Advanced Writing for Lawyers™

by Gary Kinder

©2006 Gary Kinder Patent Pending

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Advanced Writing for Lawyers™

by Gary Kinder

Copyright 2006 Gary Kinder Registered with the United States Copyright Office

the Library of Congress No part of this workbook may be reproduced or used in any manner

without permission of the copyright holder. Patent Pending

The following are trademarks of Gary Kinder: Advanced Writing for Lawyers

Power Editing

Kinder Legal 5403 Ivanhoe Place NE Seattle, WA 98105 Phone: 206­517­5999 Fax: 206­517­5993 gary@kinderlegal.com

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Table of Contents

POWER EDITING™

Welcome……………………..………………………………………..…4

The Power Editing Series…..………………………..……………...……5

Power Editing Part I…………………………………………………...…6 Redundancies………………………………………………8 Junk Words……………………………………………...…9 Junk Phrases…………………………………………..….10 Clichés………………………………………………..…..11 Lawyerisms…………………………………………...…..12 Exercises Part I………………………………………..….13

Power Editing Part II………………………………………………..…..17 Passive Voice………………………………………….…17 Nominalizations………………………………………….18 Exercises Part II………………………………………….19 Passive Voice & Nominalizations in Contracts………….21 Exercises Part II (continued)……………………………..22

Power Editing Part III………………………..……………………..…..24 Negatives………………………………………………...24 Interruptions……………………………………………...24 Repetition………………………………………………...25 Sentence Length………………………………………….25 Hiding the Important Point……………………………….26 Exercises Part III…………………………………………27

Editing Checklist…………………………………………………….....29 About Gary Kinder…………………………………………………..…30

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WELCOME . . .

. . . to the ABA’s interactive CLE, Advanced Writing for Lawyers, the finest instruction you can receive in the most important skill you can possess. I can’t guarantee results, but I can promise you this: No matter how well you write, when you venture into the series, you will discover ideas and techniques for improving your writing beyond what you thought possible.

I have designed the course and the exercises to be not only challenging, but also enjoyable; and I give you immediate feedback. In Part I I show you how to get rid of useless words, dull phrasing, and convoluted structure, to leave your writing clean and crisp and faster paced.

Since 1988, I have taught lawyers around the country how to refine and enhance their writing. I use the same ideas when I consult on cases and write books of narrative nonfiction. They work, and when you’ve tried them, you will see how much more effective you can be.

One suggestion: I have arranged the presentations sequentially; I urge you to follow the sequence, at least the first time.

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POWER EDITING™

In this series, I show you how to make your writing more readable by tossing the junk, invigorating your sentences, and arranging those sentences for forward movement. Think of it as streamlining.

I don’t waste your time talking about grammar; you already know how to write grammatically. The problem is, grammatical doesn’t mean good. Useless and dull words often inhabit our grammatical sentences, and they’re right in front of us, but we can’t see them, I give you specific clues that will help you spot many of these words.

Once we get the junk out of our grammatical sentences and enliven them, we still have to clear away other obstacles that frequently impede our readers. I describe them for you and show you how to untangle them, so the reader can move quickly through what you have written.

We start slowly; I explain the tips simply, illustrate them graphically, then let you take over. I have designed the exercises to become more challenging as we gain momentum.

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POWER EDITING™

PART I: Clear & Concise Getting Rid of Junk

Our writing abounds in unnecessary words that the tired eyes and weary minds of judges, clerks, and clients must sort out before they understand us. If we want these readers to look favorably upon our writing, our case, and us, we must lighten their load. It starts with this concept: A word’s job is to convey meaning; if a word is not conveying meaning, it’s not doing it’s job; if it’s not doing its job, it’s getting in the way of the words that are trying to do their jobs. There is no middle ground. We’re never going to catch them all, and we’ll sometimes debate about the necessity of, or our preferrence for, others; but the essence of good writing is this: Every word that is not working must come out.

You can spot a large percentage of junk words by using the four simple tips I illustrate at the site. When you finish, you will know how to reduce the following paragraph from 104 words to about 60. It was written by a federal judge who labored for a long while to refine it as you see it here. Fortunately, the judge has a thick skin and a sense of humor, and he agreed to let me use it so we all can learn.

