Friday 5: Another Crash Course in Better Writing

As an editor, litigator and arbitrator/mediator, I read tens of thousands of other lawyers’ words every year. While most lawyers are generally good writers, I find a handful of faults recurring in lawyers’ writing. Here are five of the most common, all of which are easily cured:

Where’s the Who?

In proper English, the pronoun who (whom) is used to refer to people, while that (which) is used to refer to everything else. For example, “Joan is the one who was standing at the door,” rather than “Joan is the one that was standing at the door.” In recent years, even professional journalists — and, yes, lawyers — have begun using “that” for people, too (“Joan is the one that was standing at the door.”) Although it’s not a crime, using that for people will lose you credibility points, at least among old-school sticklers like me — a group also including many judges, senior partners, and others with influence in the profession.

Parallel construction defects

Lawyers often need to reel off series of words or phrases in a sentence. When done correctly, this is known as parallel construction. When done incorrectly, it is known as a false series, an example of which would be: “The officer searched the front seat, the trunk, and handcuffed the driver.” For proper parallel construction, each element of the series must fit the introductory phrase independently:

• “The officer searched the front seat.” OK.
• “The officer searched. . . the trunk.” OK.
• “The officer searched. . . the handcuffed the driver.” Oops.

Often, the easiest way to fix this is to simply add another “and” between the first two elements, which effectively puts the final element outside of the parallel construction: “The officer searched the front seat and the trunk, and handcuffed the driver.”

Breached agreement

We’re all taught about noun/verb agreement: a verb must match its subject in number and gender. Sometimes out of sloppiness, and sometimes out of the legitimate desire to keep one’s writing gender-neutral, we fail to attend to agreement. I see sentences like this from otherwise good writers: “Under the lease agreement, each tenant is required to keep their balcony free of fire hazards.” The plural “their” doesn’t match the singular subject “tenant.”  Without affecting gender neutrality, this could be recast as “tenants are required to keep their balconies…” or “each tenant is required to keep his or her balcony…”

Lapsing into commas

I recently reread The Great Gatsby, written by F. Scott Fitzgerald in 1925, and considered one of the best-written books ever. One of the first things that struck me was the scarcity of commas. Fitzgerald fashioned fairly lengthy and complex sentences with few discretionary commas and it didn’t impair the work’s readability at all. As a lawyer, I was tempted to write the previous sentence like this: “Fitzgerald fashioned fairly lengthy and complex sentences, with few discretionary commas, and it didn’t impair the work’s readability, at all.” But after reading Gatsby, I realized I didn’t need them.

Very unnecessary

Although the adverb very is meant to add intensity to a description, its use is so common and casual that it adds little to a sentence. Why write “The defendant’s car was going very fast” when you can say, “The defendant’s car was going an estimated 100 miles per hour,” or, “The defendant’s car was going so fast that the plaintiff didn’t see it until the last instant,” or even simply, “The defendant was speeding?” When editing other writers’ work, I routinely delete all instances of very and neither the writers nor readers have ever complained.

For more legal writing tips, check out Michael Heatherly’s “Friday 5: Improve Your Writing” and NWSidebar’s other legal writing posts.