Tag: Legal writing

The Power of Typeface

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

How many animals of each species did Moses take on the Ark?

If you answered “two,” you’re wrong, but you’re not alone. According to a study published in The
Journal of the International Social Cognition Network, 88 percent of people failed to spot the mistake (Noah was the actor in the biblical story). But here’s the interesting part, when a less-common typeface was used, the number of people who failed to spot the mistake fell from 88 percent to 53 percent.

The conclusion of the University of Michigan researchers, as well as numerous other researchers who have conducted similar studies, is that a familiar typeface enables readers to skim effortlessly over words. On the other hand, an unfamiliar or hard-to-read typeface forces the brain to invest greater time and attention. The result is that readers are more likely to spot anomalies.

I observe this phenomenon on a small scale almost every day. When I’m reading a passage that seems amiss for no immediately discernible reason, I’ll often change the typeface. The change, nearly without fail, enables me to quickly diagnose the problem.

The University of Michigan study is the tip of the iceberg when it comes to typography research. A study conducted by researchers at Mindlab International found that people who ate soup ordered from a menu written in Lucida Calligraphy were more likely to enjoy the soup than those who ordered the same soup from a menu written in Courier. In another study, Errol Morris (with help from Cornell University Professor of Psychology David Dunning) found that people who read text printed in Baskerville typeface were more likely to believe the text than text printed in many other typefaces, including Georgia and Helvetica.

The body of research surrounding typeface may not help you write a brief or any other court document that has strict requirements, but it may come in handy when creating a website, sending an e-mail, or designing a business card. Just imagine all that power.

*As an interesting side note, typeface and font are not synonymous despite common usage.

30 Years of Legal Editing

Posted on | by Linda Kruschke

By Cheryl McCord, Legal Publications Attorney Editor

I am a legal editor. For over 30 years, I have edited legal resources used and relied upon by Oregon lawyers. Over the years, I have seen a lot of mind-boggling changes in the editorial process. Frankly, probably because of my advancing age, it’s difficult for me to remember “the way we were.” I will, however, make a feeble attempt to do so.

The Old Days

When I began my career as a legal editor, we paid law students to check the citations in chapters (e.g., running heads for case names) and to alert us to issues that required further analysis. The clerks came to our office to check out chapters (which the authors had sent to us by Pony Express) and then they went to the law library to work on them. They would have to run around the library to get—and put back—multitudes of volumes of reporters, treatises, statutory compilations, and other resources, and then physically turn pages to check an author’s citations. (They had to be physically fit, like firefighters.) Using red ink pens, they made changes and notes on the manuscript pages. After completing a chapter, the clerk returned the manuscript to a legal editor.

The editor then made editorial changes on that same manuscript using a different-colored ink pen (I preferred purple). The editor looked at Oregon cases and statutes while reviewing the legal accuracy of the author’s statements. Inserts and revisions that were too lengthy to interline on the manuscript were hand-written (often illegibly) on separate pieces of paper and attached to the relevant pages. The resulting dog-eared and wrinkled product became a collage of different colors, arrows, doodles (flowers were my specialty), editorial symbols, and materials (including coffee stains, remnants of what the law clerk had for lunch, and other unknown substances—I’m sure the brown smudges were chocolate).

Then our secretary typed the inserts and the messy pages, and used the cut-and-paste method to put the edited manuscript together. This was a very time-consuming (and sloppy) process. We then photocopied this conglomeration to send it to the author, who reviewed our edits and made additional marks on the pages. The chapter was then ready to be sent to an outside typesetter. When the print version was returned to us, we had to proofread the manuscript carefully, line by line. AARRGGHH!!

One thing I’ve learned over the years is that everything is always evolving into something else. Like everything in life, our editorial process has undergone changes that have been so gradual and imperceptible that we didn’t even know they were occurring (such as our hair color—mine is now white; when did THAT happen?).

The Future Is Here

With the invention of personal computers, we began to type our own inserts, but our word-processing specialist had to incorporate the inserts and hand-written editorial changes into the digital version of the chapter. Then, with the advent of online legal resources, we attorney editors enjoyed great access to many different kinds of legal materials and began doing our own cite-checking online. It was amazing—we could sit at our desks and visit many law libraries without having to jump up and down and run down the aisles between bookshelves! We thought that our editorial lives couldn’t get much better than this. But that evolutionary process kept on truckin’.

