12 Tips for Writing Contrarian Legal Articles: A Guide for Traditional Law-Review Writers, Study notes of Law

Download 12 Tips for Writing Contrarian Legal Articles: A Guide for Traditional Law-Review Writers and more Study notes Law in PDF only on Docsity! 50 Plain Language Michigan Bar Journal May 2013 By Joseph Kimble How to Dominate Your Reader— and Make Stewie Griffin Proud This is a talk I gave to law students at the National Conference of Law Reviews, for the annual Scribes dinner. The dinner honors the winner of the Scribes Law-Review Award, given to the year’s best student-written note or comment. hen it comes to legal writing, most lawyers seem to have a contrarian attitude. They flout accepted principles of good writing. They cling to habits and practices that have been criticized, not to say ridi- culed, for centuries. And they continue to think this style is effective, impressive, per- fectly comprehensible, and necessary for legal precision—contrary to what the rest of the world says and contrary to the strong evidence presented by reformers within our own profession. But let’s not daydream about reform. To help shield you from change, I’m offering some special tips for succeeding in the con- trarian, backward-looking world of legal writing generally and law-review writing in particular. Unfor tu nately, your article will never win the Scribes Law-Review Award, but so what? You don’t want to stand out or be different. So here’s how to mark your self as a traditional, establishment legal wri ter and editor—and no mere pur veyor of sim- ple, direct, uncluttered prose. I’ve got 12 extra-special tips for staying the familiar course—and showing reform- ers what they can do with all their plain- language poppycock. #1. Try to have more than half of every page devoted to footnotes. More foot- notes than text. After all, readers care about what you’re saying, but they care more about whether you’ve cited and annotated every authority even remotely on point since the beginning of re- corded history. And the digressions in footnotes serve nicely to break up the tedium of your line of thought. Legal readers expect to have two trains run- ning. That’s just how we do it. We’re sophisticated about these things. #2. Of course, you must—without excep- tion—footnote every sentence, even if you produce a long series of Id.s or even if the point is a matter of com- mon knowledge. If you say—and by the way, I note this with pain—if you say, “In 2012, the San Francisco Giants won the World Series,” you must foot- note it. And you should probably add in a parenthetical that the World Series is played for the North American cham- pionship of the game of baseball. #3. A related secret. Practice the art of the mid sentence footnote. The current rec- ord is 9 footnotes in a 21-word sen- tence. Midsentence footnotes are a sign of how really meaty your sentence is. And the reader benefits because the constant looking up and down is good exercise for the eye muscles and even the neck. #4. Use as many prepositional phrases as pos sible. Readers appreciate this kind of wordiness. Too brisk a pace can be very tiring. So never write “the land- lord’s duty to maintain the common areas” when you can write “the duty of the landlord with regard to the mainte- nance of the so-called common areas.” You know, add some speed bumps— for the reader’s own good. #5. Use pursuant to as often as possible. Some people say it reeks of legalese, but we know better. It adds little grace notes to your writing. We love the po- etry, the musicality, of purSOOant TO. So forget about the common, pedes- trian word under. Not under Rule 10, but pursuant to the provisions of Rule 10. And while you’re at it, never use before or after when you can write prior to or subsequent to. We all know that Robert Frost made a rare misstep when he wrote, “But I have promises to keep/And miles to go before I sleep.” ‘‘Plain Language’’ is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the Plain English Subcommittee of the Publications and Website Advisory Com­ mittee. To contribute an arti cle, contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901, or at kimblej@ cooley.edu. For an index of past columns, visit http://www.michbar.org/generalinfo/ plainenglish/. W I’m offering some special tips for succeeding in the contrarian, backward-looking world of legal writing generally and law-review writing in particular. 