Jan 19 2012
Across categories of judicial opinions, briefs, and law review articles, the use of male-gendered pronouns and generics (such as using _businessman_ instead of _businessperson_ or _layman_ instead of _layperson)_ when referring to all people is prevalent. (_See_ 16 Colum. J. Gender & L. 643, 661 (2007)) Experts are divided on whether the use of gendered language is appropriate. Some say that striving towards gender-neutrality in text is unduly cumbersome. Other experts, like Bryan A. Garner, argue that using gender-neutral language gives the writer credibility to a wider range of readers.
I am a proponent of using gender-neutral language when referring to all people, particularly in legal writing. My reasons are both practical and political. I agree with Garner that using gender neutral language bolsters a writer’s credibility to a wider range of readers. In part, this is because of the politics involved. American culture has taken significant steps away from the notion that “she” is included in “he”–politically and socially. Readership, regardless of gender, might very well consider the use of male-gendered words a failure to reflect this social shift linguistically. It might also be offensive to a reader who interprets the use of male-gendered words to be an exclusion of all others from certain spheres, despite the writer’s intent. Similarly, unlike the times when the legal profession was only open to men, and, therefore, most readers of legal writing were men, a reader might not be a man. If not, a piece that uses male-gendered language could alienate the reader. Alienation causes any reader to disengage, hindering the writer’s persuasiveness and credibility.
Additionally, male-gendered words, such as “man” or “he” are not synonymous with “people” and, therefore, are not the most precise word choices. The lack of precision can cause reader confusion. For example, when a writer intends to articulate a law or principle applicable to all people and uses gendered language to do so, a reader can easily be confused into thinking the writer is only referring to the particular parties at issue. Indeed, studies support the likelihood of reader confusion from the use of male-gendered words: for most readers, using words like “chairman” instead of “chairperson” evoke images of men in those roles, not of all people.
Using gender-neutral language is also important from the perspective of equality. Our social reality and language are related. Seemingly innocuous language can reinforce gender stereotypes and status differences, despite the writer’s intention. Using language that includes only men marginalizes and excludes the experiences of others. It symbolizes, endorses, and perpetuates gender inequality. Because the law plays a significant role in shaping the boundaries of human interaction and progress, using gender-neutral language in legal writing is a subtle, yet powerful, tool for advancing equality.
There are several techniques for avoiding gendered words that should be used in conjunction with each other. Varied and thoughtful use of the techniques will help avoid the primary criticism for using gender-neutral language: that it is cumbersome.
Pluralize. Instead of “Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he has committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance” (Judulang v. Holder (slip opinion, J. Kagan)) write “Take first aliens convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that they have committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance.’”__
Repeat the noun. “Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that the alien has committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance.’”
Use paired pronouns. “Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he or she has committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance.’”
4. Use “they” as a singular pronoun. This technique is only starting to gain acceptance in writing. Because it is still controversial, if you choose to use it, reserve it for instances when you know your reader well or for more causal writing. “Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that they have committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance.’”
Avoid gendered generics. The implications of gendered generics sometimes go unnoticed because the use of these words is widely accepted. The most obvious gendered words are “man” (i.e. “all men are created equal”) and words containing “man” (i.e. mankind, man-made, mailman). Be aware of these words and replace them with gender-neutral alternatives (i.e. humankind, synthetic, mail carrier).
Be consistent with how proper nouns are treated. If you refer to men by their last name, refer to women the same way. Refer to women by their full titles, just as you would with men. Use “Ms.” instead of “Miss” or “Mrs.” ”Ms.”–like “Mr.”–does not indicate whether a person is married or single and, therefore, does not define a woman by her relation to a man.
Jan 6 2012
Editing your own work is one of the most important parts of legal writing; a first draft (and probably even a fifth draft) rarely captures an argument in its clearest, most concise form. This is partly because when we set off on the task of writing a piece we often transcribe our thoughts as we say them in our heads to ourselves. But our thoughts can be repetitive and incoherent for an outside reader. The editing process is, in part, the process by which we step outside of our own heads and place ourselves in the position of the reader. We have the benefit of knowing what message we are trying to convey and ask ourselves two questions. The first is, if I did not already know what I was trying to say, would I know the author’s point? And, if I would know the author’s point, is it stated as clearly as it could be? Editing is what creates a persuasive argument accessible to a reader.
