Set in Style

I’m reviewing an attorney-authored article — “In Re Bilski and Its Impact on Business Method Patents”

Here’s the intro:

The big problem with the intro is this — the reference to State Street Bank.

Why is that reference a problem?

For one thing, it’s a new topic, so it needs a new paragraph.

More than that, it throws the reader a curve. Which decision has 132 pages — In Re Bilski or State Street Bank? 

An editor might delete the reference to State Street Bank, or set it as a footnote. But more is needed.

Consider this revised intro:

It contains less than half as many words as the original. Gone, for example, is the conclusion to the intro, since it isn’t of interest to potential clients — an audience of “patent holders and applicants.”

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Be as concise as can be, because your audience consists of busy people who value their time (and expect you to value it, too). And speak directly to them (patent holders and applicants, if that’s who you’re addressing). Don’t bring up asides that might be important to people who might care about “setting a strategy for an environment.”

If you’re too busy to do that on your own, engage a skilled and experienced editor (hint, hint).

If you want to see examples of some of the most convoluted constructions as are (legally) possible, then review the The Legalese Hall of Shame, where professional attorney/author Adam Freedman, keeps a whole slew of them.

He’s always looking for more examples (hint, hint).

If you’re not a mathematician (or a math teacher), you’re not expected to recall the binomial theorem, or the quadratic formula, or what a tangent is.

And if you’re not an Englician (or English teacher), you’re not expected to recall just what is a subordinating conjuction, or a nominative absolute, or a distributive pronoun.

But if you’re an attorney (or a copywriter for a law firm), you’re expected to know the difference between a gerund and a participle. Even if you can’t define those terms, you’re expected to have a firm grasp of English grammar, and you’re expected to demonstrate it daily.

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Attorneys and copywriters are expected to write grammatically correct, complex sentences — those in which the dependent clause has some relation to the independent clause (whether that dependent clause is non-finite, or adverbial, or relative.)

Now, consider these two complex sentences, each describing the intellectual property practice group of a law firm:

Sentence #1:

Whether you are a new business looking to develop and protect an identity, an independent inventor seeking patent assistance, or an industry leader looking to maximize your research and development investment, our attorneys can help.

Sentence #2:

Whether you are facing litigation over trademark rights and ownership or you wish to obtain the maximum protection for your trademarks through registration with the United States Patent and Trademark Office, or on a more limited basis through state trademark registrations, our attorneys have extensive experience in trademark infringement litigation at the state and federal level and we have an excellent record with trouble-free trademark registrations.

Both begin with dependent clauses (in particular, adverbial clauses of condition).

The first sentence (published by Woods Fuller Shultz & Smith P.C.) is fine; the relation between the dependent clause and the main clause is clear (i.e., our IP attorneys can help you if you find yourself in this situation or that).

The second sentence (published by Best Best & Krieger LLP) isn’t fine at all; there is no relation between the dependent clause and the main clause (i.e., the firm has experienced attorneys who can do x, y, or z, and they can do that whether you need an IP attorney, you need to prove a math theorem, or you need to lower your cholesterol).

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So, why bother with this refresher on English grammar? Because it is so common to find law firm marketing materials containing sentences that begin with some dependent adverbial clause of condition that has no relation (at all) to the main clause.

If your firm produces such materials, do something about it, else potential clients will be left with the impression that your firm’s claim of a commitment to excellence is just so much hot air.

Would you like to receive honorable mention for showing Sonia Sotomayor how it’s done? If so, just rewrite this clunker so it’s crisp and clear:

The Agency is therefore precluded from undertaking such cost-benefit analysis because the [best technology available] standard represents Congress’s conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts.

That graph comes from the judge’s opinion in Engerty Corp. v. Riverkeeper, “which,” writes Stephanie Mencimer, staff reporter for Mother Jones, “questioned whether the Clean Water Act allows the Environmental Protection Agency (EPA) to use a cost-benefit analysis of technology available to reduce the impact of power plants on fish and other aquatic life.”

Mencimer recently wrote an article (“Sonia Sotomayor’s Prose Problem”) comparing Sotomayor’s writing skills to those of Antonin Scalia. Here’s the intro to Mencimer’s article (which gets the reader to wonder whether writing skills is one key quality):

As a Supreme Court nominee, Sonia Sotomayor has a lot going for her: a stellar judicial record, a Yale Law School pedigree, a compelling personal history, and more trial experience than any other sitting justice. But while she’s clearly a bright and talented lawyer, she unfortunately lacks one of the key qualities of a successful Supreme Court justice: writing skills. To put it bluntly, Sotomayor doesn’t write very well. Reporters have sort of danced around this problem. The New York Times’ Adam Liptak charitably described her opinions as models of judicial craftsmanship that are “not always a pleasure to read.”

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Legal Writing Pro, and award-winning journalist, Ross Guberman, has just about had it with people making fun of Sotomayor’s writing skills, so he’s come up with a put-up-or-shut-up solution:

To me, though, this sort of jab carries weight only if the critic (or someone else) can make the same points much more crisply and clearly than Sotomayor did. I doubt it’s as easy as the Mother Jones critic claims, so let’s resolve the matter through a competition. Revise Sotomayor’s allegedly awful sentence, and I’ll publicize the best response.