And then, lo and behold, we discovered digital editing! (Yep, just like Al Gore invented the Internet.) It was miraculous! (Well, okay, I have to admit that I resisted this change. To begin digital editing in MS Word seemed overwhelming—it was so different and revolutionary and there was so much to learn! It’s harder for my old eyes to read words on a computer screen than words on paper. I even questioned my inner being—was I an attorney editor or a word-processing non-specialist? Woe is me.)

The evolution of our editorial process has given life to a better world of editing. I believe that digital editing, coupled with online legal researching by our attorney editors, have improved the quality and accuracy of our publications. We now even have dual computer monitors to enhance the process (one screen for the chapter we’re editing, and one screen for online legal resources).

Digital editing is also a huge benefit to our volunteer authors. The track-changes feature of digital editing in MS Word enables them to readily see where any changes were made to the chapter. (Deletions are noted in boxes in the left-hand margin and additions are marked in red with a double underline.) Rather than destroying trees in order to mail hard copies of edited chapters to authors, we now e-mail chapters to them. Authors seem to appreciate receiving an electronic version of their chapter with tracked changes; it saves them time in reviewing our work.

Some Things Never Change

Although the manner in which I accomplish the finished product has changed over the years, my essential role as a legal editor has remained the same. Editing a legal manuscript involves not only reviewing the substantive accuracy of the author’s work, but also checking the work for spelling, grammar, consistency, and conformity to an in-house style manual. The legal editor is also the person who reviews the chapter from the reader’s perspective, ensuring that the reader will understand what the author has written. An important part of the legal editor’s job is to determine whether the author has left any unanswered questions in the reader’s mind. The editor serves as a link between the authors (who are usually quite knowledgeable about the subject matter) and the readers (who may not be).

As I said before, everything is always evolving into something else. What will attorney editors be like in the future? (I know I’ll be even older.) What if attorney editors evolve into a new species with computer-like brains so that they can do editing and cite-checking in their own minds? At least that would make it easier to work from home.

He Said, She Said

Posted on | by Linda Kruschke | 1 Comment on He Said, She Said

By Ian Pisarcik, Legal Publications Attorney Editor

One of my favorite cartoons depicts a young female student standing next to a tall male teacher. Both are staring at a chalkboard. The chalkboard reads: Stone Age Man, Bronze Age Man, and Iron Age Man. The speech bubble extending from the young girls mouth asks: “Did they have women in those days?”

“Gender-neutral language is achieved by avoiding the use of ‘gendered generics‘ (male or female nouns and pronouns used to refer to both men and women).” This is easier said than done. But so is carrying a tune, and that doesn’t stop nine out of ten I-5 drivers from pulling their lips back and pretending they’re Mick Jagger.

The Oregon Appellate Courts Style Manual states that “[g]ender-neutral terms are preferred, and gender-based pronouns are avoided except when referring to a specific person.” The style guide suggests using “he or she” only when all other constructions fail. The Oregon State Bar Legal Publications Department asks authors to avoid gender-based pronouns as well, but actually recommends the “he or she” construction.

In most cases, this is straightforward (albeit, a little clumsy). The defendant has the burden of raising his Confrontation Clause objection becomes the defendant has the burden of raising his or her Confrontation Clause objection, or the defendant has the burden of raising the defendant’s Confrontation Clause objection.

But things can get tricky when writers decide to alternate between masculine and feminine pronouns. Not only does this tend to confuse the reader, but a recent study conducted by researchers at New Mexico State University found that (1) readers perceive alternating pronouns to be just as gender-biased as masculine pronouns, and (2) readers consistently rate writing featuring alternating pronouns as lower in quality than text with generic masculine pronouns.

Further complicating things are the countless terms that feature the word man. Some are easy to spot and fix: policeman should become police officer, serviceman should become serviceperson. But, there are others that are not as easy to spot or fix: manpower, manhole, ombudsman, penmanship, freshman, and middleman among them.

Achieving gender-neutral writing takes some effort. But it is an effort that most states are making and that OSB Legal Publications wholeheartedly embraces. And the fact that the United States Supreme Court lags behind in this regard should serve only as further motivation for lawyers concerned with eliminating subtle sexism in the field.

And/Or

Posted on | by Linda Kruschke | 4 Comments on And/Or

By Ian Pisarcik, Legal Publications Attorney Editor

Lodged somewhere between income disparity and climate change on the list of greatest threats facing the nation is the use of and/or. I am kidding of course. But on any given afternoon you are likely to encounter one of our editors groping the wall muttering “say what you mean, say what you mean” in response to the unhinged use of this expression. It’s not just persnickety editors that have trouble with the expression¾okay, mostly it is, but the courts don’t like it either! The expression is responsible for two of the most biting lines ever written in an opinion:

[T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients.