It is no secret that, from the standpoint of client interests, modern litigation is an outright disaster. The costs of adversary litigation have become so disproportionate to the benefits, that a trial of the merits of a lawsuit provides virtually no possibility of justice. The verdict comes too late, and the expense is too high. In practice, litigation is capable of producing justice only by agreement, and only when the agreement is reached early in the case. For this to become the norm, however, rather than the rare exception, will require basic changes in attitude on the part of everyone involved in the system.

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Try to edit it now, and see how you do; then try again later at the site, after I’ve explained the four tips to help you see the problems.

A note about style: A hundred lawyers could each write a paragraph describing the same horse in the same pasture. We’d have a hundred paragraphs; although each would be different, each could be perfect, even though some might be longer than others. Our writing styles dictate the difference. But we all can follow the same approach to refine that individual style.

To start the refining, let me show you five kinds of words that work nary a lick, yet show up every payday with their hand out. We need to get rid of them.

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Redundancies

Don’t confuse redundancy with repetition. A redundancy modifies another word. Although a redundancy is repetitious, the repetition occurs as the redundancy repeats the essence of the word it modifies, making it superfluous.

For example:

true facts binding contract brief overview short synopsis mandatory requirement excess verbiage patently obvious actively engaged expressly mandated

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Junk Words

We put words in our sentences to do a job, which is convey meaning. If they are not doing their job, they need to come out, because they are getting in the way of the words that are trying to do their job. With all of those extra words standing around doing nothing, the reader has to work harder to find the meaning.

For example:

clear, clearly express, expressly inherent, inherently steadfast, steadfastly purposes simple, simply necessary totally undertake just very quite specifically respective squarely duly essentially basically evidently currently any directly personally actually merely just given apparently incurred applicable really individual sometime

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Junk Phrases

Many lawyers would sooner appear naked before a judge than write, “If the plaintiff must pay . . . .” They feel less vulnerable hiding behind a bit more pomposity and a lot more verbiage. So they write, “In the event the plaintiff is forced to incur the cost . . . .” The common notion is that these additional words add gravity. Additional words do not add gravity – they add additional words.

For example:

question at issue with respect to with certain knowledge by the clear language of whether or not to the extent possible purports to rely has no bearing on this case appears to have no relevance decline to accept reason why at the time incur the cost is indebted to at all among other things briefly stated no doubt desires to obtain the evidence indicates that the fact that for all practical purposes

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Clichés

In casual conversation, we sometimes speak in clichés because we can connect quickly, but even in conversation, if we hear clichés too often, we think, “This guy’s an idiot.” On paper, that impression comes quicker and more often. To wit: “The plaintiff is barking up the wrong tree.” I don’t know if that cliché comes from someone herding a posse of dogs after a fox or a racoon, but the first person to use it as a metaphor to describe someone whose energy is headed in the wrong direction must have been a clever sort. At its origin a cliché is clever (that’s why everybody started repeating it, and that’s how it became a cliché). But we didn’t think of it, and it’s been uttered billions of times between then and now, so coming from us it sounds tired, trite, hackneyed, and like we’re not capable of expressing ourselves without borrowing from someone else. That’s okay if we’re teenagers and still trying things on, but it doesn’t sound right coming from an intelligent adult, especially in writing, especially a lawyer, especially in briefs, from which a Ninth Circuit judge plucked the following:

For example:

the bottom line tip of the iceberg open Pandora’s box the whole ball of wax catch­22 situation back to the drawing board the best of all worlds a disaster area out of the blue get off his back state of the art high and dry avoid like the plague hit the nail on the head few and far between the forest for the trees

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LAWYERISMS

These are little hangovers from the carefree days of serfs, seisin, and the Rule Against Perpetuities. Judges and clients suffer the headache. Almost everybody agrees we can get rid of these words (even in contracts), but far too many remain.

For example:

pursuant to hereby per herein said herewith aforementioined hereinafter ab initio heretofore inter alia therein on or about thereof by and between thereby in and to therefrom full and complete therewith suffer or incur thereinafter any and all theretofore aforesaid wherein set forth whereof arguendo

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EXERCISES

In Parts I, II, and III, you will learn fast, efficient ways to make your sentences lean (not necessarily short), quick to read, and easy to comprehend. I realize that improving one sentence will make no difference in the impression we create with a client or judge, but multiply each improvement by 50 or 100, maybe 200 or 300, the number of sentences in our brief or memorandum, and it can make a great difference, sometimes the difference between winning and losing (clients and cases).

Part I Exercises

Part I shows you how to spot the junk in your writing, so you can turn the following examples into the rewrites I suggest.