Self-editing style is personal and evolves as your legal writing skill develops. For me, editing can feel like an endless process (isn’t that why it is called a final “draft”?), limited more frequently by time constraints and attention span than actually reaching the point where no further edits would improve a piece. I like to edit as I write. I might draft one section or paragraph, edit it, draft another, and go back and further edit the first section and then the second, before starting to write the third. For this reason, much of my editing happens on the computer first and is closely integrated with the writing process itself. Ultimately, however, it is always wise to edit on paper at least for the final round. Regardless of your editing style, here are five basic principles to keep in mind when editing.
Shorter, Tighter, Fewer Sentences. Look for ways in which sentences can be shortened by eliminating words without changing the meaning of a sentence. Sometimes, a sentence can be eliminated altogether because it repeats an idea already expressed in the piece or can be easily combined with another sentence.
Word Choice. Unless a term of art or otherwise impossible because of necessity, try to vary your word choice to avoid monotony for the reader. Ensure that the words you chose are the most precise and have the most persuasive connotations for the message you are trying to convey.
Transitions. Non-sequetors run rampant on our own heads, easily find their way into our writing, and can be hard to identify when editing. Pay special attention to whether an idea in one sentence flows seamlessly into the the idea in the next. The same goes for paragraphs.
Consistency. Refer to the same thing in the same way throughout the piece. If you identify something by an acronym or abbreviated phrase, make sure its definition is clear. Use the same format for headings and subheadings.
Proofread. Correcting grammar, typographical, and citation form errors seems obvious, but it is not so obvious that these errors do not persist in final drafts. Although an occasional error of this sort might be excused, they signify carelessness, and, ultimately, delegitimize the writer and the argument.
Dec 1 2011
I always find it difficult to read TEXT IN ALL CAPITAL LETTERS. Now I know I am not alone. Here is an interesting article by Professor Ruth Anne Robbins about tools of visual persuasion in legal writing. Professor Robbins makes the point that how a piece of legal writing looks makes it easier to read and can, therefore, influence its persuasiveness. Professor Robbins bases her thesis on the results psychological studies about reading and readability. An argument presented in a visually effective manner is better understood and retained by a reader. It might also bolster the credibility of the writer.
In addition to her #1 recommendation not to use all capital letters, some of the suggestions Professor Robbins has are 1) contrasting the font used in the text with that in the headings by using a serif font for text (like Times New Roman) and a [I always find it difficult to read TEXT IN ALL CAPITAL LETTERS. Now I know I am not alone. Here is an interesting article by Professor Ruth Anne Robbins about tools of visual persuasion in legal writing. Professor Robbins makes the point that how a piece of legal writing looks makes it easier to read and can, therefore, influence its persuasiveness. Professor Robbins bases her thesis on the results psychological studies about reading and readability. An argument presented in a visually effective manner is better understood and retained by a reader. It might also bolster the credibility of the writer.
In addition to her #1 recommendation not to use all capital letters, some of the suggestions Professor Robbins has are 1) contrasting the font used in the text with that in the headings by using a serif font for text (like Times New Roman) and a]4 dark font for headings (like Arial); 2) cueing a hierarchy of headings with different font sizes, moving from larger to smaller; 3) creating visual chunking by adding a space between paragraphs and omitting or minimizing indentations at the first line of a paragraph; 4) keeping headings and related text close to each other; and 5) left justifying the text.
While individual court rules might foreclose some of these formatting suggestions, to the extent possible, lawyers should use all parts of a document, including its format, as an opportunity to persuade.
Nov 22 2011
I recently thought long and hard about how to frame a legal issue of first impression for a bench memorandum. The way the issue was framed would not necessarily affect the outcome of the particular case before the court. But the case–and the opinion–will lay the foundation for the next case in one way or another, and neither way is inherent in the existing precedent. Although the decision is ultimately not mine, how the issue was framed at the initial stage could color how it is perceived by the judges and the nuances of the resulting opinion.
For me, this exercise was a reminder of the importance of carefully framing the issue in persuasive legal writing. It is the reader’s first impression of how compelling the argument is and the legitimacy of the writer. Framing the issue is relevant beyond the ”Issues Presented” section of a brief or memo and the way it is done should be consistent throughout. The issue is the point of the piece and will be repeated, each time, hopefully, with an additional reason why the reader should be convinced of the argument.