51Plain Language May 2013 Michigan Bar Journal It should have been: “And miles to go pri or to my sleeping.” Same with “’Twas the night prior to Christmas.” In short, strive for inflated, high-flown, book- ish lan guage. Never mind what George Bernard Shaw said: “In literature the am bi tion of the novice is to acquire the literary language; the strug gle of the adept is to get rid of it.” What does he know? #6. Strive for an average sentence length of about 35 words. Anything less will not chal lenge your reader enough. Short sen tences are for wimps. And you’ll open your writing to charges of being unsophisticated, dumbed down, baby ish, base, dull, and drab. As your model, look to Tom Wolfe or Norman Mailer. Of course, they’re virtuosos, but we might be too. So prac tice concoct- ing elaborate, intricate sen tences like theirs. You can do it! #7. Likewise, test your readers’ mental agility by saving the main verb—the main action—for late in the sentence. It creates a nice sense of dramatic an- ti c ipation about what’s happening. For example: “The employees, who had tried—no, attempted—for years to re- solve their grievance through a series of meetings with company representa- tives and an arbitrator, finally SUED in federal court.” Wait a minute. A sim- ple verb like sued isn’t good enough. Make it brought suit. Better yet: insti- tuted litigation. #8. Never start a sentence with But. We all know that “How-ev-er,” with a comma, is more rhythmic and stately. Pay no at- tention to how you talk or what good writers do. Lincoln slipped when he wrote, “But in a larger sense, we can- not dedicate, we cannot consecrate, we cannot hallow this ground.” We learned from our high-school teachers that it’s incorrect to start a sentence with And, But, or So. We also learned that we should never split an infinitive, never end a sentence with a preposition, nev er use the first person, and never use a contraction. Heaven forbid that you should write “i-t-apostrophe-s.” We have standards to uphold, and super- stitions to believe in. #9. Never use a dash. The reason is sim- ple: dashes are way too informal for the lofty enterprise of a law-review ar- ticle. Bes ides, then you’ll never have to wor ry about the difference between a hyphen and a dash, or between an en-dash and an em-dash. The world would be a better place if we could just whack a few of those pesky punctua- tion marks. #10. Create as many initialisms or acro- nyms as possible. The more, the mer- rier. Take a name like “The Society to Pre serve the Blues.” For later refer- ences, don’t shorten it to “The Society” or “The Blues Society.” Make it “SPB.” Besides all the pages you’ll save, when you use “SPB” on page 3 and then again a few pages later, the reader will probably have to thumb back through to remember what it stands for—thus re-viewing your article (although in re- verse). That’s quite a nice payoff to you for annoying the reader just a little. #11. Pay no attention to navigational aids or to formatting. Readers are thrilled to be faced with long stretches of unin- terrupted text, without any headings or subheadings to point the way. And do not stoop to using bullets or dia- grams or graphics of any kind. That kind of namby-pamby stuff is for kids only. Also, make sure to use tight line spacing, narrow margins, and lots of all-caps and underlining. Stick with type writer tools. #12. Don’t try for anything humorous or light. Ignore Fred Rodell’s complaint— he was a Yale law professor—that “it seems to be a cardinal principle of law- review writing and editing that noth- ing may be said forcefully and noth ing Last Month’s Contest Last month, I invited readers to revise the following sentence from the old (before December 2007) Federal Rules of Civil Procedure. It’s from old Rule 35(b)(3). The subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provision of any other rule. I promised a copy of Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law to the first two readers who sent me an A revision. I said to “notice the slew of unnecessary prepositional phrases.” Unnecessary prepositional phrases are probably the most common cause of flab in legal and official writing. And what’s the most common indicator of this possible flab? The word of. In the sentence above, there are six or seven prepositional phrases, depending on whether you count the multiword preposition in accordance with as one or two. And there are five ofs. Awful. The new, restyled rule is Rule 35(b)(6). It has one prepositional phrase: This subdivision does not preclude obtaining an examiner’s report or deposing an ex- aminer under other rules. The first winner is Jordan Reilly, of Craig, Smith & Cutler in Eldora, Iowa. His entry: The subdivision does not preclude discovering an examiner’s report or taking the examiner’s deposition under any other rule. The second winner is Linus Banghart-Linn, an assistant attorney general in Lansing. The subdivision does not preclude deposing an examiner or discovering the examiner’s report under any other rule. Obviously, both these entries are very close to the new rule. Well done. A number of entries converted does not preclude to positive form. I admit that it was hard to determine whether, in context, positive form would work as well or better. But even apart from that, I thought the two winning entries stood out. —JK