Language’’ is a regular feature of the Michigan Bar Journal,
edited by Joseph Kimble for the Bar Journal Advisory Board’s Plain
English Committee. The assistant editor is George Hathaway. The
committee seeks to improve the clarity of legal writing and the
public opinion of lawyers by eliminating legalese. Want to contribute
a plain English article? Contact Prof. Kimble at Thomas Cooley Law
School, P.O. Box 13038, Lansing, MI 48901. For information about
the Plain English Committee, see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.
writers study good prose and then experiment with the rhetorical devices
Toward that end, I offer two examples of successful legal writing: the
first is a short section of a brief, and the second is from an opinion
letter to an administrative-law judge. Both were written to persuade their
audiences, and I believe both were successful for similar reasons.
a Maestro’s Touch
is the short part of a brief.
Defendants Fail to Justify New Mexico’s Discrimination Against Interstate
their Brief on Remand, Defendants attempt to justify or explain away
New Mexico*s discrimination against interstate commerce in water. Their
efforts fail. To begin with, Defendants suggest that the Supreme Court
in Sporhase approved equally substantial discrimination by Nebraska.
Defendants* Brief on Remand at pp. 12*13, 15*16. This suggestion is
erroneous. The Court found that Nebraska*s export laws **may well be
no more strict** than its in-state regulations. 459 U.S. at 926. Nebraska*s
in-state regulations are **severe**: Nebraska requires flow meters on
every well, specifies the amounts of water per acre that can be used,
and prohibits intrastate transfers except between lands controlled by
the same user. Id. at 955*956. New Mexico, in contrast, does not require
meters, does not limit per acre water use, and does not severely limit
intrastate transfers of existing rights. In fact, protection of prior
rights is the only limit that New Mexico places on in-state transfers
of existing rights, and New Mexico counts on the marketplace in those
rights to transfer water from irrigation to urban uses. See generally
Defendants* Exhibit F, pp. 200* 208; R. Supp. 138; Reynolds* Statement,
example, Professor Pieter Schenkkan uses three stylistic techniques worth
investigating: first, his effective transitions pull readers through the
argument; second, he makes optimum use of parallel sentence structure;
and third, he twice breaks his paragraphs with unusually short sentences
that deliver an undercut punch.
uses two transitional devices: traditional word transitions and repetition.
His word transitions signal location in the material (To begin),
signal contrast (New Mexico, in contrast), and signal a shift from
general to specific (In fact). Each of these overt transitions
works directly; each presents an explicit road sign signaling where the
reader stands in relationship to the rest of the text.
additional transitions and create emphasis, effective writers can repeat
important words throughout a document. Schenkkan uses a more subtle form
of repetition--he repeats important syllables; that is, he repeats a piece
of a word containing a major concept from one sentence to the next sentence.
This repetition functions as a sophisticated transition, connecting sentences
with variations on a word. He changes a strong verb (Defendants suggest)
into a noun (This suggestion). He repeats a verb from the heading
(Fail to Justify) in the text and even adds a synonym to it, doubling
its effectiveness (attempt to justify or explain away). If readers
had not already focused on the message the first time, they are subliminally
bombarded with it the second time. The repeated syllables create a subtext
that persuades through sophisticated repetition that is not really perceptible
unless readers study the paragraph for rhetorical devices; the subtext,
however, adds a parallel layer of reinforcement for the main text, emphasizing
the primary points.
most memorable English prose develops through parallelism--the repeated
use of any piece of sentence structure, from prepositional phrases to
entire independent clauses. This repetition of form is used more frequently
than repetition of words to establish a cadence, making it a perfect form
for speeches (and introductions to important arguments):
so, my fellow Americans, ask not what your country can do for you; ask
what you can do for your country.2
shall not flag or fail. We shall go on to the end. We shall fight in
France, we shall fight on the seas and oceans, we shall fight with growing
confidence and growing strength in the air, we shall defend our island,
whatever the cost may be, we shall fight on the beaches, we shall fight
on the landing grounds, we shall fight in the fields and in Che streets,
we shall fight in the hills; we shall never surrender.3
cadence catches the attention of the listener, and the reader, through
a strict adherence to pattern. Whether writers use parallel nouns or verbs
or phrases, the form must remain consistent for it to work. But done correctly,
it does work and is worth the effort.