1) Considering all of the evidence, it was within the province of the trial judge to conclude that the plaintiff’s speed contributed to the accident.

Considering all of the evidence, the judge could conclude that the plaintiff’s speed contributed to the accident.

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2) The Court has the authority to determine the issue and should do so here in an effort to avoid further and protracted litigation below.

The Court has the authority to determine the issue and should do so to avoid further [protracted] litigation.

3) The Court of Appeals in this cause on the first appeal, in which Thornton prevailed, determined that usury had occurred in this cause and remanded the case to the Trial Court.

On the first appeal, the court determined that usury had occurred and remanded the case.

4) Each defendant shall have 10 days in which to file a reply to plaintiffs’ response. Unless by leave of the court, no reply shall exceed 10 pages in length.

Each defendant shall have 10 days to reply, and no reply shall exceed 10 pages.

5) It is important to note that plaintiff uses these allegations to support its claim for tortious interference with a business contract. In order to succeed on this tort, plaintiff must prove . . . .

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Plaintiff uses these allegations to support its claim for tortious interference with a business contract. To succeed, plaintiff must prove . . . .

6) In its complaint, plaintiff alleges broad, overreaching, and extensive tortious conduct on behalf of defendant.

Plaintiff alleges extensive tortious conduct.

7) Unlike the plaintiffs’ requests in Atlanta Housing Authority, all of defendant’s items requested in its Production of Documents are relevant to this lawsuit.

Unlike the plaintiffs’ requests in Atlanta Housing Authority, all of defendant’s requests are relevant.

8) There is nothing in the language of Proposition 65 or its legislative history to indicate that such duty exists, and we do not believe such duty should be inferred from the statutory language.

Nothing in Proposition 65 or its legislative history indicates such duty, nor should it be inferred.

9) It should be noted that an oral notice of intent to renew, where a written notice

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is required under the terms of the lease, is sufficient to constitute an effective exercise of the option.

Even where the lease requires written notice, an oral notice of intent to renew exercises the option.

Or:

An oral notice of intent to renew exercises an option, even where the lease requires the notice to be written.

Or even something like:

Oral notice exercises an option, even if the lease says it must be written.

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POWER EDITING™

PART II: Bright & Lively Awakening the Sentence

After we toss the deadbeat words, we sometimes have to poke at the ones left to keep them stepping lively. If we’re not vigilant, they start slouching and shuffling. This happens two ways:

Passive Voice:

We are all sick of hearing that we shouldn’t write in the passive voice. We are sick of it because we are told constantly not to do it, and we are told constantly not to do it because passive voice unnecessarily slows and dulls our writing. It is a tool for us to use when we need it, and to avoid when we don’t. Using passive voice should be a conscious decision – I need to do this, and writing in the passive helps me do it – rather than something we do because we don’t know better.

We need to use the passive voice in only four situations: unless we find ourselves in one of those situations, we always write in the active. At the site I show you how to recognize passive voice quickly every time it appears. I also explain and illustrate the four situations in which we leave a verb passive.

Nominalizations:

Few of us have even heard this word, yet nominalizations slow and dull our sentences as much as passive voice. A nominalization is a noun that should be a verb. We lawyers often write with nominalizations, because subconscious­

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ly we think it makes us sound smarter; to the reader, we sound dull. So instead of having the court “issue a ruling” or a party “bring a motion,” let the judge “rule” and the party “move.”

As with passive voice, sometimes we use nominalizations, but we use them only for specific reasons, not because we don’t know better. To learn more about nominalizations, how to recognize them, and how to convert them back into verbs, visit the site.

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Part II Exercises

In Part II, you will learn how to enliven your sentences by getting rid of passive verbs and nominalizations, so you can recast sentences as I suggest below.

1) The public policy underlying the collateral source rule is discussed in numerous California cases.

Numerous California cases discuss the public policy underlying the collateral source rule.

2) Plaintiff’s proposal is an attempt to shift the burden.

In its proposal, plaintiff attempts to shift the burden.

or:

Plaintiff attempts to shift the burden.

3) The court made no assignment of error or other reference to this item.

The court did not assign error or otherwise refer to this item.

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4) By applying for the permit, Arnofsky was in violation of state licensing laws.

By applying for the permit, Arnofsky violated state licensing laws.

5) To bring about just and informed decisions, evidentiary and procedural rules have been established by tribunals to permit the inclusion of relevant evidence and argument and the exclusion of all other considerations.

