As my appellate colleague John O’Herron aptly described last year: “Judges are Busy. Write Like It.” Judges, and especially trial judges, have over-scheduled dockets and, as a result, may read briefs for a case the day before, or even morning of, a hearing. An advocate’s ability to write clearly and concisely is thus critical.
To this end, one of John’s tips in that article was to “declutter” your sentences with needless words. Said otherwise, attorneys need to Marie-Kondo their writing. Except, instead of taking out words that don’t bring you joy (which may end up encompassing the entire brief), focus on condensing phrases and removing words that add little to no value to the sentence. Here are five legal writing tips to do just that:
1. Reduce Explanatory Parentheticals.
Attorneys often over-utilize the “explanatory parenthetical” at the end of a citation, which looks something like this:
Under binding precedent, this Court must find that Plaintiff Turkey had a reasonable
purpose to cross the road. See Chicken v. Bad Joke, 35 K.F.C. 56, 78 (4th Cir. 1997)
(finding on summary judgment that it is reasonable for pedestrians to cross the road
to get to the other side).
The problem with explanatory parentheticals is two-fold. First, it is visually more difficult to look at; more punctuation leads to more clutter, especially when paragraphs have multiple explanatory parentheticals. Second, a parenthetical de-emphasizes its content’s importance. In the example above, there’s a key concept that only exists in the parenthetical—that “getting to the other side” is a reasonable purpose for crossing the road. The Honorable Biz E. Judge may miss this concept entirely because it lies in parentheses, not the body of the text.
The rule of thumb: if the content in the parenthetical is important enough to include, put it in the body of the text.
2. Reduce Multi-Verb Phrases.
Generally, any sentence that has two verbs close together can be condensed to have just one. For instance:
chose to follow followed its plain language interpretation.
was able to walk walked to her car that morning.
While this may seem like a tedious exercise, applying edits like this (usually at the end of the editing process) will give your writing that extra “punch.”
3. Reduce Prepositional Phrases.
Another red flag of cluttered legal writing is multiple prepositions in the same sentence. An exaggerated example:
The Complaint filed by Plaintiff asserted claims of violations of the Due
Process Clause of the Constitution for conduct committed by the Defendant.
The underlined prepositions make this sentence taxing to read. The modifier of each noun comes after the noun it modifies. For example, the reader has to backtrack from “Due Process” to know that it refers to “violations.”
By adding possessive apostrophes and re-arranging the modifiers to come first, you can revise to a cleaner sentence:
Plaintiff’s Complaint asserted constitutional Due Process Clause violations
for Defendant’s conduct.
4. Reduce Unnecessary Words Entirely.
This is a catch-all tip, but often the most direct path to decluttering sentences is to simply delete a superfluous phrase entirely.
Applying Webster’s definition,
it becomes clear that a hotdog is a sandwich.
The government must follow
the parameters of the Due Process Clause.
The above underlined phrases may add some color to your writing, but they do so at the expense of confusing sentences, reducing the chance your reader will understand its meaning. Deleting these kinds of phrases makes it a cleaner read, and often more persuasive.
5. Reduce Passive Voice.
There is a time and place for passive voice, but it can also complicate your writing when overused. Consider this example:
After the motion was argued, the case was dismissed by the court.
Like multi-verb phrases discussed above, passive voice introduces another verb—a “to be” verb—that isn’t necessary to convey the sentence’s meaning. Passive voice also often hides the actor (who argued the motion?), which may further confuse our over-scheduled Biz E. Judge.
The remedy is to rewrite into active voice by putting the actor at the front of the sentence and deleting the “to be” verb:
After Plaintiff argued the motion, the court dismissed the case.
This rewrite lacks the “was” or other “to be” verbs that are speed bumps to reader comprehension.
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These above tips, when employed consistently throughout a brief, will turn good writing into that crisp, clean legal writing which will bring Marie Kondo-levels of joy to any busy trial judge.
Effective Legal Writing Starts With These Tips
Succinct legal writing is a skill that distinguishes exceptional lawyers and can make a significant difference in the outcome of legal disputes. Judges and legal professionals are often pressed for time; delivering concise and coherent written submissions indicate attorneys respect these time constraints, making it more likely their arguments will be carefully considered and appreciated. For more on legal writing and other tips for attorneys, see our Commentary section.