Legal writing involves rules large and small. Let’s consider a small one.
Suppose you’re writing a brief involving Miranda v. Arizona, 384 U.S. 436 (1966). Eventually you want to discuss the case’s holding.
Is it Miranda’s holding?
Or is it Miranda’s holding?
In other words, when we write the possessive form of a case name, do we italicize the apostrophe-s?
Yes, my friends, we often do, but we should not. Indeed, the rule is that when any italicized word or phrase is made possessive by adding apostrophe-s, the apostrophe-s is not italicized. For example, it is correct to write “Gone With the Wind’s publication date is 1936” rather than “Gone With the Wind’s publication date is 1936.”
A small detail? Sure. But that type of attention to detail shows the court you pay attention to details.
Grammar and punctuation involve many rules. As a general rule, The Scribe is no fan of rules. As Thoreau said, “Any fool can make a rule, and every fool will mind it.” Yet, in matters of writing, some rules must be observed because the consequence of ignoring the rule is that the writer dons the jester’s hat and looks the fool.
The Scribe recently reviewed an appeal brief prepared by a leading member of Big Law, the kind of place that would have summarily rejected The Scribe and his humble pedigree. Given the firm’s reputation, it came as a surprise that the brief consistently violated one of the unyielding rules of punctuation: the comma and the period always go within the closing quotation mark.
The Scribe can find some sympathy for the brief’s hapless author because the rule makes no sense. This should be the rule:
If the comma or period is part of what is being quoted, it goes inside the quotation mark.
If it is not part of what is being quoted, it goes outside the quotation mark.
That would be a sensible rule. But it’s not the rule. Instead, the comma and the period always go inside the quotation mark, even when the original quotation does not include the comma or the period.
Some rules may be ignored. This isn’t one of them. Although it is sensible to disagree with the rule, it is not sensible to ignore it—that would be foolish.
The judges we appear before, and importantly who receive our written work, are likely to use tablets for reading our briefs. Does this mean we should alter our approach to writing briefs? From what I’ve heard, the answer is “yes.” Most judges agree it is harder to understand an argument when read on a screen instead of paper. Fortunately, there are simple techniques to make our arguments easier to understand, even when read on an iPad.
Keeping track of arguments
Judges often remark that when reading a document in electronic form, they often lose track of where a specific argument fits within the overall argument, as well as where the particular argument is supposed to be going. Part of the problem is that it’s harder for the reader to move around inside an electronic document than a paper document, which makes it difficult for the reader to look back to see how a specific point fits within the larger argument.
Judges want descriptive headings
Judges suggest liberally using descriptive headings. Judges find that frequent headings provide useful guideposts that assist with understanding and following an argument’s progression. Think of it like driving at night down an unfamiliar road. Although you might think you know where you are and where you’re going, the occasional route marker provides welcome confirmation of the direction you’re headed.
Let’s talk some more about using defining parentheticals. *Yay!* Last week’s column suggested that defining parentheticals are often unnecessary because the reader doesn’t need help figuring out that, for example, “Allstate” means “Allstate Insurance Company.” But sometimes a defining parenthetical can be both helpful to the reader and a subtly persuasive device.
In multiparty cases it is often hard to remember who did what. If Smith hired Jones, and Jones arranged for Smith to purchase property from Williams and Cook, then Williams and Cook decided to sell the property to Johnson…well, do you suppose the court might have a hard time keeping straight the respective roles of Smith, Jones, Williams, Cook and Johnson?
Next time, instead of referring to the parties by name, or by case status (plaintiff, defendant, third-party defendant), use a defining parenthetical to identify the party by its role in the events giving rise to the case. Consider these paragraphs and decide which one is easier to follow:
- Plaintiff Suzy Smith (hereinafter “Smith”) hired defendant Bill Jones (hereinafter “Jones”) to assist Smith in purchasing some property owned by defendants William Williams and Harry Cook (hereinafter “Williams and Cook”). Smith, through Jones, reached an agreement with Williams and Cook to purchase the property. But before that transaction closed, Jones assisted Williams and Cook to sell the property to John Johnson (hereinafter “Johnson”). In this action, Smith seeks damages from Jones, Williams and Cook, and Johnson.
- Suzy Smith (“Buyer”) hired real estate agent Bill Jones (“Agent”) to assist in the purchase of real property from William Williams and Harry Cook (“Sellers”). Buyer, through Agent, reached an agreement with Seller to purchase the property. But before that transaction closed, Agent assisted Sellers to sell the property to John Johnson (“Actual Purchaser”). In this action, Buyer seeks damages from Agent, Sellers, and Actual Purchaser.