Employers’ Mut. Liab. Ins. Co. of Wisconsin v. Tollefsen, 219 Wis 434, 263 NW 376, 377 (1935).

It is one of those inexcusable barbarisms which were sired by indolence and dammed by indifference, and has no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ. I am unable to divine how such senseless jargon becomes current. The coiner of it certainly had no appreciation for terse and concise law English.

Cochrane v. Florida E. Coast Ry. Co., 107 Fla 431, 435, 145 So 217 (1932).

The problem isn’t that and/or has no meaning; it does (one or the other or both). The problem is that it is ambiguous at best and flat-out wrong at worst. As Bryan Garner puts it, “about half the time, and/or really means or; about half the time, it means and.” For example, if a sign says “no food or drink allowed,” it certainly doesn’t mean that you can have both.

So how do you avoid this problem? The answer, as the muttering editor will tell you, is to simply say what you mean. If you mean or, say or; if you mean and, say and; if you mean one or the other or both, say just that. For example, the defendant may be charged with unlawful arrest or malicious prosecution, or both.

Otherwise, you will continue to risk the wrath of judges or attorney editors, or both.

Fiction for Attorneys

Posted on | by Linda Kruschke | 2 Comments on Fiction for Attorneys

By Ian Pisarcik, Legal Publications Attorney Editor

As an attorney, two things are reasonably certain to occur in your lifetime: Sallie Mae will deduct an astronomically high student loan payment from your checking account and someone, somewhere will ask you if you’ve read To Kill a Mockingbird and if you were aware that John Grisham used to be a real honest-to-God practicing attorney. It is at this point that you will calmly try to explain that you read more than just legal thrillers or you will begin shouting and waving your arms like a windmill with a broken turbine. Take solace in the fact that it could be worse. You could be a doctor. Doctors are asked similar questions (insert The House of God and Michael Crichton) followed by a request to diagnose the inquirer’s mysterious malady.

In the spirit of recognizing that your interests extend beyond the narrow scope of your profession, here are ten lesser-known books worth reading that have only a tangential connection to the practice of law.

  1. Fourth of July Creek by Smith Henderson: Released in hardcover last month, Fourth of July Creek is already receiving a lot of praise. The novel tells the story of a social worker who finds a nearly feral eleven-year-old boy living in the Montana wilderness. Dependency attorneys will relate all too well.
  2. Plainsong by Kent Haruf: This novel features a plot that will also strike a chord with dependency attorneys. The story, which would be intriguing in the hands of a lesser writer, is nearly flawless in the hands of Kent Haruf (for my money, one of the best writers alive).
  3. The Hermit’s Story by Rick Bass: Acclaimed writer and environmental activist Rick Bass will appeal to environmental attorneys, lovers of wild places, and fans of powerful writing.
  4. Train Dreams by Denis Johnson: Attorneys could learn a thing or two about being concise from this epic story about a day laborer in the American west told in a mere 128 pages.
  5. The Power of the Dog by Thomas Savage: Attorneys understand the complexities of human beings and perhaps no fictional character is more complex and fully-realized than Phil Burbank in this novel that inspired the better known novella, “Brokeback Mountain,” by Annie Proulx.
  6. Canada by Richard Ford: While most people think of John Grisham and Scott Turrow when asked to name lawyers who became writers, many forget the formidable Richard Ford.
  7. Birds of a Lesser Paradise by Megan Mayhew Bergman: Megan Mayhew Bergman lives on a farm in rural Vermont with her veterinarian husband, four dogs, three cats, two goats, chickens, and a handful of rescue animals. These animals are featured in many of her stories (my favorite is about a woman who drives hundreds of miles to visit a parrot so that she might hear the voice of her deceased mother one more time). Animal attorneys rejoice!
  8. Winter’s Bone by Daniel Woodrell: A dark, gritty novel about taking the law into your own hands.
  9. In the Lake of the Woods by Tim O’Brien: The lauded author of The Things They Carried crafts a complex story about a failed politician who may have murdered his wife in his sleep. A story fit for a bar exam hypothetical.
  10. Independent People by Halldór Laxness: An epic novel set in rural Iceland, Independent People tells the story of a sheep farmer determined to live independently on a nearly unmanageable patch of land. The novel doesn’t have a great deal to do with the law, but it’s beautifully written and most attorneys have at least considered quitting their jobs and moving to a sheep farm in the middle of nowhere.

