"Of" thee I sing

Today, for a limited time only, I am selling my Curiously Strong All Purpose Prose Revivifying Tonic. OK, I am giving it away. But it has all the trappings of a good patent medicine. It goes down easy and it promises tremendous results. Unlike patent medicines, my “tonic”—actually, an editing tip—actually works.

Here it is: Step One: When you are “finished” writing a brief or memo, do a word search for “of.” Step Two: Reword the sentence in which “of” appears, eliminating the term if possible. Step Three: Rinse and repeat as needed.

There is nothing intrinsically wrong with the word “of.” But its overuse is a hallmark of poor writing. In his excellent Dictionary of Modern Legal Usage, Bryan Garner observes that “the word of is, in anything other than small doses, among the surest indications of flabby writing.” He claims that “reducing the ofs by 50 percent or so can, even at the sentence level, greatly improve the briskness and readability of the prose.”

Garner is right. Obvious examples of of-flabbification are sentences with multiple “of” clauses, like “Plaintiff is the father of the husband of the daughter of the decedent.” These sentences strain the mental processing capacity of most readers. Much better to say, “Plaintiff is the decedent’s daughter’s father-in-law.” Better yet, break the concept into two sentences. “Decedent’s daughter Jill married Jack. Jack is Plaintiff’s son.” It is a recipe for confusion to string together several “of” clauses in a row. Searching for “of” will identify these turbid constructions.

Less egregious “of” clauses also benefit from rewording. Often they contain nominalizations (see previous blog entry). For example; “This was a violation of the contractual provision governing early termination.” Here, “violation” is the nominalization that needs reworking. A far better way to phrase the sentence is “This violated the contract’s early-termination provision.” Using the search function to look for “of” helps you spot these hidden verbs, which may not otherwise jump out during an edit.

Why do writers overuse “of”? I can think of three possible reasons. First, during the writing process, we tend to envision the thing being modified—not its qualifiers and caveats. So when we discuss “The president of Brazil,” we have in mind the person, not the country. Thus, when writing, we lead with the person and follow with the qualifiers about the country. We start with “president,” and complete the thought with “of Brazil.” Second, many writers are timid about punctuating possessives. So instead of writing “the owners’ obligation,” they write, “the obligation of the owners.” This avoids the rule regarding plural possessives, of course. But it also retards the flow of the prose. Third, many writers do not know how to use phrasal adjectives effectively. So instead of saying “the implied-consent doctrine,” they write “the doctrine of implied consent.”

Next time you think you are done with a document, search for all instances of “of” and see how many you can eliminate. This little Revivifying Tonic will add sparkle and shine to even the most tedious brief or memo. And it is backed by a 100% money-back guarantee.

Discontinuous Selection

One of the handiest selection tools in Word is also one of the least used: the “discontinuous selection.” Suppose, for example, a paragraph contains five items that need to be formatted identically—e.g., case names—but that are not adjacent to each other.

One way of going about this is selecting each item and applying the appropriate formatting individually. But wouldn’t it be great if you could select all these words at one time and then apply the formatting to them in a single step?

You can. To do this, (1) select the first block of text, (2) holding down the Ctrl key, select the next block of text, (3) make additional selections, if necessary, by repeating step (2) and (4) apply formatting. (Make sure that the Ctrl button is not pressed down before you make your first selection. Otherwise, you will end up selecting the entire sentence.)

The trick also works for cutting and pasting, though there a couple of things to look out for. First, the order in which Word pastes the items depends on the order in which you selected them. So if you select “1,” then “3,” then “2,” Word will paste the items in that order, regardless of the order in which they appear in the document. Second, Word inserts a paragraph mark (hard return) between the items, which may or may not be desired.

Discontinuous selection is a great tool, which also works in other Office programs and many other Windows programs. It is so useful, and so easy, that you will kick yourself for not having discovered it earlier.

Nominalization and Its Discontents

Lawyers know how to kill good prose.  Whether through passive voice, unnecessary jargon, pointless abbreviation, or poor organization, lawyers can turn the most compelling human drama into the verbal equivalent of Nytol.

One of the most powerful tools in this soporific arsenal is “nominalization”—i.e., transforming a verb into a noun.  In legal prose, people don’t “act,” they take “actions.”  Lawyers don’t “object,” they make “objections.”  Their clients don’t “admit,” they make “admissions.”  And judges don’t “decide,” they render “decisions.”  Yawn.

Language maven Bryan Garner calls these words “buried verbs.”  The metaphor is apt, as nominalization is the death of readable prose.  Transforming a verb into a noun kills the action, fossilizing the word into a static noun.  This bores the reader. 

Nominalization takes many forms.  It most often occurs with suffixes like “-tion,” “-ence,” or “-ment.” But sometimes it can be a silent killer, with the verb form closely resembling the noun form (e.g., “search” and “search” in the example below).  And other times it is a shape-shifter, with the nominalization looking different from the buried verb (e.g., “steal” and “theft”).

