Be A[n Occasional] Legal Writing Rebel
Be A[n Occasional] Legal Writing Rebel
Some rules about breaking the writing rules; and some notes on "rules" that aren't really rules.
Rules about grammar and good writing exist for a reason. Writing, after all, is a means of getting a thought from one brain to another—sometimes across decades or centuries—through a common set of symbols. (Pause for a minute to consider how amazing it is that is even possible and how much we take it for granted.) That thought-sharing process only works if we all agree to a set of conventions on how the symbols we use work.
But rules, as they say, are meant to be broken. And while no one should write a brief in Wingdings, a slight deviation from the norm can break up the monotony and add a spark to your writing.
How to Break the Rules
What are some examples of “good” rule breaking? Consider these:
Use a Sentence Fragment
A complete sentence has, at minimum, a noun and a verb. And any sentence that doesn’t is not a proper sentence. But there are times where using a sentence fragment can add verve or a dash of color to legal writing.
One place is where you are transitioning from stating an argument to responding to it or from describing a case to applying it:
“Defendant Officers argue that they are entitled to summary judgment because everyone agrees the officer acted reasonably here. Mr. Smith had a gun on his person, so—they say—everything they did was justified.
Not so. While Mr. Smith’s gun may have justified some precautions, it did not justify the amount of force the officers used.”
“Our recent decision in Octane Fitness arose in a different context but points in the same direction. In that case we considered § 285 of the Patent Act, which allows district courts to award attorney's fees to prevailing parties in “exceptional” cases. The Federal Circuit had adopted a two-part test for determining when a case qualified as exceptional, requiring that the claim asserted be both objectively baseless and brought in subjective bad faith. We rejected that test on the ground that a case presenting “subjective bad faith” alone could “sufficiently set itself apart from mine-run cases to warrant a fee award.” So too here. The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.”1
Balderdash. Not so here. Exactly. Too true. Very true. There are many examples. Of course, if you want, you could do away with the fragment by substituting a colon for the period. It all depends on how pointed and brisk you want to be.
Another way to use a fragment, and a personal favorite of mine, is to emphasize that a long list of facts is only meant to provide examples:
“The investor plaintiffs based their allegations on, among other things, the Parent Bank's regulatory filings from 2006, which touted its ‘conservative underwriting standards that include evaluation of a borrower's debt service ability’ and internal underwriting process. They also pointed to a 2007 filing by the Parent Bank that boldly asserted: ‘We expect that our historically conservative credit standards and relatively low loan to values will keep our loss experience well below industry averages.’ Even more boldly, the Parent Bank issued an April 2007 press release that included this statement by the company's CEO, Alfred Camner: ‘[O]ur levels came in better than we projected last quarter. This is because of our conservative underwriting. We do not engage in subprime lending and, as a portfolio lender, we treat each loan as if it is our own.’ And so on.”2
Passive Voice
Passive voice, in most cases, is a problem—not least because it is tough to define. You speak in passive voice if you make a verb’s object (the thing being acted on) the subject of a sentence. So for example: Mistakes were made by him. By contrast, active voice makes the actor the sentence’s subject: He made mistakes.
Using passive voice often bogs down writing, both because it often requires more words and because the reader has to wait to know who the actor is. So—all else being equal—you should write in active voice.
But there are reasons not to.
For example, many appellate judges will write in passive voice to avoid casting aspersions on a trial court judge. “Granting the motion was an error” is softer than “the trial court erred by granting the motion.” You, too, can use passive voice as a means of creating distance between action and actor.
More often, passive voice is effective where the object is more important than the actor. So, in a criminal case, “Mr. Smith was arrested” usually makes more sense than “the police arrested Mr. Smith.”
Contractions
Good legal writing is conversational, but not like a conversation between buds over a beer. It should sound like you when you are explaining an argument to your boss.
Using contractions in formal writing can make it seem too chummy or folksy. So there is some merit to the general rule that writers should avoid them. But not always. Sometimes not using contractions is distracting and sounds too stiff. The occasional contraction here or there isn’t a crime.
Fake Rules
While we are on the topic of rules, there are some writing canards that people insist on enforcing even though they have no basis in … well … anything. You should feel free to ignore these. And I’ve provided citations to writing manuals—indeed, perhaps too many citations—in case your supervisors object. (God speed if you can’t convince them.)
Split Infinitives …
… are fine.3 Mr. Spock’s mission was to boldly go where no one had gone before, not boldly to go there or to go there boldly. Use your writer’s ear and stick with what sounds natural. It is often more distracting to avoid a split infinitive than it is to use one.
Starting Sentences with And or But
Do it.4 It makes your writing flow better, draws connections between sentences, and builds a sense of momentum. You’ve probably noticed I’ve done it quite a few times even in this piece.
One Sentence Paragraphs …
… can be a good way to emphasize a key point.5 Enough said.
