Even the most fastidious lawyers can make blunders. Try your hand at these ten common examples of legal usage. Then check your answers at the end and see how well you did.   The court order awarded the plaintiff only 50% of its: [(a) attorneys’ fees, (b) attorneys fees, (c) attorney’s fees, (d) either …

LawProse Lesson #279: A short legal-usage quiz. Read More »

It’s truly astonishing just how often badly drafted provisions become enshrined in contractual forms—even those published as “models.” Just in the past week, my LawProse colleagues and I have come upon formbooks containing the following provisions. Can you spot the substantive problems? (1) “Within seven (7) days after the signing of this Agreement, Buyer agrees …

LawProse Lesson #278: Beware formbooks. Read More »

When editing a brief recently, I noticed that it alternated between the phrases noncompetition agreement and noncompete agreement—mostly using the latter. At various points the brief-writer even used noncompete as a noun, especially as in the plural form (e.g., the employees all signed noncompetes). Having ghostwritten a CLE paper on noncompetition agreements for a partner …

LawProse Lesson #277: “Noncompete” competes with “noncompetition” Read More »

Irregularities of any kind prove difficult for people—especially linguistic irregularities. They’re taxing on the long-term memory. For example, there are so many words ending in –cede (accede, intercede, precede, recede, secede) that the one exceptional spelling, supersede, is often misspelled to conform to the etymologically unrelated –cede words. It happens all the time. In print …

LawProse Lesson #276: Unusual Latin endings. Read More »

Some years ago, a federal appellate judge I interviewed said: “The brief had better have something interesting to say after page 20. If it doesn’t, my eyes start glazing over, and I’ll put it down.” It’s true of any piece of writing—and critical to effective advocacy: to have any hope of persuading your reader, you …

LawProse Lesson #275: Keeping the reader’s interest level high. Read More »

After you’ve chosen the perfect quotation from a case, statute, treatise, etc.—and deftly cut it to 49 or fewer words (as we discussed in Lesson # 273)—it’s time to tailor a lead-in that will effectively weave the quotation into the text. Some lawyers drop quotations into the text with no introduction at all. Others improve …

LawProse Lesson #274: Introducing quotations with an effective lead-in. Read More »

The Bluebook (Rule 5.1(a)(i)) requires that all quotations exceeding 49 words must be set off from the text as “block quotations.” In lawyers’ briefs, these are usually single spaced, unlike the rest of the text. In journals and books, block quotations are commonly set in a smaller typeset. All this is well known, as is …

LawProse Lesson #273: How to reduce your block quotations (redux) Read More »

Last week, we addressed the legal writer’s bad habit of emphasizing words by using unsightly and outdated underlining. The better substitute for highlighting specific words or short phrases is italics. Yet there’s a syntactic practice that can be even more effective and forceful: ending your sentences emphatically. Skilled writers know that the most emphatic position …

LawProse Lesson #272: Ending your sentences with punch. Read More »

Lawyers have spent decades trying to achieve emphasis in legal documents by underlining. It’s well past time to stop. Underlining is an unsightly relic from the typewriter era, when italics weren’t usually available. With today’s word processors, there’s no reason to use it—at least not 99% of the time. If you’ve read documents with underlined …

LawProse Lesson #271: Ban underlining in your legal documents. Read More »

An appositive is a noun or noun phrase that further describes or identifies another noun or noun phrase that immediately precedes it. Take this sentence: “Travis Barnhill, the company’s CEO, spoke to the media about the merger.” The phrase the company’s CEO is an appositive of the proper noun Travis Barnhill. Or this: “The dog …

LawProse Lesson #270: A refresher on appositives. Read More »

Average sentence length. What’s recommended? An average sentence length of 20 words. That doesn’t mean that every sentence needs to be 20 words long. You want some longer sentences (well put together, naturally) and some shorter ones (perhaps two or three words). But your average ought to be around 20. John Trimble, the renowned University …

LawProse Lesson #269: Average sentence length. Read More »

Can you think of a common two-word Latin phrase that gets solidified in its abbreviated form? You might cite per centum (per 100) vs. percent—and that’s a fair answer. But perhaps the strangest is et cetera, which becomes etc. (= and other things). The old-fashioned form of it, predominant from 1700 to 1850, is &c. …

LawProse Lesson #268: The two-word Latinism making a solid abbreviation. Read More »

The phrase law of the case is often misunderstood. Properly, it denotes a common-law doctrine that applies most often to cases that have been appealed. When an appellate court makes a final decision in a case, that decision is binding in a later appeal after remand. The decision becomes the law of that case. For …

LawProse Lesson #267: Law of the case. Read More »

What are the primary hallmarks of lazy, mediocre (or worse) legal writers? Pages filled with citations and block quotations. Today we’ll focus just on the latter. The Bluebook says that any quotation of more than 50 words must be set off in a block. The Chicago Manual of Style suggests that a quotation of 100 …

LawProse Lesson #266: The plague of block quotations Read More »

People often ask why it matters what precise word you use (militate vs. mitigate, or masterly vs. masterful) as long as readers or listeners understand what you mean. If there’s no real confusion, they say, why should we get persnickety about words? This view is premised on the pragmatic idea that language is all about …

LawProse Lesson #265: Intelligibility vs. Credibility. Read More »

What’s the most important step in writing a statement of facts? It’s the creation of a chronology of relevant events—a document that lists, day by day and time by time, every important occurrence bearing on the interactions between parties. Lawyers often ask clients to prepare such a chronology as a starting point. Although the quality …

LawProse Lesson #264: The chronology of relevant events. Read More »

A few years ago, Justice Antonin Scalia wrote to complain about the use of such that in place of so that: “Annihilate it!” he told me. “It’s pervasive among lawyers today.” It is an odd usage that I recall having first encountered in high-school geometry {Let a distance CB be taken on the conjugate axis, …

LawProse Lesson #263: The “such that” lesson. Read More »

What’s the plural of attorney general? The answer is attorneys general, not *attorney generals. (The asterisk signifies an always-erroneous form.) A federal judge in New York recently tried to defend his use of the incorrect plural, likening it to brigadier generals. But the analogy is misbegotten: brigadier general denotes a type of military general—and general …

LawProse Lesson #262: The plural of “attorney general.” Read More »

Most professional writing (the type you see in major newsmagazines) is tight; most legal writing isn’t. You want a tip on tightening? After you have a fairly polished draft, look at the last line, half-line, or quarter-line of every paragraph. Play with the paragraph to try to shorten it by one line. It’s a little …

LawProse Lesson #261: Tinkering for tightening. Read More »