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The Legal Writer: Two easy fixes

This column will suggest two easy ways to immediately improve your writing. [Note that this is a split infinitive – would it be better to write immediately to improve? Of course not.]

First, do not be afraid to start sentences with and or but. This signifies good writing. The reason your grammar-school teacher told you not to start a sentence with and was because you wrote, I have a mother. And a father. And a dog. The last two weren’t sentences.

But unfortunately, the teacher didn’t later disabuse you of the “rule.” It has never been a rule, and never been in any grammar book. There are many of these false rules, which Bryan Garner, in Garner’s Modern American Usage – a book you must have – calls “superstitions.”

Use but rather than however to start a sentence, and see how much better it reads. When you start with however, it takes a comma – why make the reader pause before you’ve said anything? And however has two senses – the meaning. Any time the reader backs up, you have lost your flow. So if you mean but, write it.

Almost any example of good writing pulled at random will contain numerous examples. The Wall Street Journal and The New York Times are well-written – look at the front page of either and circle the number of sentences beginning with and or but. And the examples provided below should convince any skeptic.

Pick up any work by a good writer, and you will find countless examples.

Too many dates

Lawyers and judges use too many dates. Using an exact date signals to the reader that it is important – that the reader should remember it for future reference. If that’s not your intention, strike it out. Of course, if you have a case turning on what date something happened, put the date in. But most dates are clutter and make our writing very difficult to read.

You can convey continuity and order by using clues like next and later. Or use in June then in July to show chronological order. The example below should help.

My rule is that if you use an exact date, you must have a good reason.

A few tips for dates: When using month-day-year style, there is a comma before and after the year – the ceremony of June 26, 2003, was festive. In the day-month-year style (more prevalent in Commonwealth and European writing), there is no comma – the ceremony of 26 June 2003 was festive. And remember that when an exact date is not used, there is no comma between the month and year: in June 2003.

To refer to decades, do not use an apostrophe – during the 1980s not 1980’s. Actually, either is acceptable; but the modern rule, which produces cleaner-looking text, is to leave out the apostrophe.

Readability

I always show the readability levels for the column. They are 14 words per sentence, 0 percent passive voice, and grade level 6.8.

Mark Painter has served as a judge on the Ohio First District Court of Appeals for 14 years, after 13 years on the Hamilton County Municipal Court. In March 2009 he was elected by the United Nations General Assembly to serve on the United Nations Appeals Tribunal. He will assume that judgeship in July. Judge Painter is the author 6 books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://books.lawyersweekly.com. Judge Painter has given more than 100 seminars on legal writing. Contact him through his website, www.judgepainter.org.



Examples of And and But

Holmes: Courts proceed step by step. And we now have to consider whether the cautious statement in the former case marked the limit of the law . . .

But to many people the superfluous is necessary, and it seems to me that Government does not go beyond its sphere in attempting to make life livable for them.

Jackson: But we think the previous cases indicate clearly that respondents are within the Act.
And the government tells the Court that not even a court can find out why the girl is excluded. But it says we must find that Congress authorized this treatment of war brides and, even if we cannot get any reason for it, we must say it is legal; security requires it.

Pound: Hence it is an unjustifiable interference with a natural right. And this is exactly what the court said in an actual case.

Shakespeare: But I am very sorry, good Horatio

That to Laertes I forgot myself;

For, by the image of my cause, I see

The portraiture of his: I’ll court his favours.

But, sure, the bravery of his grief did put me

Into a towering passion.

Thou hadst, and more, Miranda. But how is it

That this lives in thy mind? What seest thou else

In the dark backward and abysm of time?

Tom Wolfe: He had grown up associating religion with the self-delusion and aimlessness of adults. But now he thought about the soul, his soul. Or he tried to. But it was only a word!

William Faulkner: But it was not for him, not yet. The humility was there; he had learned that. And he could learn patience.

Isaac Asimov: But it would be silly to wear clothes in the rain. You didn’t wear clothes in the shower. If it rained, you would take off your clothes. That would be the only thing that made sense.

Lincoln: But in a larger sense, we cannot dedicate-we cannot consecrate-we cannot hallow-this ground.



Dates

On February 13, 2005, Plaintiff-Appellant filed suit against the apartment owner, alleging negligence in failing to maintain the premises. On March 6, 2005, Plaintiff-Appellant visited Dr. Eugene Higginbotham, an orthopedic surgeon, who confirmed the diagnosis but concluded that surgery was not indicated, given Plaintiff-Appellant’s uncontrolled diabetes and her obesity. On the following dates, Plaintiff-Appellant visited a physical therapist for her back condition: March 12, 2005, April 15, 2005, June 6, 2005, August 2, 2005, October 5, 2005, and November 16, 2005. On December 10, 2005, a month after her last therapy session, the apartment owner settled the case for an undisclosed sum.

102 Words, Grade level 20

A few days later, Walker sued the apartment owner. She claimed that he negligently failed to maintain the property. She then visited Dr. Eugene Higginbotham, an orthopedic surgeon, who confirmed the diagnosis. But he but concluded that surgery was not indicated, given her uncontrolled diabetes and obesity. During the next nine months, Ms. Walker visited a physical therapist six times for her back condition. In December 2005, a month after her last therapy session, the apartment owner settled the case for an undisclosed sum.

84 Words, Grade level 11

In this example I’ve also fixed other problems: using the name (Walker) rather than procedural title (Plaintiff-Appellant); cutting the nominalization (filed suit) and using the verb (sued); using a normal word (property) for the legalism (premises); cutting average sentence length (25 to 14).