To bring about just and informed decisions, tribunals have established evidentiary and procedural rules to permit only relevant evidence and argument.

or:

To bring about just and informed decisions, evidentiary and procedural rules have been established to permit only relevant evidence and argument.

6) However, the issue of fraud was not raised by the mother at the time the motion to vacate was made, nor was an exception raised to the trial court’s decision denying her motion.

However, when she moved to vacate, the mother did not allege fraud; when the court denied her motion, she did not object.

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Passive Voice and Nominalizations in Contracts

Transactional lawyers hesitate to part with the sacred language of contracts, and for good reason: Hundreds of courts have interpreted that language. But remember that only some of our contract language has legal implications; much of it is poor writing that has nothing to do with the law. Passive voice should not appear in a contract unless you want to hide the actor, or you do not care who does the act. Otherwise, passive voice serves no purpose. To reduce the size and enhance the readability of our contracts (for our clients’ sake), we can make passive verbs active and turn nominalizations into strong verbs without risking additional exposure. We don’t have to write: “. . . with respect to the acquisition of rights and personal services. . . .” We can write “. . . to acquire rights and personal services . . . .”

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Part II Exercises (continued)

After we convert passive voice to active and nominalizations to verbs in the following contract language, note how much smoother and easier to understand that language becomes:

7) Payments. All Partial Payments and any other payments to be made by Borrower pursuant to this Agreement shall be made by wire transfer, cashier’s check or other immediately available funds. Each Partial Payment shall be applied first to . . . .

Payments. Borrower shall make all of its Partial Payments and any other payments [under this Agreement] by immediately available funds. Lendor shall apply any Partial Payment first to . . . .

8) . . . upon commencement of the terms of this Lease as set forth herein.

. . . when this Lease commences.

9) . . . upon the occurrence of any of the following events:

. . . if any of the following occurs:

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10) (c) All necessary corporate action and approvals on the part of Seller and

Buyer approving and adopting this Agreement and approving the transactions contemplated hereby, including but not limited to approvals under canon law, shall have been taken. All necessary action on the part of Affiliates of Seller shall have been taken or accomplished.

(c) Seller, Buyer, and each Affiliate of Seller shall each have taken all corporate action necessary to approve this Agreement and the transactions in this Agreement, including but not limited to action necessary under canon law.

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POWER EDITING™

PART III: Fast & Forward Accelerating the Pace

The law is complex. But never confuse complexity with confusion. Complexity can be clearly expressed. That is our job. But in trying to explain the law’s complexity, we often inject confusion into our writing as though we seek to make our points as inaccessible as possible. Confusion only accom­ plishes what we hope to avoid: the glazing of a reader’s eyes. We want nothing to slow that reader, nothing to force that reader to stop, go back, and take another running leap at the confusion. With our sentences now clear, concise, and lively, we have to dismantle the roadblocks and straighten the curves. The problem arises five ways:

Negatives

The human brain has to work hard to absorb negatives, especially strings of negatives. Law school and the practice of law train judges and lawyers to comprehend negatives quicker than the average reader, but even judges and lawyers digest the affirmative much faster. Sometimes we have to use a negative, but there are three kinds we want to avoid.

Interruptions

As confusing as the law is, we don’t need to make it even more confusing by wedging one of our thoughts between the first half and the second half of one of our other thoughts. These are the parenthetical asides we are so fond of stuffing into the middle of our sentences. Most of the time, we set them off by

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placing a comma at the beginning and a comma at the end, so look for “bookend” commas; but be alert for interruptions with no commas.

Repetition

One of the great ironies of writing: The more we say it, the less it sticks. Of all the problems we lawyers have in trying to write clearly, repetition may be the most serious. When we repeat the same point several times, it gets lost in the repetition, because readers expect to advance with each sentence; we can’t take them backward or sideways. Often we can distill the essence of two sentences in one.

Sentence Length

On long sentences, I disagree with nearly everybody: I think they are fine as long as every word in there has to be in there. Too many writing texts admonish us to keep sentence length down to no more than 20, or even 12, words; or they insist that we write in “short, declarative sentences.” Yet the problem is never in the length; the problem is in the clarity; so if your long sentence is clear, leave it long.

Often we get to juggling too many thoughts in one sentence and the sentence becomes unclear, and that is not okay either; that is what we try to avoid:

At the other end we have short, declarative sentences, which, in rapid succession, serve little purpose but to irritate. They are like jarring bumps in the road to understanding. Combine them for a smoother syntax.