Where possible, it is almost always better to free a verb from its nominalization tomb.  Doing so will shorten a sentence, which—other things being equal—is always a good thing.  But eliminating nominalizations does more than that.  It gives sentences a conventional syntax: subject, verb, and object.  It is much easier to read that “Jack sued Jill” than it is to read that “Jack brought a lawsuit against Jill.”

Here are some examples to illustrate the point:

Before:       The contract provided for indemnification of the contractor by the subcontractor.

After:         The contract required the subcontractor to indemnify the contractor.

Before:       The police conducted a thorough search of the premises, but found no contraband.

After:         The police thoroughly searched the premises, but found no contraband.

Before:       The computation of damages by the plaintiff’s expert failed to include a reduction of future lost earnings to present value.

After:         In computing damages, Plaintiff’s expert failed to reduce future lost earnings to present value.

There are, however, occasions where nominalization serves a valuable purpose.  Legal writing often needs to discuss actions or events abstractly and succinctly.  It would be pointless in a criminal appeal to rewrite “Jack had three prior convictions” as “Three courts previously convicted Jack.”  And how would you rewrite a pithy aphorism like “Necessity is the mother of invention”?  Even the term “nominalization” is a useful nominalization, as it packages a concept in a readily discussable form.

Thus, eliminating nominalizations should be a rebuttable presumption, not an absolute rule.  If, after analyzing a sentence, you can articulate a good reason for retaining the nominalization, by all means keep it in.  But you will find that eliminating unnecessary nominalizations will liven even the deadest of legal documents.

The Nonbreaking Space

I thought I would “break” in my blog with an easy, practical, tip: Use the “nonbreaking space” symbol to prevent citations from being broken up across lines of text.

Here is the problem. Proper citation form requires you to place a space after a “§” and the number of the section: like § 1332, not §1332. Bluebook, R. 6.2(c).  But if you use a regular space to separate them, Word treats the section symbol and the section number as two separate words. So if the section symbol appears at the end of a line of text, the number will appear on the next line of text.

The "nonbreaking space" solves this problem. It "sticks" the section symbol to the section number and prevents them from being separated.  There are two ways of inserting it.

The hard way is to use the menus: select insert-->symbol, select the "Special Characters" tab, and then select the "Nonbreaking Space" item. The space looks like any other space, but will keep the § with the reference.  (If you use the "Show ¶" option, the space will appear as a little circle rather than a dot.)

The far better way to do this is to use the keyboard shortcut: Ctrl+Shift+Space. Every lawyer, paralegal, and legal secretary should know this key combination by heart. Yet every day, I see finished legal documents with a "¶" or "§" separated from the number reference. It looks sloppy and unprofessional. And now you have no excuse . . .

Word up!

Welcome to “Word of Law,” my legal-writing blog. This inaugural post explains the blog’s scope and intended purpose.

Why write another legal-writing blog?

Honestly, because I want to. I enjoy writing, I enjoy tinkering with the word processor, and thought it would be fun to have an audience for my ruminations--even if it only is my future self looking back on old posts. I don’t get paid for this, and I do it at the expense of other interests. As soon as it becomes a chore, I will stop.

Why should I listen to you?

I probably draft a hundred briefs a year--ranging from 3-4 pagers to full-blown appellate briefs. I read three times that many. So I have had the chance to make just about every screw-up imaginable in a brief. For those few errors that I have not personally committed, I have seen them countless time in others’ briefs.

This has given me both gray hair and experience. I have not figured out a magical way to write the perfect brief, but I know the myriad ways that legal writing can go wrong. And I even have some ideas about what makes for a good brief or memo.

But don’t take my word for it. Read the posts, try out the ideas, and see if they work for you. If they don’t, then move along. It will not offend me.

For whom is the blog intended?

This blog is intended to be collection of practical—and non-obvious—observations about drafting briefs and memos. My target audience is a first- or second-year civil-litigation associate. This will be the image I conjure up in my head when drafting posts. I want it to be the sort of resource to which I would have turned when I was a beginning lawyer.

That said, most of the posts will be relevant and accessible to other lawyers, to paralegals, to legal secretaries, and even to persons outside the field. You needn’t have a bar number to view the posts.

Who are you?

I am a junior partner at LeClairRyan, a mid- to large-sized firm based in Richmond, Virginia. My practice area focuses on dispositive motions and appellate work. I do a LOT of writing, for courts all over the country.

I live in Roanoke, which is a mid-sized city along the Blue Ridge in western (not West!) Virginia. I have a wife and four kids. I have wide-ranging interests, including astronomy, photography, history, biology, philosophy, and origami. I do a LOT of reading.

Ha Ha! I caught you making a grammatical error! And you’re “Mr. Word of Law”!

Let me get this one out of the way early. As my wife constantly reminds me, I do not have perfect grammar. I am not a perfect writer. And I probably will violate every usage/grammar/style precept that I advocate in these posts, even in the very posts that describe them. Feel free to remind me of this—but do so diplomatically, please. Just because I am writing about writing, don’t expect the writing to be prefect.