Ending a Sentence with a Preposition
It is okay to do it every now and then, especially when the alternative is an awkward turn of phrase.6
Write in Second Person
It sounds a lot more natural than saying “one would” or “one should,” or some equally stilted phrasing.7 Of course, overuse can seem to chummy and like you are telling the reader what to do (never a great idea when you are talking to a judge). But that just leads to the next point.
Rules About Breaking Rules
All of this does not mean you should break rules with reckless abandon. Rules (the real ones, anyway) are rules for a reason: generally, they make writing clearer and better. So here are some guidelines on when to deviate:
Do It for a Reason
Breaking the normal rule should be a conscious choice, not an accident. If you are going to use a sentence fragment or passive voice or some other non-standard formulation, you should have a reason for doing it. Does it make the writing clearer? Does the alternative sound stilted? Does the rule-breaking emphasize something that would otherwise be easy to miss? If so, consider breaking the normal rule.
If you’re just breaking the rule to be a rebel, its probably best not to.
Do It in Moderation
Breaking a rule here or there makes you seem confident, especially if it is effective. Breaking the rule all the time makes it seem like you don’t know what the rule is. And it removes the freshness and impact a departure would otherwise have.
Don’t Let It Be a Distraction
Every writer has a unique voice, but that voice should not get in the way of the message. If breaking a rule is too jarring, the reader will be thinking about how you wrote instead of what you wrote. Use your own good judgment and, if you are in doubt, it is always safer to stick to standard forms.
Conclusion
In sum, it is okay to break a writing rule every now again—even if doing it would have earned you a rap on the knuckles in high school. So experiment, try new things out, and see what works (within reason). Who says writing can’t be fun?
I owe a special thanks here to Judge Ed Carnes of the Eleventh Circuit and Judge Raymond Kethledge of the Sixth Circuit who, between a clerkship in Alabama and a class on appellate practice at Michigan Law, taught me most (if not all) of what I know about legal writing.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.
Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S.Ct. 1923 (2016) (per Roberts, C.J.).
Zucker v. U.S. Specialty Insurance, 856 F.3d 1343 (11th Cir. 2017) (per Carnes, C.J.).
Bryan A. Garner, Garner’s Modern English Usage 854, 877-78 (2016) (“Although few armchair grammarians seem to know it, some split infinitives are regarded as perfectly proper ….”); Wilson Follett, Modern American Usage: A Guide 285 (Erik Wensberg, ed. 1998) (“The superstition that deplores the split infinitive dates from the nineteenth century. But the practice—putting words, most often an adverb, between to and the verb—has gone on since the thirteenth.”); Theodore M. Bernstein, The Careful Writer 424-25 (1965) (“There is nothing wrong with splitting an infinitive … except that eighteenth- and nineteenth-century grammarians, for one reason or another, frowned on it. And most grammar teachers have been frowning ever since.”); H.W. Fowler, A Dictionary of Modern English Usage 579 (2d ed., Ernest Gowers, ed. 1965) (“The English-speaking world may be divided into (1) those who neither know nor care what a split infinitive is; (2) those who do not know, but care very much; (3) those who know and condemn; (4) those who know and approve; and (5) those who know and distinguish. Those who neither know nor care are the vast majority, and a happy folk, to be envied by most of the minority classes.”).
Garner, supra at 48 (“It is a rank superstition that [and] cannot properly begin a sentence”); id. at 133 (“It is a gross canard that beginning a sentence with but is stylistically slipshod); Follett, supra at 27 (“A prejudice lingers from a bygone time that sentences should not begin with and. The supposed rule is without foundation in grammar, logic, or art.”); Fowler, supra at 606 (referring to the idea—perhaps too harshly—as an “unintelligent application[ ] of an unintelligent dogma”).
Garner, supra at 878; Bernstein, supra at 324 (“A paragraph may be of one sentence or it may be of ten.”); Fowler, supra at 434 (“There can be no general rule about the most suitable length for a paragraph …. The paragraph is essentially a unit of thought, not of length ….”).
Garner, supra at 723 (“The spurious rule about not ending sentences with prepositions is a remnant of Latin grammar …. But Latin grammar should never straitjacket English grammar.”); Fowler, supra at 475 (“Follow no arbitrary rule, but remember that there are often two or more possible arrangements between which a choice should consciously be made. If the final preposition that has naturally presented itself sounds comfortable, keep it; if it does not sound comfortable, still keep it if it has compensating vigor, or when among awkward possibilities it is the least awkward.”).
Garner, supra at 651 (“In [American English], one (= any person indefinitely) is extremely formal. To most American speakers, it seems bookish and pedantic. … For ordinary purposes, you is a better, more relaxed choice.”); Bernstein, supra at 486 (“In the sense of one, the word you can convey directness and informality in writing ….Like any other writing device, this one should not be overdone.”)