This sounds like a fantastic opportunity for some law student looking to be noticed.

What I sometimes do is this — I spot an error, and then I bring it to the author’s attention.

Sometimes, the author appreciates it and even offers me $$$ to spot further errors so others (esp. prospective clients and future employers) never see them.

Sometimes, the author ‘cops an attitude’ and asks me who the heck I think I am.

I’m amazed when it occurs, but every blue moon, or so, an author responds with an X-rated diatribe (e.g., “How dare you use my work to promote your business, you lousy ^&&(#%#@&!”)

Sometimes, I use an error as the topic of a post. As I’ve explained over and over, I attribute the error to the author. (And, as you can imagine, I never use a client’s error as the topic of a post, because my clients are right smart — they have an editor who gets rid of any errors; so, prospective clients and future employers have no chance of seeing them.)

Why identify the author (and/or publisher)?

Well . . . in some cases, I’d have to do a lot of work to replicate the error. Consider, if you will, this annual report published by Weil Gotshal. It suffers a notable production error, which is that people can’t print the darned thing.

Now . . . I could recreate that annual report to illustrate the error (and leave Weil Gotshal out of it), but then readers would be left wondering, “Why is this guy making up these errors and then explaining how to correct them? That’s nuts!”

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Yesterday, an attorney — the author of an error I discussed in a post last month — discovered that that post appeared on the first page of results of a Google search of his name. This isn’t good, since he’s job hunting just now and fears a prospective employer will be alarmed by his poor mastery of English grammar.

He asked, “Can you please edit your post to eliminate reference to me or my blog?  Not sure that would ‘fix’ the Google issue at this point, but it would make me happy.”

I’m happy to oblige. The post is gone.

The National Law Journal recently posted this article titled “Supreme Court Issues Landmark Ruling on Judicial Recusal.” Here’s the intro:

In a landmark ruling that could affect state judicial elections nationwide, the Supreme Court on Monday ruled that due process requires a state judge to recuse when a party in a case before him or her has had a “significant or disproportionate” influence on placing the judge on the court through a large campaign donation.

The problem with the intro is this — recuse, a transitive verb, has a subject (a state judge) but no object. Transitive verbs require both.

According to this entry at Wikipedia on the topic of Syntactic Ambiguity:

Syntactic ambiguity is a property of sentences which may be reasonably interpreted in more than one way, or reasonably interpreted to mean more than one thing.

Here’s an example:

The plaintiff is required to submit an affidavit setting forth at least one negligent act, error, or omission claimed to exist.

In a dispute, one side might claim that negligent modifies only act, while the other side claims it also modifies error and omission.

What strikes me is the grammatical error in the definition of syntactic ambiguity.

Can you spot the error? If not, read the post that (not which) describes one of the things that (not which) pushed Grammar Girl right over the edge.

Some very good advice to attorney-authors who want to be read and respected comes from Daniel Oppenheimer, Ph.D., professor of psychology at Princeton.

In his paper — “Consequences of erudite vernacular utilized irrespective of necessity: problems with using long words needlessly” published in the journal of Applied Cognitive Psychology — Dr. Oppenheimer reiterates what few attorney-authors can believe: readers consistently judge the writer who uses plain, clear language as more intelligent than the writer who arranges obscure terms in convoluted constructions.

And there’s some good advice for law firms that use Arial for body copy: readers judge text set in that face as being written by less intelligent authors.

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Professor Joseph Kimble — professor of law at the Thomas M. Cooley Law School — offers similar advice, specifically addressing the benefits to lawyers of writing for readers.

Yesterday, I raised this question: is it true, as Josh Camson (host of the Social Media Law Student) claims and as H. Scott Leviant (host of The Complex Litigator) denies, that Twitter can make you a better legal writer?

I raised the question, and then I demonstrated some techniques for expressing yourself without exceeding Twitter’s 140-character limit.

I’ve heard quite enough from you. What’s your point?

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I say “Yes. Learning to be clear and concise can make you a much more effective legal writer.” And that’s because of this simple rule: Time is Valuable.

The clerks and judges and attorneys who read what you write value their time, and they don’t like you to waste it, as when you give them 25 words when 12 would do just fine.

Whenever we can make 25 words do the work of 50, we halve the area in which looseness and disorganization can flourish.

– Wilson Follett, author of Follett’s Modern American Usage 

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Here’s a good exercise:

1. Dig up some brief that you wrote a while ago.
2. Open it in Microsoft Word, or any other editor.
3. Copy one sentence.
4. Record how many words it contains.
5. Cut the sentence, as much as you can.

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Get in the habit of cutting as many words as you can from your next brief. Cut it as much as you can each time you review it. The fewer words you use to say what you need to say, the more effective you are.

I guarantee it.

Never use a long word when a diminutive one will do.

– William Safire, recipient of the Presidential Medal of Freedom

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If you find it somewhere between impossible and all-too-difficult to cut any significant copy from your old briefs, consider Twittering. It’s an exercise that can help you acquire a very important skill, one you weren’t taught in law school — how to be brief and concise.