Think of framing the issue as constructing a telescope through which the entire argument will be viewed and positioning the telescope in the direction of where you want the reader to end up. Like the lens of the telescope, the issue should be clear. Be accurate, deliberate and concise in your word choice. Negatives should be avoided when possible. For example, “the right to be free from employment discrimination is well-established” is better than “the right to not be discriminated against in employment is well-established.” Think about the connotations of each word and if there is another word that makes your argument more appealing, perhaps because your position makes common sense when framed a particular way.
A well-framed issue can also help keep the telescope pointed in the direction you want to reader to go. If there are compelling facts that a reader might empathize with, those can be included. For example “the BIA violated petitioner’s due process rights by failing to consider that he is a single father of four and the sole wage earner in his household” is better than “the BIA violated petitioner’s due process rights by not granting him a waiver.” The issue should also be framed to make the court comfortable with the broader implications of ruling in your favor. Take the recent oral argument in the Supreme Court (a nice summary is here) as an example, where the many of the Justices expressed concern that GPS tracking could be used on members of the Court if they ruled in favor of the Government. We will see where the discomfort leads them, but it shows that emotion is involved in judicial decision-making, regardless of how much it is repressed. The way an issue is framed can manipulate that emotion in favor of the argument.
Properly framing the issue has the added bonus of assisting with the writing process. By spending some time to think about the issue and its nuances, the writer becomes more familiar with the argument before significant writing has begun. A well-articulated issue also helps focus the writer and assist with large-scale organization. It can serve as a guidepost as the argument unfolds to ensure that each piece relates to the others. That said, the specific articulation of the issue might evolve as the argument develops.
Finally, it is rare that legal writing has much relevance to real life, but, as a nod to the upcoming Thanksgiving holiday when many in United States reflect on what we have to be thankful for, I will mention that framing the issue is easily applied to life. Even life’s trials, if framed differently, can be positives for which to be grateful. Some small examples– frustrated by your commute home from work? Be grateful you have work and a home. Tired of being tired? Be grateful of how productive you are. If it is natural for you to view life’s negatives as positives, tap into that skill when framing legal issues.
Nov 7 2011
Em dashes, parentheses, and commas set off parenthetical phrases in sentences. Each sets a distinct tone somewhere along the continuum of emphasis, with em dashes imparting the most emphasis to the phrase and parentheses imparting the least. Commas fall in the middle and are the most versatile of the three, minimizing interruption.
An em dash temporarily shifts the focus from the main body of the sentence and signals that the phrase contained therein is meant to further illustrate the point of the sentence and, perhaps, the paragraph. I am particularly partial to em dashes in legal writing as tools of persuasion and flow. Em dashes give the reader a moment to pause and prepare to focus on the phrase to come. If used correctly, the em dash can highlight a key concept or phrase used throughout the paragraph and help the reader draw connections leading to the conclusion. Em dashes can also be used to reemphasize a point without being repetitive. For example, the phrase contained within the em dashes in the following sentence restates the right the author is discussing and simultaneously qualifies the statutes:
It is well-established that the EPC protects the right to equal employment opportunity regardless of gender. Indeed, Title VII and the Family Medical Leave Act (“FMLA”)—two federal statutes with the goal of achieving equal employment opportunity for women—were enacted to enforce this constitutional right.
Additionally, in a sentence unavoidably long or complex, substituting commas with an em dash can eliminate confusion. Doing so also breaks up the monotony of the sentence. Take the following sentence as an example:
In both contexts, statutes—the Americans with Disabilities Act (“ADA”) and Title VII, respectively—make it an unlawful employment practice for an employer not to make reasonable accommodations, short of undue hardship, for the disabilities or religious practices of its employees.
If the em dashes were replaced with commas, the sentence would be wrought with them and might cause a reader to stumble or reread the sentence. By using an em dash, the writer also signals that the reader should take note of the specific statutes to which she refers, presumably because they are somehow relevant to the overall piece.
By contrast, parentheses are used to signify a tangential thought that is less integral to the point of the sentence, but perhaps clarifies or comments on the main body of the sentence. If the em dashes in the first example were replaced with parentheses, it would seem unimportant to the argument that Title VII and FMLA are federal statutes enacted to enforce employment rights. The reader might not pay attention to this point. Likewise, replacing the em dashes with parentheses in the second example would give the impression that the specific statutes are not necessarily important, but, perhaps, interesting.
