WRITERS’ CORNER
Writing to Win
‘Plain English for Lawyers’ Redux 2011
By Albert J. D’Aquino
M
any attorneys hope to find some easy, magical way
to produce the writing that most impresses us. In 1978,
Richard C. Wydick’s unparalleled contribution to the
discipline of persuasive legal writing was published:
“Plain English for Lawyers,” 66 Cal. L. Rev. 4, 1978.
Many law school curricula have included study of this
38-page article, and all should. More than 30 years later
the concepts introduced in Wydick’s guide to great legal
writing are as relevant as ever. In our firm we have circulated copies to our lawyers, and I find it helpful to
reread the article each year to perpetually ingrain its
effect on my writing. Wydick’s rules are neither magical nor easy, but they do produce the result to which
we aspire: writing clearly, effectively and persuasively to
communicate a legal argument.
Wydick articulated several important, concrete steps
to improve a letter or brief. Summarizing them into one
edict, they amount to edit, edit again and, in that process, strive to eliminate excess verbiage, strive toward
economy of language. The reward for those who undertake this effort is elegant, persuasive writing. Achieving the final result definitely takes time, but it is time
well spent. After years of adhering to Wydick’s tenets, a
writer can produce the desired result—economy of language rich with meaning—with fewer edits and in less
time. In this article, I will acquaint readers with some of
Wydick’s central themes and hopefully instigate interest
in reading his article for all its lessons.
Abandon “Throat-Clearing” Phrases
“Throat-clearing” phrases are those that, when added to
or removed from a sentence, do not alter the meaning:
they are useless. Lawyers use them thinking that they
need them, similar to the way that major league pitchers wind up to deliver a strike across the plate. Pitchers’
wind-ups, however, serve a mechanical purpose in delivering a pitch. When your reader is a court, writing, “It
is important to note that the defendant did not deny his
guilt,” does not have a purpose. Writing, “The defendant
Albert J. D’Aquino is one of the founding partners of Goldberg Segalla LLP, a
firm that has grown from seven attorneys in 2001 to well over 100 in 2011. His
trial practice focuses on the defense of attorneys and physicians in professional liability actions, trucking companies in catastrophic injury cases, and manufacturers
in product liability actions. He has tried cases to verdict throughout the great state
of New York for 25 years and writes the appellate briefs in those of his trials that
are appealed. Mr. D’Aquino is a member of the DRI Appellate Advocacy Committee.
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did not deny his guilt,” conveys the same meaning, and
a court will know that this is important. Why say in 13
words what we can say in seven?
Once a writer accepts this concept, he or she can easily avoid “throat-clearing,” prefatory, wind-up phrases.
Examples abound: “It should be remembered that,” “In
this regard it is of significance that,” “Of all of the many
rationales offered by the parties,” and the list could continue. For some it seems a nebulous, grandiose right of
lawyering to employ such phrases, which may, in fact,
have a place in oral arguments when used sparingly for
maximum effect. In writing, however, they add nothing.
Cumulatively, they make a written product unnecessarily long and may fatigue a reader to the detriment of a
good argument by burying it in verbosity. Which would
you rather have, a two-page letter to a court that leaves
you feeling satisfied with your use of prefatory phrases,
or a one-page letter whose import you make evident to a
court upon its first reading? We know what judges prefer. Give it to them.
Reduce Compound Prepositions
These are the cousins of ‘throat-clearing’ phrases and, as
their relatives, add nothing to the meaning of a sentence.
Why write and make your reader read “prior to” instead
of “before,” “in the event that” instead of “if,” “until such
time as” instead of “until,” or “the fact that” instead of,
well, nothing else? “The fact that the treasurer removed
the clause from the contract may have caused the board
to reject it” is better as “The treasurer’s removal of that
clause may have caused the board to reject the contract.” And it uses fewer words. Compound prepositions
abound in some legal writing, and you can easily reduce
them by simply considering whether in removing them
you lose meaning in a sentence.
Redundancy Is Only That Nothing More
(Sorry, That Was Redundant)
Unfortunately one generation of lawyers passes down
redundant phrases to the next with nary a thought to
ending the legacy. Why tell someone that their failure
to perform the terms of a contract have rendered the
contract “null and void”? If it were only termed null, do
you risk that a court may later find that contract valid?
Is a copy of a document less “true” or less “correct” if
you describe it as one or the other rather than as “true
Writers’ Corner, continued on page 72
© 2011 DRI. All rights reserved.
Writers’ Corner, from page 68
and correct”? Is payment of a fee less than
total if it is only “full payment” or only
“complete payment” rather than “full and
complete payment”? While these examples may seem nitpicky, excellent writing results from nitpicking. Cumulatively,
each seemingly small change in style such
as this yields a sense in a reader that they
understand the message without lingering
doubts about the meaning of certain passages, or without having to endure fatigue
to make it through a brief laden with pointless redundancies. Eliminate redundancies
and synonyms in the same sentence.
Omit Surplus Words
Surplus words are easy to find and destroy
through editing. They almost jump out at
you when you read keeping their existence
in mind. “Despite the fact that she was
injured she walked to the station” means
the same as the economizing, “Though
she was injured she walked to the station.”
Omitting surplus words from one sentence alone may not seem important, but
in an entire brief, the effect is compelling.
It is perfectly acceptable to simply use one
word—“probably”—instead of more than
one word—“in all likelihood”— to convey
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the sentiment that an event is, well, probable. This is a major tenet of Wydick’s article.
Use Shorter Sentences
This is where the rubber meets the road in
refined persuasive writing. Some resist it in
an effort to write sentences that soar with
passion and allusions and end up including
too many thoughts in one sentence. When
writing for an opponent or a court, it is better to write sentences that hit like punches
rather than flurries that don’t quite hit the
mark. Wydick’s rule is simple: limit yourself to one main thought or assertion per
sentence whenever possible. In editing,
divide a sentence with more than one main
thought into as many sentences. Wydick’s
article includes an appendix of exercises to
learn how to do this.
Use Familiar, Concrete Words
Don’t use common “lawyerisms” unless
you absolutely must. Typifying superfluity, “lawyerisms” also distract from your intended point. To this day lawyers will write,
“The contract specified said lessee was responsible for removal costs and any related
cleaning costs.” Would your brief involve a
“phantom” lessee? Not likely. Substituting
the word “the” for “said” in the sentence
would suffice. Using “said” only makes
a reader pause to consider who, exactly,
“said” refers to. If more than one lessee
was involved in a transaction, then reference each by name for clarity. Using “said”
is one of many examples of poor, outdated
word choice. Your goal is clarity, not to exemplify the vestigial verbiage of an obsolete concept of “impressive” legal writing.
Conclusion
Wydick’s humble yet seminal article is filled
with many other lessons for serious legal
writers too numerous to address here. He
counsels using the active, not passive, voice
and shows how to do so. He reviews closely
structuring subject-verb-object agreement in
a sentence and artfully using “elegant variation” to avoid reusing the same word in a
sentence as a finer point of creating an interesting written product. The dividends that
you can reap from Wydick’s methods include
greater persuasiveness and clarity. Fewer
words usually suffice; brevity and commonusage words equal clarity; redundancy is
pointless; and editing is always needed. The
more subtle message to your readers is that
an excellent lawyer must have written the
compelling letter or brief that they just finished reading. Let that lawyer be you.