As promised, here are writing tips from George Orwell. 

You are probably most familiar with George Orwell as the author of such novels as 1984 and Animal Farm, and his memoir Down and Out in Paris.

But he was also a passionate advocate for good writing.  He wrote an essay in 1946, “Politics and the English Language,” that is still instructive today.  I have mentioned this essay before, but it always bears repeating.  Read the whole essay when you get a chance, but here are some of his tips for good writing: 


And Orwell continues with these tips: 


And then Orwell has some sarcasm for those who do not follow these rules:

Copyblogger gives Hemingway's top five tips for writing well.  Suprisingly (or maybe not) the tips should also improve legal writing.  First, use short sentences.  Second, use short first paragraphs.  Third, use vigorous English.  Fourth, be positive, not negative.  Copyblogger says that Hemingway had only four rules, but he found a fifth that may be most important of all, especially to legal writing. 


Very good advice! 

Tomorrow, tips from George Orwell. 

Prawfsblawg is hosting a contest for your "favorite bad legal argument."  We could all enter that contest -- with arguments we have heard and, unfortunately, arguments that we have made.  Anyway, the entries are fascinating and somewhat educational!  Enjoy. 

And thanks to Appellate law & Practice! 

I was discussing my blog and other writing issues with friends last night.  Between sushi orders, someone asked about the use of "on accident" and "by accident."  I had never heard anyone use "on accident," and, because I always use "by accident," I assumed that was correct.  I was right, to an extent.  Unfortunately, my answer probably tells you that I am over thirty. 

The Washington State University list of Common Errors in English  states affirmatively that "on accident" is incorrect:   "Although you can do things on purpose, you do them by accident."

The Urban Dictionary also agrees with me (I think):  "on accident" is defined as the "improper usage of the phrase "by accident". Started in the United States, but it has started to spread to other countries like a plague. A terrible, terrible, grammar plague."  In case you are not familar with this site, Urban Dictionary "is a slang dictionary with your definitions."

Pain in the English addressed the issue, with many comments.  Most agreed that "on accident" is incorrect, but becoming more common.

Grammar Girl also discussed the subject.   She notes that Leslie Barrett, a professor of Linguistics at Indiana State University, wrote a paper about "on accident" and other changes in language.  "According to Barratt's study, use of the two different versions appears to be distributed by age. Whereas on accident is common in people under 35, almost no one over 40 says on accident. Most older people say by accident. It's really amazing: the study says that 'on is more prevalent under age 10, both on and by are common between the ages of 10 and 35, and by is overwhelmingly preferred by those over 35.' " Unfortunately, however, "Barratt found that there is no widespread stigma associated with saying on accident."

Tim W. at Mother Tongue Annoyances checked the OED to research the issue.  Here is what Tim said: 


So, to conclude, many people (including me) think that the use of the term "on accident" is incorrect and annoying.  Unless you want to be considered incorrect and annoying by many people, you should use "by accident."    In particular, it is probably not a good idea to argue that your client 's conduct was not intentional because it was "on accident." 

The Style and Substance blog at the Wall Street Journal lists some trite jargon that we should all avoid.  The list includes "bitter dispute," soft-spoken, whopping, key, and "going forward."  Read the post to see why some WSJ staffers dislike those terms. 

The blog also has a quiz -- find the flubs in actual sentences from the Journal. 

Evan Schaeffer at the Illinois Trial Practice blog suggests that we draft our brief before reading the other side's brief.  He asks if that "sounds nuts," and my first response is that it does.  In my practice, I am hired by lawyers to write briefs and generally am not involved in the case until the time that a brief is needed.

But there are times that I am involved in a case through discovery, dispositive motions and trial.  In those cases, I do think it is helpful to keep and regularly update an outline of my theory of the case and supporting proof.  I also try to draft an outline of the opposing party's theory of the case, noting the proof on all issues.  These outlines and Evan's tip to draft a brief before seeing the other side's papers both require lawyers to evaluate and re-evaluate their cases.  Without regular review of relative merits of the case, it would be easy to get to the end of discovery and not be prepared for trial.  Also, we all know that the strength of a case can change rapidly during discovery.  We can't advise our clients properly without evaluating the case in the context of new witnesses and new documents. 

