LawProse Lessons

Textualism remains the primary interpretive method used by most American judges. On Tuesday of last week, the United States Supreme Court issued two of its most thoroughly textualist opinions ever: a majority opinion by Sotomayor J. and a dissent by Kagan J. Both are marked by exceedingly close and lengthy analysis of the text. The […]

Often you’ll find yourself trying to decide whether to include something in expository prose—an extra argument, another illustration, a brief aside, an interesting tangent, etc. The sage wisdom of ancient rhetoricians is to omit everything that doesn’t have some demonstrable benefit. You can see this principle as a form of utilitarianism: include only what is

At LawProse, we recommend extensive fact-checking. For most briefs, the prudent approach is to plan a full day of fact-checking before the brief is due. So if the brief is due Wednesday, all day Tuesday will be devoted to fact-checking—and the writer must plan to have a polished draft Monday (in other words, the brief

Why did Justice Brennan mistakenly write “just desserts”? No one knows. It’s the only misspelling of the phrase just deserts (= what one rightly deserves) in the annals of Supreme Court opinions. Twenty-one times, in fact, the Supreme Court has used the correct phrase, just deserts. But in 1989, Justice Brennan used the demotic misspelling in

In Lesson #235: Learning to write by sedulous aping, we saw how useful it is to try replicating a choice passage from an excellent writer. It’s perhaps the best way to develop your writerly chops. Many readers requested more lessons with similar exercises. I’m happy to oblige. Among the best academic writers today is Felipe

The Timing of a Joke. Should you be able to tell a joke? Sure, if you’re a rhetorician. It’s all about wording and timing. It’s also about understanding that the punch word must come toward the end of a phrase. Here’s a nine-word joke in which the listener’s mind is caught for a moment on

What’s the biggest flaw in a motion for rehearing? The answer is the failure to understand that judges must be allowed to come around to your position without losing face. Although the strategy makes no sense, it is common for advocates to demand that they “must” be reheard because the judge’s decision is “arbitrary, capricious,

Following up on last week’s Lesson #238 (“Are you coordinated, or subordinated?”), we’ve found some striking examples to illustrate the point that subordinate clauses are crucial to persuasive writing. As we saw last week, it’s often useful to avoid merely joining two independent clauses of equal importance with a conjunction such as and. Instead, a

People like being coordinated; they dislike being subordinated. So the terminology of the following tip is a little counterintuitive: subordination is good, coordination often less so. One of the elementary points of composition that really could be called “advanced” (given how many writers overlook it) is the importance of using subordinate sentence structures as opposed

More than 50% of judges and lawyers read almost exclusively on a computer screen. What does this mean for legal writers? Three things, primarily: 1. Summarize. It’s important to learn the art of summarizing concretely. Avoid airy generalizations and instead make pithy, practical, vivid summaries. These should always appear at the fore. (By the way,

The No-Monkey Rule If you’ve cite-checked a brief lately, you’ve probably concluded that your colleagues are unclear about what they’re doing with brackets at the beginning of a quotation. When do you bracket the opening letter or word of a quotation, and when don’t you? Let’s recognize first of all that lawyers are the only

What did David Foster Wallace and Robert Louis Stevenson have in common? They taught themselves to write better using the same technique: reading short passages from superb writers, trying to re-create from memory the passages they’d just read, and then assessing how their own versions compared with the originals. The assumption was always that the original

Like plead, the verb strike causes lawyers and judges to hesitate in forming the past participle: has the judge struck something from the record or stricken it from the record? English-language authorities have long said that the verb strike should be inflected strike > struck > struck, hence today I strike, yesterday I struck, many

More often than you might think, a lawyer will say to me: “Why care so much about tiny points of correctness? A judge isn’t going to rule against you just because you’ve misspelled de minimis.” True enough, but naive. This view disregards the science behind the “halo effect”: a strong showing in matters of form strongly

Why are point headings so crucial to effective brief-writing? I explain why—and how to create powerful ones—in two recent columns in the ABA Journal. You’ll find them here and here. See for yourself why so many lawyers have been circulating these columns to their colleagues. That’s the point of this week’s lesson. For more information on

What’s your conclusion of choice:      1. Wherefore premises considered, Defendants demand this Court grant Defendants’ Motion and enter a take-nothing judgment against Plaintiff.      2. For all the foregoing reasons, Defendants request this Court to grant Defendants’ Motion and enter a take-nothing judgment against Plaintiff.      3. The problem presented by this case is

If we’d thought a moment about it before sending last week’s LawProse Lesson, we’d have foreseen the onslaught of lawyers’ vehement, overheated defenses of pursuant to. It is, after all, the phrase that legalese lovers crave most. They’re addicts who can’t bear a moment of withdrawal. “I use it pursuant to standards of good writing,

Is the phrase “pursuant to” ever substantively or stylistically justified? Perhaps. But in 25 years of editing thousands of legal documents for law firms, corporate clients, and government agencies, the lawyer-editors at LawProse have never encountered a sentence that needed it. The phrase is pure legalese: it does little more than make legal writers feel

A rule of thumb is “a roughly practical measure that is neither precise nor invariable.” The term almost certainly derives from the habit of tailors’ or carpenters’ use of the thumb as the rough measurement of an inch. The earliest known use of the term dates from 1685: “Many profest Christians are like to foolish

After last week’s lesson about defining including to mean “including but not limited to” in legal instruments, several lawyers responded inviting further commentary. One correspondent took up my challenge: “I defy anyone to produce a case in which this definition hasn’t worked, so that including defined in this way has nevertheless been held to introduce an exhaustive