Because parentheses usually contain tangential ideas, a temptation to use parentheses in legal writing should be carefully examined. The tangential idea contained in parentheses almost by definition has little persuasive value. Worse, it might be distracting or come off as snarky to the reader. If the idea contained in a parenthetical is important enough to be included, it probably can and should be included without parentheses so that it gets the full emphasis it deserves.
Finally, commas, the most common of these tools, seem to have an endless amount of uses. When used like em dashes or parentheses, they signal a clarification that flows smoothly from the main sentence body, to the phrase, and back to the main body again. The phrase “short of undue hardship” in the first example above illustrates this. The phrase, which qualifies an employer’s duty, deserves to be closely integrated with the sentence’s main body. Unless the writer is trying to make the point, for instance, that an employer was unduly burdened, the phrase should also not be highlighted relative to the other parts of the sentence.
Ultimately, which of these punctuation marks is used is determined by style and flow of the sentence and overall piece. It requires the writer to know what should be emphasized and deemphasized and listen carefully and critically to the writing.
Oct 24 2011
Good legal writing seamlessly carries its reader from one idea to the next, smoothly paving the way for the reader to arrive at the ultimate conclusion. One of the most important tools for carrying the reader through an argument is the transition from one sentence or paragraph to the next. Transitions serve as a subtle reminder to the reader of the idea that preceded it and signal an expansion of that idea.
I often think of transitions as the link between two train cars, connecting, not only the two cars, but the entire train. Strong transitions repeat a key word or words from the preceding sentence or paragraph and, sometimes, use a conjunction or a conjunctive phrase to join the sentences or paragraphs. For example,
. . . . The bare allegation of property damage alone was sufficient to demonstrate a potentially covered claim for “property damage” cause by “an occurrence.”
Contrary to the District Court’s holding, a potential for coverage was not foreclosed simply because the cross-complaint failed to contain any facts to show that the “property damage” was actually caused by an “occurrence.” . . .
Here, the writer repeated several key terms which serve clarity and continuity. And the use of ”contrary” signals to the reader that the new paragraph is related to the preceding one and bolsters the repetition. Using these tools allows the reader to more easily grasp the argument and prevents them from getting distracted or confused.
Without strong transitions, the reader is left to create the links from one idea to the next. Even in cases where the links are relatively apparent, the reader is disoriented and following the argument is unduly cumbersome. The extra work a reader must do to understand the argument undermines it, no matter how meritorious. Strong transitions are essential to persuasive writing because they allow a reader to arrive at the conclusion effortlessly and without distraction. Not only does this ensure that the reader understands the point, but it makes the point seem as though it is the inevitable — and, perhaps, only — conclusion.
Oct 12 2011
In the midst of writing a bench memo, I wrote the following sentence (which I have since completely changed) and struggled about whether I should use “and” or ”but”:
“In Sum, the issue before the Ninth Circuit was whether the petitioner, who was admitted into the United States at a point of entry as a lawful permanent resident and was only admitted as such because he misrepresented his status, was eligible to apply for a § 212(h) waiver.”
It occurred to me that I often have a debate with myself over the proper use of and/but. There are clear times when “and” is more appropriate, (but/and) there are clear times with “but” is more appropriate. When either one might work, it seems like my default is to use “but” without much thinking. But this choice deserves more attention because these words subtly communicate inclusion and exclusion.
“And” and “but” are conjunctions, meaning they link two clauses of a single sentence. Using “but” in some way negates or undermines the preceding clause in favor of the succeeding one. By contrast, “and” tends to convey the existence of both clauses together.
When I chose to use “and” in the above sentence, I did so because the Court ultimately concluded that the petitioner was “admitted” as defined by the statute despite the fact that the admission was substantively unlawful (as he has misrepresented his status at the time of admission). Using “and” is consistent with the Court’s holding that the term “admitted” can include substantively unlawful admissions and more accurately summarizes the decision. It also subtly leads the reader to the Court’s conclusion. Had I used “but,” it would have negated the portion of the sentence that refers to lawful admission.
Although this example is one where I was simply trying to most accurately summarize judicial precedent, it is easy to imagine how using “and” or “but” can subtly persuade. The petitioner in Sum, for example, who was arguing that his substantively unlawful admission was not an “admission” as defined by the statute, would be best served by using “but.” For example,
“Petitioner was admitted into the United States at a point of entry as a lawful permanent resident, but was only admitted as such because he misrepresented his status.”