So Evan, your tip may initially sound nuts, but it is very sound.

Ken Adams has a pop quiz for lawyers who draft contracts at his blog, AdamsDrafting.  I don't draft contracts, but I enjoy pop quizzes.  (By the way, I made a perfect score).  Here are the questions: 



Go to Ken's blog to check the answers.  Ken is a strong advocate for improving the quality of contract drafting and also for establishing a set of rules to guide contract drafting.  Even litigators (like me) can learn a lot from reading Ken's blog. 

While you are at Ken's blog, read his entry about the different cultures of deal lawyers and litigators.   Ken accurately states the general perception that litigators as being fighters and deal lawyers as being builders.  But the best litigators and the best deal lawyers find a way to do both.

You know I enjoy Grammar Girl.  Check out her brother Legal Lad.   His recent posts include discussion of the legallity of recording conversations, living wills and power of attorney, the Fifth Amendment and Filing for a Tax Extension.  Each podcast begins with a disclaimer: 


Grammar Girl is Mignon Fogarty, but I have not been able to find Legal Lad's real name. Anybody know? 

The Chicago Manual of Style accepts questions regarding the Manual and responds in a monthly Q&A section.  I saw two questions this month that may be of interest to legal writers. 


First, a question about bullets: 



Second, a question that highlights the point that, if proper construction of a sentence is awkward, you should just re-write it: 

Roy Peter Clark has a post about using space on the page when writing, "giving equal weight to the markings and the emptiness." 

Use of formatting and space certainly makes a difference in readability.  My default left and right margins are 1 1/2 inches because I think the page just looks so much better that way.  The page seems more inviting, unhurried and gracious when the words are not crammed on every possible inch of page.  I get a little agitated and anxious when I read pages that are too crowded and I sure don't want my readers to feel that way.  Also, I can change the defaults and have some extra space if I am concerned about exceeding page limitations.

Most of the “rules” for legal writing are riddled with exceptions, but here is one that is not:  write for your reader.  That means you must first determine what your reader wants, needs and expects.  A motion for summary judgment and an appellate brief may address the same issue, but they are very different because they are addressed to different readers.

Lynn Gaertner-Johnson says it this way at her Business Writing blog:  “The Only Rule Is What Works for Readers.”   She suggests that, whenever you face a writing rule that feels like an obstacle, ask yourself whether it applies to your situation and your reader.    That is also a good question for legal writers to consider. 

Harmon Wray, advocate for peace and justice, died yesterday. I had the privilege of attending church with Harmon for several years and valued his wisdom and commitment to justice.  Harmon was co-author of Beyond Prisons: A New Interfaith Paradigm for Our Failed Prison System last year.  He was also instrumental in setting up a Vanderbilt Divinity School class that meets at Riverbend Maxium Security Prison here in Nashville.

You can watch and hear Harmon in a peace video here.   In the very best Southern accent, he makes these profound statements that we should all memorize: 


Peace and justice. 

Ron Miller at the Trial Lawyer Resource Center discusses the “sponsorship” rule for direct examination.  Like Miller, I have always heard that it is better to address harmful facts in direct examination ("sponsor" them) than to let opposing counsel bring out those facts on cross.  But  Robert Klonoff and Paul Colby, in their book Sponsorship Strategy: Evidentiary Tactics for Winning Jury Trials, disagree.  According to Miller, their “theory is that you actually lose credibility by bring up your own weaknesses and that the cross examining lawyer often looks petty and nitpicking by bring up much of what you felt compelled to get out the sting of in your direct.”   

Like Miller, I agree with the “sponsorship” rule, but with some balance and common sense.  Klonoff and Colby are right that a lawyer could look “petty and nitpicking” by bringing out all the harmful facts about a witness on direct examination.  So keep in mind that you don’t have to bring out all the harmful facts on direct. 

In his post, Miller also directs readers to Personal Injury Help Center that has sample direct and cross examination outlines.  I have not reviewed the outlines enough to recommend them, but they are certainly a good place to start and get ideas.  Check them out here. 