paragraph, Schenkkan parallels the verbs and objects after the nouns/subjects--not
just in the first list for Nebraska, but again in the second list for
New Mexico. Indeed, he not only creates the initial parallel (requires
flow meters, specifies amounts of water, prohibits transfers) but
also repeats that parallel in the second series: a parallel of a parallel.
is so naive as to believe that Schenkkan produced this paragraph in his
first draft. He worked on the material after he developed the legal concepts,
after the first draft, and maybe even after the tenth draft. This argument
was apparently important enough that he felt justified taking the time
to massage his word choice and sentence structure so that they would carry
as much power as the law that he is describing.
prose technique is to vary sentence length. Schenkkan places two wham-bang
punches into sentences of only three and five words:
Their efforts fail.
This suggestion is erroneous.
short sentences, which contain his major arguments, call attention to
themselves by their brevity. Their efforts fail follows a 20-word
introductory sentence. Similarly, This suggestion is erroneous
presents a striking contrast to the two long sentences on either side
of it. Schenkkan has resisted the temptation, to which most of us give
in so easily, to elaborate the major point with qualifications, discussions,
and definitions. When I examine my own paragraphs for the major ideas,
I usually find them linked, like railroad cars, with all the detail I
thought so important to the idea that I did not want it separated from
the core meaning, the train's engine. I thus unwittingly defeat my purpose.
one suggests, however, that all sentences in legal writing should always
contain only five words; choppy, jolty prose may work for USA Today,
but it is not appropriate for legal writing. The lesson is that an occasional
short sentence is not only appropriate but also dynamite when it is crafted
Maestro at Work
a second example of good writing, Gus Ankum, an analyst at the Public
Utility Commission of Texas, produced this response to AT&T*s argument
before the commission:
does not, in a systematic way, address any of the factors traditionally
used in economic analysis (see above). Nowhere does AT&T discuss what
their unit cost is versus that of smaller carriers. Nowhere does AT&T
expound on the benefits from scale economies in production, distribution,
capital-raising, or promotion. Yet, it is exactly these topics that
fill the larger part of any textbook on industrial organization and
that in the minds of their authors are instrumental in explaining industry
structure and performance--the expressed purpose of this proceeding.
The omission is conspicuous.
you can tell, this paragraph uses many of the same rhetorical techniques
as the first example.
one explicit transition in this paragraph is startling. The word Yet
creates an in¡eresting break in the prose rhythm. Within the structure
of the paragraph, it operates as a fulcrum: the first three sentences
list what AT&T is not doing; the Yet breaks the paragraph and its
contents in two, both signaling the contrast and introducing two sentences
that explain what AT&T should have done.
paragraph achieves its force through the use of negatives, beginning with
AT&T does not. Then Ankum manipulates the specific negative
does not into the global nowhere, places it at the beginning
of the second sentence, and thus emphasizes the negative. He repeats nowhere
as an eye-catching beginning to the third sentence, creating a predictable
rhythm that builds momentum into the contrasting sentences that follow
one could fault Ankum for too many short sentences; indeed, the fourth
sentence is unusually long. But the concluding sentence, which follows
the long, explanatory fourth sentence, carries a TKO punch. It contains
only four deadly words (The omission is conspicuous). The variety
of sentence lengths, like Schenkkan*s above, adds additional power to
course, there are endless ways to approach the same paragraph and produce
good results--as long as well-read writers apply themselves to the task.
article is reprinted from the author's book Expert Legal Writing.
Plaintiffs' Reply on Mootness and Facial Unconstitutionality, City
of El Paso v Reynolds, No. 80-730HB (D NM, filed Mar. 19, 1984).
President John F. Kennedy, Inaugural Address (Jan. 20, 1961).
Winston S. Churchill, Speech on Dunkirk at the House of Commons (June