Set in Style

California Supreme Court To Decide Interplay Between Severability-of-Interests Clause And Intentional Acts Exclusion

by Patrick McKinney

Can an insurance company deny coverage to a homeowner who did nothing intentional because another insured under the policy committed a crime or intentional tort?

The first line of this article suffers from a problem that plagues us all — putting things out of place.

No doubt, the author didn’t intend because another insured . . . . to modify a homeowner.

I’m sure the author meant this:

Can an insurance company deny coverage to a homeowner because another insured committed a crime or intentional tort?

By inserting another phrase (who did nothing intentional) between the modifier and what it’s meant to modify (homeowner), it seems as if the author is asking about coverage for a homeowner who did nothing intentional because another insured committed a crime.

That’s how we first read it, and that’s because of its syntax.

Now . . . it takes a reader just an instant to realize what modifies what, but the reader shouldn’t have to go through that effort. The writer (or his editor) should make sure the readers’ job is as easy as can be, especially so in the intro.

If the reader gets the sense that an article is going to be a chore to read, he might not go past the intro. And that means the article is ineffective (i.e., you can’t influence people with what they won’t read).

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* This is one in a series of posts on how to gain and maintain a reader’s attention. In other words, how to get a return on your investment in SEO.

You’re an attorney, not a typesetter.

You’re concerned with the wording of agreements, briefs, or contracts, not the details of how those words are rendered.

But — if your goal is to persuade — you should be concerned, and that’s because appearance matters: first impressions do too.

Let me say it again — the first impression someone has of what you wrote isn’t what you wrote; it’s the appearance of it.

If you think first impressions are important and good looks are good to have, then take my advice and apply it to whatever you’re producing — a brief or a client alert.

Set Heads in Sans-Serif Type, Like This

Type can be classified as Serif or San-Serif.

Sans-Serif type doesn’t have small strokes at the end of characters.

Serif type does.

Don’t Set Body Copy in Sans-Serif Type

For the sake of your readers, set your heads in Sans-Serif type, and set your copy in Serif type, like this.

Set the Heading of the Table of Contents with One Word

The correct way to set heading of a table of contents is with just one word — Contents

Hyphenate Justified Copy

Go to a book store. Grab a new hardcover book, and look at the copy in it.

I’ll bet you the copy’s justified. In other words, each line of type is the same length.

And it’s hyphenated. Look at the ends of lines along the right margin. Every so often, a line ends with a hyphen that breaks a word in two.

If you want your copy to look as good as can be, set it justified and hyphenated. Concern yourself with the consistency of the spacing between words, and don’t set the lines too wide or narrow.

If you hope to persuade, don’t forget how helpful small courtesies can be.

Put Just One Space after a Period — Not Two

Look at hardcover books, or magazines, or newspapers, or advertisements. Look at textbooks.

What you’ll find is one space, not two, after any type of stop. Using two instead of one now appears old-fashioned.

Use an Indent or Vertical Space to Indicate a New Paragraph — Not Both

You’re still in the book store looking at those hardcover books — the ones vying to be on the New York Times Best Seller list.

Find one that strikes you as especially attractive.

What you’ll find is that the table of contents is set with one word, heads are set in sans-serif type, copy is set in serif type and it’s hyphenated and justified, there’s just one space after a period, and each paragraph begins with an indent OR a space between it and the paragraph above it.

Imitate the Pros

Just go to a book store and see how the pros (those who sell print) do it. And then imitate the ones that look best.

Postscript

If you prefer to hear this from an attorney rather than an editor, visit Matthew Butterick’s  Typography for Lawyers.

Ask any good writing instructor what’s important, and you’re likely to hear about introductions, and how critical they are to attracting readers.

That applies to blog posts published by law firms seeking clients.

Consider the intro to this blog post:

Insurance Coverage for Food Contamination Recall

by Karen Kimmey

Recalls of food believed to be contaminated can be massively expensive for the companies required to implement them, and the availability of insurance coverage for such expenses is often disputed.

One recent complaint to raise this issue is . . . .

The blog post goes on to explain a recent ruling.

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A skilled and experienced editor has two issues with this intro. Well, three issues:

1. The headline lacks a verb.
2. The copy isn’t concise.
3. The second paragraph throws readers a curve.

The Headline

A headline has a purpose, and it needs a subject AND a verb to achieve it — to give readers some idea of what happened. How else can they decide if the article’s worth reading?

The Copy

The first line starts the discussion, and it shows what the writer assumes: Busy People Have Time to Spare.

It sounds like the post might be about the availability of insurance coverage, but it’s not.

Busy people want to know, as soon as they can, whether an article’s worth reading.

The beginning of the second paragraph refers to this issue. What issue? food contamination? The expense of recalls? The availability of coverage? Disputes about availability?