Using “but” calls into question whether the petitioner was “admitted” as defined by the statute. Conversely, the government would have been best served by using “and.” Both are proper recitations of the facts, but they subtly convey different meanings.
Oct 7 2011
I am following up to my mention of the dichotomy between form and substance in my first post. Substance generally refers to content and form to the style of expressing content. Especially in conversation, we sometimes slack off on finding the perfect word or tone and rely on our audience to “get the gist” of what we are trying to say or “know what we mean” despite our sloppy form. We sacrifice form for substance. The sacrifice is sometimes appropriate and even preferred, particularly in those contexts where we have immediate feedback. But in writing, and especially in legal writing, sacrificing form sacrifices substance. The dichotomy between form and substance is almost nonexistent. It is sometimes easy to forget this simply by virtue of how we are taught legal writing. With a focus on paragraphs, sentence structure, and so forth, legal writing is often taught with little reference to substance. One consequence of this is that it leads to an assumption that form is not itself substance.
But meaning is gleaned from a punctuation mark, choosing one synonym over another, large-scale organization of an entire piece, and everything in between. Confusion, disagreement, and, ultimately, litigation thrive off of alternate unintended meanings — of contracts, statutes or precedent — created or exposed by sloppy form. Form determines how substance will be interpreted and, therefore, its meaning.
Ultimately, form’s goal is to clearly and accurately convey substance so that it is interpreted as its intended meaning. Of course, there is no easy or straight answer as to how to do this, in part because each writing has its own context and purpose and each writer their own personality. Perhaps it includes following all grammatical rules, avoiding passive voice, and writing short sentences. But, unfortunately, clearly and accurately conveying substance it not as simple as following basic principles. And none of these, or even all of them together, is the complete recipe for good form. Rather, it takes detailed awareness, deliberate choices, and critical editing. And practice.
Oct 3 2011
I finally realized it: I love legal writing. It took me some time to get to this point because I never thought of legal writing as something to love. After all, it always seemed like the afterthought on the law school curriculum. In my 1L year it was the course yielding the fewest credits, and, therefore, the lightest weight of all the semester’s classes. No one could rationalize prioritizing it when faced with a Contracts class that would constitute ⅓ of the semester’s weighted GPA. And, perhaps disadvantaged by the taint of first-year legal writing, the upper-level writing requirement was always viewed by my classmates and me as an empty obstacle one must overcome to graduate. _Plus, what is legal writing, anyway?_ Form devoid of any substance, that was our impression. Like most of my classmates, I went to law school for the substance. Specifically, I was there to become a public interest lawyer. Maybe I would have acknowledged that becoming a legal writer was an inevitable byproduct of attaining this goal. But it surely did not occur to me that becoming a legal writer could be a goal in itself.
Had it occurred to me, maybe I would have noticed, and embraced, my fondness for legal writing sooner. All the signs were there. I was not aware of it at the time, but I actually did prioritize legal writing during my first year. And I fulfilled my upper-level writing requirement several times over. I could not get enough. I still can’t. During my clerkship with a United States District Court Judge in New York, it was a nice perk to have a behind-the-bench view of the litigants in action before the Judge, but, for me, the abundant writing was the real highlight. After clerking, I was eager to practice law in the public interest and worked for a New York City direct legal services provider. It was great work and satisfying in many ways. But days went by without any legal writing. And I missed it. And I realized for the first time: I need a job with a fair share of legal writing because, quite simply, I love it.
I was lucky enough be offered my current position as a clerk for a Federal Appellate Judge. For the next eleven months, each day I will primarily read briefs, think about legal issues and write about them, in draft opinions or bench memos. The work places legal writing — my own and others’ — at the forefront of my awareness. I still aspire to be a public interest lawyer, but the most important aspect of what comes after this clerkship is the form rather than the substance: I want to write.
I love legal writing because of the intellectual process of artfully piecing together a puzzle for a reader, revealing with clarity a compelling argument, an inevitable conclusion, or clear terms of a relationship. It is the practice of subtly and accurately manipulating language and deliberately and cogently navigating case law. It requires logical organization, precision, and simplicity. It can never be fully mastered, which means that I can always improve.
I read about legal writing. I think about what makes good legal writing and what makes bad. I even have legal writing pet peevs and guilty pleasures. This blog will be about all that and anything else related to the subject. I hope that it becomes a platform that improves my legal writing, and a resource that informs others’ as well.