite similar to the one listed in this section. If you’re part of a writing group or class, circulate a copy to each colleague.
Advanced
Do both the basic and intermediate exercises. Then write a short essay (1,000–1,500 words) reporting your findings.
Psychologically, the main quality that distinguishes good writers from bad ones is this: good ones have cultivated an abiding empathy for their readers, while bad ones haven’t. Good writers would no more write an opening sentence like the following one (from a memo) than they would shove people through a supermarket line:
In an action pursuant to CPLR § 3213 upon a defaulted promissory note and guaranties, may the defaulting borrower’s defense that the lender failed to fund interest due under the note from unrelated interest reserves pertaining to two other separate and distinct loans, each being evidenced by separate and distinct notes and guaranties, act as a bar to summary judgment?
It isn’t decent. Often, too, this type of obscurity is a cover-up: the writer isn’t sure what the case is really about.
Achieving simplicity—without oversimplifying—involves a paradox. Writers fear simplicity because they don’t want to be considered simple-minded. In fact, though, there’s no better way to strike your reader as an intelligent, sensible writer than to simplify. Psychologically, in other words, there’s a gulf between writerly fears and readerly wants. You’ll need to bridge it.
Exercises
Basic
Find a published judicial opinion that, in its opening paragraph, makes you feel stupid. Analyze why this is so. If you’re part of a writing group or class, circulate a copy to each colleague and be prepared to discuss your example.
Intermediate
Find a published judicial opinion that, in its opening paragraph, makes you feel smart. Analyze why this is so. If you’re part of a writing group or class, circulate a copy to each colleague and be prepared to discuss your example.
Advanced
Find a brief that, in its first few pages, makes you feel stupid. Rewrite the opener so that it would be immediately comprehensible to a generalist reader. If you’re part of a writing group or class, circulate a copy of your before-and-after versions to each colleague.