The Edited Version

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Here’s the intro after it’s been touched by a skilled and experienced editor:

Insurance Coverage for Recall of Contaminated Food Disputed

by Karen Kimmey When the FDA orders a recall of food products, it can be very expensive for the companies involved, and disputes about insurance coverage can arise.

Consider the complaint recently filed . . . .

That’s better.

It uses fewer words, so it takes readers less time.

It says the topic of the post is disputes about insurance coverage, so those interested in that sort of thing can decide to continue reading.

And it makes the attorney seem like a more skilled and thoughtful writer. That can only be to her advantage, right?

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Oh! One more thing. People searching for information regarding disputes about insurance coverage are more likely to discover the edited version.

I’m marking up a disclaimer for an attorney’s blog.

The first line is a run-on:

This Blog/Web Site (“Blog”) does not provide specific legal advice, it is for educational purposes only.

I mark it up like so:

This blog does not provide specific legal advice. It is for educational purposes only.

The lawyer responds to the mark-up:

That first line was the result of an elaborate debate I cannot afford to reopen.

Huh? Who debates whether to publish an error?

If you’re an attorney — especially one who cares for the finer points of English — then you should (in my opinion) subscribe to Garner’s Usage Tip of the Day. (Click here.)

If you write to persuade and strive to improve, a subscription is like having a writer’s little treasure chest.

I subscribe, and I just looked at today’s tip, which follows up on a tip from last week about phrasal verbs.

In today’s tip, Garner offers four caveats. Here are the first two:

First, when using [a phrasal verb], include the entire phrase and not just the primary verb. Don’t say that two things “cancel each other” if what they’re really doing is “canceling each other out.”

Second, don’t use a phrasal verb if the adverbial particle is simply baggage that doesn’t add to meaning. Thus, don’t say “meet up with” if “meet” suffices. Don’t say “connect up” or “divide up” if “connect” or “divide” suffices.

I find a contradiction between them. The first says, “Expand.” The second says, “Don’t.”

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Well . . . here’s my 2¢ contribution:

As a general rule, less is more (persuasive) — the fewer words it takes to say something, the more powerful those words are. (There are quite a few exceptions to the rule, but they all serve some purpose.)

And some things cancel others. In this world, a positive cancels a negative; cold cancels heat; dark cancels light.

In mathematics, one operation cancels another. There’s no in or out about it, and it’s entirely correct to say, “These two effects cancel one another.” Out is not needed at all.

The same applies to printing. You print a page. You don’t print it in or out (even if the page came out of a printer).

OK. It’s only a space and three characters, but it’s a solid cut, and when it comes to packing your words with power, every cut counts.

I found this disclaimer at a law firm’s web site just the other day:

THE INFORMATION CONTAINED IN OUR WEB SITE DESCRIBES LEGAL MATTERS HANDLED IN THE PAST BY OUR ATTORNEYS. OF COURSE, THE RESULTS WE HAVE ACHIEVED DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH MATTER. BECAUSE EACH MATTER IS DIFFERENT, OUR PAST RESULTS CANNOT PREDICT OR GUARANTEE A SIMILAR RESULT IN THE FUTURE.

Results can’t predict results? Well of course they can’t.

Neither can most fortune tellers, but why should a law firm bother to mention it? And why do it with a grammatical error?

According to the firm’s marketing director, it’s required.

Curious, I review the Rules of Professional Conduct, published by the Virginia State Bar, which has a rule (7.2(a)(3)) that requires attorney advertisements to carry a disclaimer stating that RESULTS CANNOT PREDICT A SIMILAR RESULT!

Is Virgina trying to out do New York, which requires the following statement on attorney ads:

Prior results do not guarantee a similar outcome.

So, if you hire a New York attorney who’s won some and lost some, you can expect who-knows-what!

Consider this intro to the law firm of McAfee & Taft:

Welcome

Since our inception in 1952, McAfee & Taft has distinguished itself by being an industry leader in developing innovative legal solutions and providing aggressive representation for businesses and individuals alike.

Do you find anything wrong with that?

Well, if you’ve a critical eye like mine, you find a couple of problems, the first being a shift in point of view (from first-person to third-person). That’s no big deal, but if you want your copy set in style, you want to avoid the sort of errors that irritate 8th-grade English teachers.

The big problem is the bald claim that the firm was an industry leader in 1952.

A brand new firm with just two attorneys is an industry leader? What industry?

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Look . . . if you’re selling sugar water, hollow claims and braggadocio can be very effective. That’s been proven again and again.

But if you’re the largest law firm in Oklahoma and you’re trying to sell legal services to well educated corporate executives and counselors, using the sort of vapid claims that motivate the masses to buy Pepsi instead of Coke isn’t terribly effective, not when the target audience consists of very busy people who want substance, not puffery.

Formality — it’s honored by so many legal writing instructors and senior partners, and detested by people who need to read what attorneys write.