Honorable Mentions: Meditations from a Moveable Chair by Andre Dubus; Crooked Letter, Crooked Letter by Tom Franklin; Fencing the Sky by James Galvin; Where Rivers Change Direction by Mark Spragg; Winter in the blood by James Welch; and Lives of Girls and Women by Alice Munro.

They say if you want to write well you must read good writing. Perhaps reading some of this great fiction will improve your writing for that next big brief in which you must somehow keep the attention of a judge while explaining your client’s complicated fact pattern.

Searching for Clues in The Bluebook

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

I recently stumbled across Derrick Muller’s blog post, “Was Barack Obama’s Greatest Contribution to Legal Scholarship the Bluebook?” The post posits the following three facts: (1) Harvard Law Review members generally lead the effort to revise The Bluebook, (2) The fifteenth edition of The Bluebook was released in 1991, and (3) Barack Obama was the president of the Harvard Law Review from 1990 to 1991. The fifteenth edition includes massive revisions (the book expanded from 272 to 366 pages). While it is unclear whether the president’s contributions were negligible or significant, Muller’s blog post managed to spark my interest in the history of this often shuddersome book.

The first edition of The Bluebook was published in 1926 by Erwin Griswold, a second-year law student at Harvard, and consists of 26 pages. There is no index and the book devotes two pages to identifying symbols for hand editing manuscripts. The cover isn’t even blue; it is a dull grayish-brown color reminiscent of efflorescence-riddled concrete or perhaps the mouth of the Willamette River. The first line in the first edition states: “This pamphlet does not pretend to include a complete list of abbreviations or all the necessary data as to form.” The current nineteenth edition, coming in at 511 pages (36 of which make up the index), suggests The Bluebook may have strayed from this original intent.

As for those who wish to look for details in the pages of the fifteenth edition, like patterns in tea leaves, foreshadowing the future path of the president, you may want to start with the fact that South Texas College of Law Professor James Paulson called the fifteenth edition the first manual with a “social conscience.” Paulson noted that the fifteenth edition added a substantial number of citation examples written by women, including titles on topics such as feminism, sexual orientation, reproductive rights, and apartheid. You may want to turn to page 103 and note the newly added and apropos (in light of a recent executive order) citation example: Women’s Bureau, U.S. Dep’t of Labor, Leaflet No. 55, A Working Woman’s Guide to Her Job Rights. Given The Bluebook’s current pace, curious minds will have to employ a team of researchers to find such details if another Harvard law review member is ever elected president of the United States.

* Those who may be interested can find full PDF copies of the first 15 edition of The Bluebook here.

Is Your Writing Verbose and Redundant?

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

If you were to assemble together people from the general public, most would agree that lawyers are not very concise. Further, they would likely agree that the verbosity found in most legal texts should be completely eliminated. If the problems with the italicized words in this paragraph are obvious to you, you may possibly defy this stereotype. If you haven’t yet discovered the issue with the italicized words, you may want to review the following list of redundant phrases. Of course, there are hundreds more, but this should get you started in your quest to totally annihilate redundancies from your writing.

  • Advance planning: All planning must be done in advance.
  • By and between: Between alone suffices.
  • Free and clear: As Judge Mark Painter notes, “Free and clear mean the same thing. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.”
  • Increasingly inevitable: A war may be certain or uncertain, but not increasingly certain.
  • Null and void or null and of no effect: Another example of what lawyer and author Bryan Garner calls “amplification by synonym.”
  • Off of: Don’t bother taking something off of the table. Just take it off the table and be done with it.
  • Revert back: Nothing reverts forward, except maybe Michael J. Fox in a DeLorean.
  • Temporary respite: As opposed to permanent respite?
  • Very unique: As the late writer David Foster Wallace notes, this phrase is “at best redundant and at worst stupid.”
  • Will and testament: Yet another common mixed language doublet.

Totally eEliminating doublets from your writing will make your writing it less verbose and redundant, and maybe keep your readers from falling asleep.

Kill Your Darlings

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

The phrase “kill your darlings, kill your darlings” has been attributed to numerous writers, including William Faulkner, Eudora Welty, and Anton Chekhov. The phrase, however, likely originated with British writer and University of Cambridge Professor Sir Arthur Quiller-Couch who urged students to kill their darlings in a 1913 lecture (reprinted in On the Art of Writing). Irrespective of the source, the implication remains the same: get rid of the fluff.

But how do you identify which of your darlings ought to be pulled from the text and burned at the stake?

