As a lawyer, writer, and editor for more than 2 decades, I’ve written and read millions of words. I’m proud to say that most of the writing I see from lawyers is pretty good — as it should be, considering how much education it takes to be a lawyer. Still, all of us can easily improve the strength and precision of our writing. Here are tips addressing 5 areas that cause trouble for most writers.
Avoid the passive voice.
The passive voice is where the subject of a sentence is the recipient of action rather than the actor. Lawyers tend to lapse into the passive voice, probably because the facts about which we’re writing are often disputed or unclear. We feel obligated to hedge our bets. Still, go with the active voice whenever possible, as it adds strength and confidence to a statement.
Bad: The pedestrian was bitten by the dog.
Good: The dog bit the pedestrian.
Avoid inverted sentences.
Yoda speaks in inverted sentences, in which the object precedes the subject. He complicates matters by also using the passive voice. Only Yoda and a few legendary poets should be allowed to get away with this kind of thing
Yoda: Named must your fear be before banish it you can.
The rest of us: You must name your fear before you can banish it.
Use strong, specific nouns and verbs.
Using strong nouns and verbs, rather than shoring up weaker ones with modifiers, will shorten and sharpen your writing.
Bad: The very angry espresso stand employee closed the window with a great deal of force.
Good: The enraged barista slammed the window shut.
Avoid dangling participles.
Just as your eighth-grade teacher said, dangling participles trip up and confuse readers, a particular pitfall in legal writing.
Bad: The defendant fled the officer, still carrying the weapon in his hand. [Who’s carrying the weapon?]
Good: Still carrying the weapon in his hand, the defendant fled from the officer.
Save words, clarify meaning, add impact.
Once you’ve finished writing and editing your work, go over it once more specifically looking to eliminate words you don’t need, replace weak words with stronger ones, or reorganize sentences for clarity.
Bad: The defendant was required by law to choose among the multiple options presented.
Good: The law required the defendant to select an option. [saves four words]
Bad: The plaintiff was the victim of two violent acts committed by the defendant.
Good: The defendant stabbed (or whatever) the plaintiff twice. [saves seven words]
Bad: The defendant was under the direct supervision of the plaintiff.
Good: The plaintiff supervised the defendant. [saves five words, as long as “direct” isn’t at issue in the case]
Bad: At this time, the defendant is unwilling to enter into discussions regarding potential settlement of this matter.
Good: The defendant will not discuss settlement. [saves 11 words]
Michael Heatherly. Michael Heatherly is the editor of NWLawyer. He practices law in Bellingham and owns Northwest Dispute Resolution Group, a mediation and arbitration organization.
Trent Latta
I am happy to learn that most the writing you see from lawyers is good. My experience is the opposite: during my time working with the California Supreme Court and a federal district judge, and now in connection with my practice, the vast majority of writing I see from other attorneys is complete garbage.
Attorneys, I think, not only discount the positive impact quality writing can have on their advocacy, but they also fail to appreciate how much bad writing can negatively influence a judge’s, a client’s, and opposing counsel’s impression of them.
I do not think much of an attorney’s abilities, for example, when I read a sentence such as this one that landed on my desk yesterday in an opposition brief: “Defendant use multiple tactics in their briefs to undermine said allegations in said complaint.”
Thank you for your helpful writing advice, Michael. But again, I disagree that the writing in our legal community is of the quality that it should be.