Verbosity is much like formality. It’s easy to conquer.

Consider the intro to this article (by Thomas L. McLain of AirWatch) about the Hart-Scott-Rodino Antitrust Improvements Act of 1976:

The Hart-Scott-Rodino Act requires notifications to be filed prior to the completion of a merger or acquisition when certain transaction size limits are met. The filing allows regulators at the Federal Trade Commission and the Department of Justice to analyze the anti-competitive effect of the deal.

Why not save readers (people who want to learn about the act [or about the author]) some time and effort by losing the formality and cutting the fat?

Now, anyone who wants to know about the Act can go to Wikipedia and read all about it, or can read the Act, or McClain’s Basic Overview of it.

Why would anyone who wants to know about the Act turn to McClain’s Basic Overview of it, rather than Wikipedia?

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Consider the phrase requires notifications to be filed. Do you know where the author got that?

Why, he got it from the Act, which is chock full of legalese like these:

file notification under this subsection, shall file notification pursuant to, completed notification required, if such notification is not completed, shall require that the notification required, a person required to file notification, comply with the notification requirement, with such notification requirement

Note the repeated use of a five-syllable noun (notification) in place of a three-syllable verb (notify).

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Consider the phrase prior to the completion of. Do you know what that means? It means eight syllables rather than two (before).

Or consider the phrase when certain transaction size limits are met. How many syllables could that be reduced to?

Look . . . syllables take time. If you can pack a whole bunch of syllables into just a few, you can save readers time, which is something they tend to value.

OK. So what would a skilled an experienced editor do with McClain’s intro to make McClain look as good in print as I’m sure he does at work?

Perhaps this:

The Hart-Scott-Rodino Act requires that parties planning certain mergers and acquisitions notify the Federal Trade Commission and the Department of Justice so regulators can analyze those deals for anti-competitive effects.

How about that?

Words and syllables cut by one third.

Ditto for the amount of time it takes to read the intro.

You might say that Marilyn Bush LeLeiko has lots of experience as a legal writing consultant: she’s been at it since 1987, and she’s helped attorneys at more than half of the top 100 AmLaw firms improve their legal writing skills.

And you might say she knows how to satisfy clients, else she could not have amassed an impressive array of testimonials from so many satisfied clients — including, but not limited to, attorneys and managing partners from some of the best known law firms, and general counsel of the largest government agencies.

If you’re an attorney and you want to improve your legal writing skills, consider Marilyn’s advice. And if you don’t think you need to improve your writing skills, think again. There’s always room for improvement.

What do judges want (or not want) to see in an attorney’s writing?

Clarity is key. Judges are very busy. They don’t want to have to read and then re-read your brief to understand your argument. If your brief requires a second reading to be understood, the judge may put it aside to see if the other side’s brief clarifies the issues. That’s not likely to result in the best outcome for your client.

Clear organization is an important element of clarity. Organize well, and make that organization clear to the judge. Put a clear summary up front and use roadmap sentences, headings, and topic sentences so that the judge (and clerk) can see where you’re heading. Start with your best argument (unless there’s a good reason not to).

Conciseness is also vital. Don’t say something twice or three times. Say it once, say it clearly, and stop.

Writing skills — just how important are they to an attorney?

It depends on the practice area and the work environment. For most attorneys, writing skills are very important. You need to communicate with your supervisor, with your client, with co-counsel and opposing counsel, and (if you’re a litigator) with the court.

Some transactional lawyers think writing skills (other than contract drafting) are not important for them, but they have to communicate effectively too. They write emails, letters, reports. Their writing (except for contracts) is usually shorter, but the demands are the same. Their readers (corporate management and in-house counsel) are impatient. These readers often don’t want to read anything longer than a single-screen email or a one-page summary. It can be a challenge to communicate clearly, given such limited time.

Consider this statement from a draft of an article authored by an attorney:

“Business associates” are individuals or entities that provide services for covered entities needing access to protected health information.

What we have here is an example of the misplaced modifier.

The modifier — needing access to protected health information — is supposed to modify business associates, but it’s too far away.

Where it is, it reads like it modifies covered entities.

When things wind up the in wrong place.

If the attorney/author was a stalwart practitioner of due diligence, she’d do what authors typically do: she’d submit her copy to an editor for review before publication.

Had she done that, the statement could have turned out like so:

“Business associates” are individuals who, or entities that, 1) provide services for covered health care providers and 2) need access to protected health information.

Or like this:

“Business associates” are those that 1) provide services to covered entities and 2) need access to protected health information.

Or  this:

“Business associates” provide services to covered entities and need access to protected health information.

Or  this:

“Business associates” are those needing access to protected health information in order to provide services to covered entities.

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An ounce of prevention is worth a pound of cure.
– Benjamin Franklin