University of California Davis School of Law Professor Richard Wydick suggests distinguishing between working words and glue words. Working words carry the meaning of the sentence. Glue words hold the working words together. Glue words are necessary but, like fine cabinetry, working words can be carefully selected, cut, and shaped to fit together with scarcely any glue. Take a look at the following sentences:

The ruling by the trial  judge was prejudicial error for the reason that it cut off cross-examination with respect to issues which were vital.

The trial judge’s ruling was prejudicial error because it cut off cross-examination on vital issues.

In the first sentence, 11 of the 24 words are working words. In the second, clearer and more concise sentence, 11 of the 15 words are working words.

In addition to distinguishing working words from glue words, you can become adept at killing your darlings by:

  • Avoiding compound prepositions (e.g., in the event that = if);
  • Cutting clauses to phrases (e.g., while the trial was in progress = during the trial);
  • Avoiding redundant phrases (e.g., added bonus, last will and testament);
  • Avoiding lawyerisms; and
  • Using the Track Changes feature of Word to compare drafts (particularly helpful to those hesitant to kill their darlings).

Killing your darling won’t be painless. But it is a simple way to improve your writing. Perhaps Stephen King put it best when he stated, “kill your darlings, kill your darlings, even when it breaks your egocentric little scribbler’s heart, kill your darlings.” Anyone who has read King’s Tommyknockers, the 800 page doorstop featuring killer vending-machines, would be quick to call this a case of doing as one says and not as one does. That’s fine. Take his advice. Or if you prefer, take the advice of William Faulkner, Eudora Welty, Anton Chekhov. . .

A Beautiful Hypothetical

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

There is a scene in the 2001 film A Beautiful Mind where John Nash’s wife Alicia, played by Jennifer Connelly, discovers that the door to an abandoned tool shed at the edge of the property in a grove of trees has been left ajar. Alicia enters the shed and discovers that the walls are covered with newspaper and magazine clippings. Random words and numbers are scribbled in black marker over the clippings. Thin agricultural rope connects words, images, and numbers. It is in this moment that Alicia realizes the extent of her husband’s mental illness. Though John Nash believes that the clippings are part of a code that can be deciphered in order to identify the exact position of a nuclear bomb being transported somewhere on the eastern seaboard, Alicia sees the installation for what it is: the rambling scrawls of a man deep in the throes of schizophrenia.

This scene often comes to mind when I read complex hypotheticals or doctrinal illustrations that identify parties by unrelated letters, or worse, switch between unrelated letters, proper names, and normative categories. The following is a common example:

A, a contractor, agrees to build a house for B. C, a subcontractor, agrees with A to lay the foundation for $50,000. C supplies goods and services worth $25,000 for which contractor made progress payments aggregating $15,000 as required by the subcontract. C then breaches by refusing to perform further. A reasonably spent $40,000 to have the work completed by D, another subcontractor. C sues A for reasonable value of benefits conferred and the contractor counterclaims for breach of contract. Should plaintiff recover the benefit conferred on defendant for which plaintiff has not been paid?

The above hypothetical distracts the reader and creates unnecessary cognitive demands for two reasons:

  1. Meaningless letters, and
  2. A lack of consistency.

The solution to this problem often depends on the subject matter and the audience. Normative categories (e.g., general, plaintiff) are often helpful in contract hypotheticals written for other lawyers. For example:

General agrees to build a house for owner. Sub agrees with General to lay the foundation for $50,000. Sub supplies goods and services worth $25,000 for which General made progress payments aggregating $15,000 as required by the subcontract. Sub breaches by refusing to perform further. General reasonably spent $40,000 to have the work completed by someone else. Sub sues General for reasonable value of benefits conferred and General counterclaims for breach of contract. Should Sub recover the benefit conferred on General for which Sub has not been paid?

Ohio First District Court of Appeals Judge Mark Painter, on the other hand, urges lawyers drafting briefs to remember that parties have names. Judge Painter notes that “when we use procedural titles, the reader must translate to understand what we mean.” Moreover, “the procedural titles change throughout the case, but names remain the same.” Also, “using names humanizes your client.” Finally, Judge Painter urges lawyers to be consistent. He notes that he once read a brief stating “Defendant-Appellant Mary Jones (hereinafter usually referred to as Jones).” Usually?

Whether you decide to use normative categories or proper names depends on the situation. But unless you want to turn your reader’s office into a mock-up of John Nash’s tool shed, avoid using meaningless letters, or switching heedlessly between meaningless letters, normative categories, and proper names.