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. 

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.

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.

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: 

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. 

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! 

SEC Chairman Christopher Cox addressed the 2007 Corporate Counsel Institute this week and emphasized the SEC’s commitment to the use of plain English.  As I have mentioned previously in this blog, the SEC has been a long-time champion of plain English and its website includes a helpful “Plain English Handbook.” 

According to Cox, the SEC will be “relentless in seeing to it that the language in which both regulation and disclosure are written is plain English.”  Cox started out by reminding the group that lawyers did not always speak legalese: 


The speech is interesting and includes diverse references to John Grisham, Oliver Wendell Holmes and Mark Twain, all of whom recognize the value of plain English. 

Thanks to the CorporateCounsel Blog. 

I have long wondered how you can avoid long sections of white space in text when you include a URL in a sentence.    Word views the URL as one word and moves it to the next line, leaving the preceding line with too much blank space.   In the past, I have tried to fix the problem with a manual line break, but nothing ever worked very well.   Eugene Volokh has a couple of suggestions to fix this.  He explains it well so read about it here. 

More on passive vs. active.   As I and many other bloggers have noted, the condemnation of passive voice has tempered somewhat and most agree that active voice is not always best.  Lynn Gaertner-Johnson at Business Writing points out that Microsoft Word can help identify passive voice in your writing.  Simply change the grammar check option to “grammar and style” rather than “grammar only.”  Then Word will alert you to the passive voice just as it alerts you to sentence fragments and misspellings. 
 

Legal Literacy has 12 rules for avoiding smoking guns.   Following these rules is probably good advice for any reason. 

In another post, Legal Literacy gives a thoughtful quote on how e-mail can often be so thoughtless: 

What?  Legal writing dull? 

I like to read tips for any kind of writing, not just legal writing, but sometimes the tips need some adjustment.   Here’s an article on “better beginnings.”  It has some good ideas, but remember your audience.    For example, the list suggests that you “Do something surprising... VERY surprising,” and “Start with something funny.”   Maybe not a great idea for a brief. 

Thanks to the nonbillable hour. 

In his Writing Tools blog, Roy Peter Clark has an interesting take on active vs. passive.  As you know, passive voice has long been criticized as being, well, too passive.  Active voice, on the other hand, is generally seen as being more powerful and persuasive.  Clark, however, points out that the two voices can be used together very effecively.  Read his example here.  This is the writing tool to remember: 

When you are trying to emphasize the victim or receiver of the action, use the passive voice. But when the subject turns to direct action, use the active voice to describe it.

    Back in June, the Fifth Circuit reversed a conviction and sentence based on the good faith exception to the exclusionary rule.  United States v. Pope, 452 F.3d 338 (5th Cir. 2006).  Judge Jolly dissented from that holding “because [he] believe[d] the Leon good-faith exception applies, because the majority opinion reflects an erroneous view of the record, and because the majority engages in appellate fact-finding.” 

    I did not read the opinions when they were first entered in June, but the dissent is mighty powerful.  So powerful that, last week, the panel majority sua sponte reconsidered the arguments made by the dissenting opinion and concluded that they were well taken.  As a result, the panel withdrew the majority opinion and the dissenting opinion and replaced them with a unanimous opinion.  I checked the docket on this appeal and not sure how the sua sponte reconsideration worked, but I am certain that Ms. Pope was not too pleased.   Not surprisingly, she has obtained an extension to file a petition for rehearing/rehearing en banc.  This should be an interesting case to follow. 

    Even if you do not practice criminal law, read Judge Jolly’s dissent.  It is well-reasoned and well-written.  It shows that plain English can be interesting and persuasive and even snappy. 

The Double-Tongued Dictionary “records undocumented or under-documented words from the fringes of English,” focusing on “slang, jargon, and other niche categories which include new, foreign, hybrid, archaic, obsolete, and rare words.”    

This week it addressed that familiar phrase “leaving [something] on the table:”   “to refrain from taking the utmost advantage of something; to not address every aspect of a situation; in the form leave money on the table, to negotiate a deal that is less financially beneficial than is expected or possible.”  The examples of use of this term show that it has some significant variations.  It can refer to the difference between the highest and next-highest bid or the failure to address an outstanding issue.  It has also been used to reference the obligation to make a contribution to society by leaving something for the next generation.  In litigation, I usually hear the term used to mean that one party accepted an offer that was lower than the other party’s settlement authority. 

Have you ever wondered what the plural form of “mouse” is.  If the “mouse” is a rodent, the answer is easy.  But what if the “mouse” is that thing that is probably under your right hand right now. 

Lynn at Business Writing has some options.  According to the American Heritage College Dictionary, both “mice” and “mouses” are correct.  The Microsoft Manual of Style for Technical Publications suggests “mouse devices,” which, as Lynn points out, does not “roll of the tongue.” 

But my favorite option is to avoid the problem altogether: 

    Device: Mouse
    Number sent for repair: 3.

This discussion about mice and mousse and mouse devices raises a larger issue that arises in all writing, especially writing that is intended to be persuasive -- what to do when the correct expression simply does not sound right.  If it does not sound right to you, it probably will probably not sound right to someone in your audience.   If your audience stops to ponder whether a particular phrase sounds right, the audience might be distracted from the more important points that you want to make.  Usually the best idea is to work around it. 

Lynn gives these as examples of sentences that are correct, but don’t sound right. 

    I have lain in the sun too long.
    Whom will you invite?

She suggests these alternatives. 

    I have been in the sun too long.
    Have you made a guest list?

Here is the word of the day from dictionary.com: 


Do you know lawyers who bloviate? 

Where do you go for questions of writing style such as grammar and punctuation?  I almost always consult the Chicago Manual of Style first, just because I have used it for many years and am familiar with the way it is organized and written.  If I still have questions, I go to Bryan Garner’s The Redbook for confirmation or just another point of view. 

Legal Writing Prof Blog lists more style guides that are available on-line. 

    * University of Colorado at Boulder Style Guide   
    * University of Kansas, University Relations Style Guide  
    * University of Montana Style Guide 
    * University of Nevada, Las Vegas, Editorial Style Guide  
    * St. Olaf College Style Guide  
    * University of Tampa Style Guide  

What is the ultimate authority in style guides?  It depends on your audience – isn’t that a lawyerly answer?  Of course, most style guides are generally consistent on major points.  As a practical matter, however, having access to a variety of style guides is useful because they explain those points in different ways and focus on different details. 

On a related point, the Chicago Manual of Style is now available on-line, with a free trial and a variety of subscription options.