Grammar Girl always provides helpful advice on confusing grammar issues.  She addressed the serial comma this week.  Read the post (or listen to the podcast) because she has great examples. But here is her bottom line: 


Go Grammar Girl! 

The Wall Street Journal Law blog has a post this week about a proposal to split the Ninth Circuit.  It quotes an op-ed in the Los Angeles Times by Vanderbilt Law School professor Brian Fitzpatrick: 


Fitzpatrick’s position makes sense and he is certainly not the first one to suggest that the Ninth Circuit should be split.  But I want to know why the first comment has nothing to do with the Ninth Circuit, but rather a warped comparison of California and Tennessee? 

Almost every complaint I read includes language incorporating all factual allegations into each count.  You know the language – it’s the first sentence of each count and states something along the lines that “Plaintiff incorporates the allegations contained in the preceding paragraphs.” Have you ever wondered if that language is really necessary?  Wonder no more.  It saved a plaintiff’s claim in a recent Fourth Circuit opinion. 

In Adkins v. Crown Auto Inc., 2007 U.S. App. LEXIS 11630 (4th Cir. May 18, 2007), the plaintiff bought a car that had been “clipped” together from remnants of two separate wrecked vehicles.  (You learn so much as a lawyer!)  The two separate wrecked vehicles had different mileages.  Under Virginia law, however, the title of a “clipped” car includes only the total mileage of the front half of the vehicle.  In the Statement of Facts in her complaint, the plaintiff alleged, among other things, that the seller failed to disclose that the vehicle was in fact two cars that had been poor welded together and had suffered severe damage.  Under the heading of “Actual Fraud,” the plaintiff incorporated all of the preceding allegations and also alleged that the seller made false representations about the true mileage of the vehicle and that she relied on these false representations. 

At trial, the seller argued that the plaintiff’s fraud claim was based solely on the mileage issue and not on any representations about the clipping.  The district court and the Fourth Circuit rejected this argument because the allegations in the “Actual Fraud” section, together with the other allegations in the Statement of Facts that were incorporated by reference, sufficiently stated a claim of fraud under the mileage-and-clipping theory. 

What do we learn from this interesting case?  First, that language incorporating the preceding allegations of the complaint is useful and should probably be included in every complaint.  Second, when you are defending a fraud claim, always ask the plaintiff (in interrogatories and in depositions) to list and explain the specific misrepresentations on which she is relying.  Third, pull out the complaint every once in a while and review it.  Especially after some discovery, Plaintiffs may see a need to amend and defendants may see new defenses. 

I read about this case in another blog and cannot remember which one. So thanks to someone and apologies for not remembering who! 

The next time someone criticizes legal writing, just point to the writers who create assembly instructions.  That is where the Plain English movement would do some good.  Read Mark Liberman’s post today at Language Log about the lack of determiners in assembly instructions. 

Benjamin Zimmer also has an interesting post at Language Log, dissecting the Bill of Rights grammatically.  His discussion of the word “to” “pulling double-duty: first as a preposition, then as an infinitive marker” helped clarify an issue that I often see in legal writing.  When you use a clause to introduce a list of items, you may sometimes be uncertain whether the “to” goes in the introductory clause or in each of the items.  Benjamin’s example is New York’s Taxicab Rider’s Bill of Rights:



Benjamin’s marked-up version would go like this: 


Read his entire post.  Understanding the dual use of hte word "to" can help avoid some confusion in any writing.

Above the Law has an interesting post about a law student’s experience at a law firm’s recruiting event.  The student was offended by a partner and sent an email to the law firm. The student then circulated the email to her friends and the email is now on at least one list serve. 

You can read the email at Above the Law and should also read the comments.  Most of the comments suggest that the student was naïve and overly sensitive.   The email and comments reminded me that I have lost the idealism and righteous indignation of law school.  I generally think that means I have matured, etc., but some idealism is not such a bad thing. 

We lawyers brag/complain that the law is very complicated, but Professor G. Robert Blakey has put in one page, part-outline, part-artwork.  You can see the product here – it’s brilliant!