Tips on writing readable documents well
By Jeffrey Schoenberger
The lawyers I know like to read and write. The profession attracts folks who like researching and writing, hence the outsized number of humanities majors in our ranks. One of my favorite quotes is the apocryphal Mark Twain quote: “I didn’t have time to write you a short letter, so I wrote you a long one.” Were it a TV series, the quote would be described as “based on true events” rather than a genuine quotation. But the phrase and its sentiment go back much farther than Twain in 1871. Henry David Thoreau had a version in 1857: “Not that the story need be long, but it will take a long while to make it short.” Ben Franklin and John Locke also had their own versions. The oldest provable attribution comes from French mathematician and philosopher Blaise Pascal in 1657, who wrote, “I have made this longer than usual because I have not had time to make it shorter.”
As harried legal professionals, we know that speed tends to produce errors and verbosity. Great minds throughout history felt this problem. There is no writer who would not benefit from an editor and no writing that would not benefit from tighter phrasing or the removal of redundant and duplicative words (see what I did there).
Therefore, with all the humility I can muster as a writer, here are some suggestions to improve your legal writing.
Be Concise: Active verbs are your friends here.
Don’t write: “Defendant is guilty because of the fact that he stole the coat.” Instead write: “Defendant is guilty because he stole the coat.”
Don’t write: “It is undisputed that defendant trespassed.” Instead write: “No one disputes that defendant trespassed.”
Don’t write: “Tim was bitten by Sally’s dog.” Instead write: “Sally’s dog bit Tim.”
Coupled Synonyms: The Norman Conquest is long past.
Years ago, I took a CLE from Hamilton County Ohio Judge Mark Painter, who wrote two books on legal writing: “Write Well" and “The Legal Writer.” He walked attendees through the origin of coupled synonyms, phrases like “free and clear.” The historical reason for the coupling was one adjective was English and the other French. If you want to continue for history’s sake, that’s fine, but the coupled synonyms are unnecessary and have no unique legal effect.
Don’t write: “Last Will and Testament.” Instead write: “Will.”
Don’t write: “Ordered and decreed.” Instead write: “Ordered.”
Lists: They deserve numbers or bullet points.
Lawyers have a tendency to write lists in paragraph format. For example: “Recipient may dispose of the property by: 1) giving it to her descendants; 2) donating it to charity; or 3) selling it at auction.” Such paragraph-encased lists are not easy to spot when skimming documents.
Instead write: “Recipient may dispose of the property by:
1) giving it to her descendants;
2) donating it to charity; or
3) selling it at auction.
Break long sentences into numbered, lettered, or bullet-pointed lists. Lists are easiest to read when each item is on its own line. When listing things, use parallel structure — each item in the list should start with the same form of speech (such as a noun or verb).
Use Names: Nouns are people too.
Replace legal labels (Plaintiff, Defendant, Lessor, Lessee, etc.) with names. Good writing is about telling a story, and stories use names.
Don’t write: “Defendant sold Plaintiff a defective toaster.” Instead write: “Big Box Co. sold Smith a defective toaster.”
However, it is fine to use legal labels when discussing other cases or referring to classes of people. In this situation, generic legal labels reduce confusion by not introducing additional actors with “bit parts” in your story.
Don’t write: “Big Box Co. sold Smith a defective toaster. Big Box Co.’s action violates §6 of the act. This court, in Thompson v. Giant Retailer, where Giant Retailer sold George Thompson three defective appliances, held that toasters are covered under §6.”
Instead write: “Big Box Co. sold Smith a defective toaster. Big Box Co.’s action violates §6 of the act. This court previously held that §6 covers a retailer’s sale of a defective toaster.” Thompson v. Giant Retailer, 123 S.W.3d 456 (Mo. 2021).
As an aside, I incline toward putting citations in footnotes rather than in line with paragraph text. I think paragraphs are more readable without the citations. Certain courts may dictate where citations appear.
More Power: Add grammar tech to your writing arsenal.
Microsoft Word's grammar checker has improved significantly. If you previously turned it off, turn it back on and see what it catches.
To activate Microsoft Word’s grammar checker on Windows: click on Options under Word’s File menu. On the Proofing page, check the box to mark grammar errors as you type.
On macOS: Click on Word menu, then Preferences, and then Spelling & Grammar. Under Grammar, check the box to mark grammar errors as you type.
Microsoft also offers the Microsoft Editor, a writing assistant that works in Google’s Chrome and Microsoft’s Edge web browsers. While Word’s grammar checker is limited to one application, the Microsoft Editor helps improve your writing on any webpage. The free version checks just spelling and grammar. If you subscribe to a Microsoft 365 plan, the Editor also checks your browser-based writing for clarity, conciseness, formality, repetition, and punctuation. If you’re a Microsoft 365 customer, it’s free, so give it a try.
A great non-Microsoft tool, with a devoted following, is Grammarly. It functions similarly to Editor but works not only in Word (via a plugin) and your browser, but also has iOS and Android keyboards (Grammar suggestions at your fingertips!). It also has a full desktop app in case you write in a program other than Word. Grammarly has a free version with the same features and limitations as the free Editor. Paid versions of Grammarly start at $11.66/mo.
Missouri Bar members also save 10% on any Wordrake subscription by using code MOBAR at checkout. Wordrake is an editing system for Microsoft Word and Outlook.
Ready to Learn More
See the new whitepaper, A Lawyer’s Guide to Writing Well, on the state bar’s practice management site for additional details. If a lawyer has questions or wants to do a deeper dive into writing and grammar software, schedule a free consultation with an expert or send an email to mobarlpm@affinityconsulting.com.