Do I make myself clear?

MOSKOVITZ ON APPEALS

We lawyers spend a good chunk of our waking hours writing stuff. We write briefs, letters, emails -- you name it. So it's worth spending a bit of time studying how to write better. You won't get MCLE credit for this, but it can make you a better lawyer.

There are some excellent books on writing style. The old classic, Strunk & White, "The Elements of Style," is a bit too formal for my taste. I prefer Steven Pinker's "The Sense of Style," which endorses more flair.

But be careful. Pinker (and other writers on writing) includes quotes from some great writers who use lyrical analogies, metaphors, and images. If you have the talent to pull this off, go ahead. But many lawyers just don't have it, and when they try to pull this off, it either falls flat or backfires. If you're not sure whether you have the knack for this, try your hand and show your product to a skeptic. If she isn't convinced, take it out -- and just keep your writing simple.

There are also some books specifically devoted to legal writing, including:

Biskind, "Simplified Legal Writing"

Cooper, "Effective Legal Writing"

Garner, "The Winning Brief"

Mellinkoff, "Legal Writing: Sense and Nonsense"

Parham, "Fundamentals of Legal Writing"

Weihofen, "Legal Writing Style"

Wydick, "Plain English for Lawyers"

I just read a new book that I found more helpful than any of these: "Do I Make Myself Clear," by Harold Evans (Little Brown, 2017). Sir Harold (yes, he was knighted) served as editor of London's The Times and The Sunday Times.

As the title of his book indicates, he focuses on the single most important quality of legal writing: clarity. Judges need to read quickly. They're doing it for work, not for fun. If you don't make it easy for them to understand, they might not want to make the effort to figure out what you mean.

Evans includes some terrific examples of paragraphs that writers had submitted to him -- before and after his editing. His "afters" are usually about a third shorter than the "befores" -- and they are both clearer and stronger.

Here are some of Evans' most helpful tips.

Write short sentences. Cut down on the number of ideas in each sentence. One or two is best.

Don't interrupt yourself mid-sentence. I see this in many briefs I review: "Assuming appellant's statement is correct (which it isn't)...." The parenthetical comment is useless, because the word "assuming" already reminds the reader that you did not accept your opponent's statement. But the parenthetical remark does throw the reader off for a moment, losing the train of thought you were trying to get the reader to buy into.

Mix up the length of your sentences a bit to make them interesting. This is boring: "He drove to the intersection. The light was red. He drove through the intersection." This is better: "He drove to the intersection. Even though the light was red, he drove on through."

Evans relentlessly cuts out clichés, redundancies, and excessive adjectives and adverbs. I agree. I recently consulted on a rather significant 9th Circuit appeal (from a $124 million judgment). One of the briefs was written by a very prominent D.C. lawyer -- indeed, a former U.S. solicitor general. The brief was excellent -- clear and persuasive. But for some reason, it was riddled with clichés and hackneyed adjectives. His client's act was not merely "reasonable," it was "eminently reasonable." The opposing party did not simply "admit" something, he "blithely admitted" it. And that party's act was not just "unauthorized", it was "plainly unauthorized." He didn't merely "ignore" a contractual term, he "conveniently ignored" the term. And his "misunderstanding" of another provision was a "fundamental misunderstanding."

Suppose you are the judge reading these words. If you doubt whether the client's act was "reasonable," would the preceding word "eminently" decrease your doubt? If you are not sure whether the act was "unauthorized," would the preceding word "plainly" change your mind? I don't think so. Intelligent people are persuaded by facts and logical arguments, not by rhetorical tricks. These adjectives might work for politicians on the stump, but they don't impress smart judges. What these adjectives really communicate is: "I'm worried that my facts and arguments won't convince you, so maybe a bit of puffing will help." They don't help. They hurt. So just leave them out.

Focus on the specific more than the abstract. "The employer verbally abused the worker" is weaker than "The employer told the worker 'You can't do anything right, you numbskull.'"

Keep modifiers next to the words they modify. Try to figure out what this short sentence means: "He only went to the store to buy onions at 4 p.m. on Tuesdays." What does the writer mean by "only"? Could be, "He went only to the store" -- and not to a farm. Or it could mean, "He went to buy only onions," not carrots. Or "He went only at 4 p.m.," and not 5 p.m. Or "He went only on Tuesdays," not on Wednesdays. Four possible meanings -- but the reader is given no clue which meaning the writer intended. By putting the "only" before all of the facts in the sentence, the writer has made it impossible to tell which one he meant. The solution: Put the "only" right before the words you want it to apply to, as in "only to the store" or "only on Tuesdays".

Here's another common example of the misplaced modifier: "The Allies did not win the war because they had superior weapons." What does this mean? A reader short on historical knowledge could be forgiven for seeing "The Allies lost the war -- they lost because they had superior weapons." Moving the "not" to the right position conveys what the writer intended: "The Allies won the war, but not because they had superior weapons."

"Well," says the careless writer, "you can tell what I meant from the context, from the surrounding sentences." Think about what this requires the reader to do. The reader must read the sentence, then go back and re-read the prior sentences, or maybe jump ahead and read some other stuff -- and then go back and re-read the unclear sentence. This reader is someone you are trying to persuade. Wouldn't you rather have her read each sentence only once, and continue smoothly through your argument and be persuaded by it? Why make her work to understand what you mean to say, rather than work on the merits of the ideas you present?

Sir Harold provides some great tips and insights. Just as important, his book (and other books on writing) can stimulate your own thinking about how you write and how you might express yourself more clearly.