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Hiding the Important Point

The important point of a sentence, the point we want to emphasize, goes at the end. The reason has to do with closure, cause and effect, primacy and recency, and simple chronology (what happened first goes first); and rhetoricians have proven its validity.

Typically, the problem arises when we have two pieces of information in the same sentence, which is fine; but if we analyze each piece, we see that one is the supporting point and the other is the main point. We should set the stage with the supporting point, then give the main point. Otherwise, the important point gets lost in the middle and we dribble off at the end with the not­so­ important information.

The problem will not arise in every sentence, but be alert for it, because arranging the information properly aids the reader in understanding and helps to pull the reader through at a faster pace.

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Part II Exercises

In Part III, you will learn how to arrange your sentences for forward movement by dealing with negatives, interruptions, repetition, and sentence length, then putting the important point at the end. Your sentences will come out smoother and clearer, like the ones I suggest here.

1) This argument has not met with much judicial success.

Few courts accept this argument.

2) The balance of the Purchase Price, subject to prorations and adjustments as provided below, shall be paid by bank cashier’s check.

Subject to prorations and adjustments provided below, the balance of the Purchase Price shall be paid by bank cashier’s check.

3) Even if the evidence that Microsoft sought to reduce or eliminate competition between itself and Intel and Apple, and to induce them to hamper Microsoft’s other competitors were not directly and intrinsically relevant to core issues in

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the plaintiffs’ case, that evidence nevertheless would be admissible at trial under Fed. R. Evid. Rule 404(b).

Microsoft sought to reduce or eliminate competition between itself and Intel and Apple, and to induce them to hamper Microsoft’s other competitors. Even if the evidence of this was not directly relevant to core issues in the plaintiffs’ case, that evidence nevertheless would be admissible under Fed. R. Evid. Rule 404(b).

4) If Wozniak had not decided to abandon the motion and in fact had gone forward with it, he would not have been assessed sanctions.

If Wozniak had not decided to abandon the motion, he would not have been assessed sanctions.

5) If such records are subject to public disclosure, the candid evaluation of certificated employees will become impossible. In order for the mandated evaluation process to be effective, evaluations must be private matters between the employee and his or her supervisors.

For the mandated evaluation process to be effective, evaluations must be private.

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Editing Checklist

clean out the junk

convert the passive to active and nouns to verbs

rearrange the sentence for forward movement

fine tune

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ABOUT GARY KINDER

Since 1988, Gary Kinder has taught lawyers around the country how to make their writing clear, concise, and compelling. His in­house clientele includes some of the largest law firms in the country, and lawyers frequently evaluate his one­day seminar, Writing Techniques for Winning Cases, as the best CLE they have ever attended. Kinder not only is a lawyer but also the author of three books of narrative nonfiction, including the critically acclaimed New York Times bestseller, Ship of Gold in the Deep Blue Sea.

HOW HE BEGANTEACHING TOOTHERLAWYERS

As a student at the University of Florida College of Law, Kinder won awards in statewide legal writing competition. Upon graduation, he was asked to teach in the College's legal writing program. After passing the Florida Bar, he traveled west and worked as a prosecutor before deciding to devote his career to writing. His first two books of investigative journalism were bestsellers. The Washington Post called Kinder's Victim "a mirror of Truman Capote's In Cold Blood in its intensity and the feeling of 'being there'."

Armed with reviews describing his prose as "absorbing and cleanly written" (Newsweek) and hailing him as "a highly gifted writer" (The Boston Herald), he approached the Seattle firm of Perkins Coie in 1988 about becoming an in­house editor. A partner at the firm had a different idea ­ have Kinder teach the firm's lawyers how to do what he did so well: write precisely, vividly, and memorably.

Kinder developed his first course to help lawyers make their writing more accessible and streamlined. Within months he was presenting the seminar to Latham & Watkins in Los Angeles and to other national firms. Since then, it

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has evolved into an all­day presentation of advanced writing techniques that is one of the most highly recommended CLEs in the country.

HIS PHILOSOPHY

Kinder encourages lawyers to keep their natural writing style, but to work to improve that style. In his courses, he explains the essence of what makes writing difficult, so lawyers can see more clearly what they are trying to achieve. He realizes that no single technique he teaches will win a case or impress a client, but cumulatively, the techniques greatly increase your chances. To keep his instruction true to a lawyer’s practice, he selects all of his examples from briefs, statutes, decisions, agency rules, contracts, and letters to clients.