In this example, we’ve used defining parentheticals to eliminate names altogether and identify the parties by the roles they played in the transaction.
The term or phrase you choose to identify the party should always be fair and neutral. For example, it would be inappropriate to do something like this: “This action involves claims by Plaintiff Mary Smith (“Malingerer”).” But it is perfectly fair to choose a neutral term that has more or less favorable connotations. For example, we once had a case involving a tavern shooting, and the gunman was the third-party defendant. We defined him as “the Shooter.” Although that was a neutral term, it couldn’t help but remind the court who the real wrongdoer was in the case.
That is all for now …
How many times have you seen something like this:
Defendant State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”) moves for summary judgment against all claims alleged by plaintiff Joe Victim (hereinafter “plaintiff”).
Is it really necessary to tell the reader that future references to “State Farm” mean “State Farm Mutual Automobile Insurance Company” and future references to “plaintiff” mean plaintiff? Probably not. A reader of average intelligence understands that without the obligatory defining parentheticals. Consequently, these defining parentheticals serve no purpose other than to clog the sentence and interfere with the writer’s message. No rule of grammar or good sense mandates using such defining parentheticals, so omit them where the shortened form is obvious.
But sometimes the shortened form is not obvious. In those instances, the defining parenthetical is a useful to the reader. Here are a couple examples of defining parentheticals that are helpful:
- This case arises from plaintiff’s claims against Monopoly, Inc. and its board of directors (collectively “Monopoly”).
- This is a products liability action against Fred Meyer, Inc. (the “seller”) and Zippo (the “manufacturer”).
Finally, leave out the “hereinafter.” The reader understands the purpose of a defining parenthetical. Remember, our goal is to get to the point rather than to obstruct it, and putting garbage in the reader’s path interferes with achieving that goal.
That is all for now …
I spent last Monday in Seattle, and was struck by a sense of loneliness. Birds singing for a mate. Lovely, intelligent restaurant servers hoping for a date. And my thoughts turned to sentences that leave out strong verbs. So here I am, writing about nominalizations.
There are many kinds of nominalizations, but this week we discuss the use of nouns that contain within them a buried verb (usually followed by a weak verb). These vague, abstract nouns do the work of a strong verb—which leaves the verb home, alone, and without a date. *Sigh* Worse yet, the resulting sentence is likely to confuse (and annoy) your reader. Consider these examples:
- Beth conducted an investigation of the remediation efforts. [Bad nominalization.]
- Beth investigated the remediation efforts. [Good sentence.]
- An evaluation was undertaken as an investigation of the process by which common law evolves. [Bad nominalization.]
- We evaluated the process by which common law evolves. [Good sentence.]
- Stephen had a discussion with the judge concerning premises liability law. [Bad nominalization.]
- Stephen discussed premises liability law with the judge. [Good sentence.]
- A re-examination of the caselaw led the judge to a reconsideration of the summary judgment motion. [Bad nominalization.]
- After re-examining the caselaw, the judge reconsidered the summary judgment motion. [Good sentence.]
The lesson here? If you want to make your sentences more clear and concise, choose a verb over a nominalization. Oh, and be sure to tip your server so she’s not broke and alone!
That is all for now …
Over the next several months I will supplement the Scribe’s Tip with a “Redux” edition—in which some of the tips from the past three years are reposted for the benefit of new readers.
Today’s “Redux” tip comes from the 2003 movie, “Pirates of the Caribbean.” Now, you are probably wondering what a movie based on Spanish and Portuguese sailing legends and folklore could offer writers. Simplicity. Consider the following exchange between Captain Barbossa and Elizabeth Swann:
Elizabeth: Captain Barbossa , I am here to negotiate the cessation of hostilities against Port Royal.
Barbossa: There are a lot of long words in there, Miss; we’re naught but humble pirates. What is it that you want?
Elizabeth: I want you to leave and never come back.
Barbossa: I’m disinclined to acquiesce to your request. Means “no.”
The lesson here? Avoid overly fussy words—always use the simplest word that means the same thing. Over time, you will discover that more confident you are as a writer, the simpler your writing becomes. This is a good thing. As Ninth Circuit Chief Judge Alex Kozinski once observed, “Simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.” So simplicity is your friend, and less truly is more.