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Would-Be Precision vs. The Real Thing

by Susan McCloskey

Too often legal writing is associated with hair-splitting and excessive caution. Susan McCloskey describes good legal writing as a means of delivering genuine precision through well-chosen words.

Legal writing is an easy target for parodists because its distinctive features lend themselves to comic exaggeration. A fledgling parodist needs only to write a long sentence stuffed with qualifying words and phrases, toss in a little Latin, a few "hereinunders," a "said" or an "instant," and declare the job done. Accomplished parodists, taking more careful aim, achieve greater comic effect and reveal more about the writing they parody. Here, for instance, is the first sentence of Edward A. Hogan's parody, "How a Law Professor Tells His Children the Story of the Three Bears":

Once upon a time (the exact date is not known, but it is not likely to be put in issue, since the mind of man runneth not to the contrary), a little girl (about whose parentage there is no issue and who will be presumed therefore to be legitimate) named Goldilocks wanted to visit her grandmother (whether paternal or maternal is immaterial) who lived on the other side of the forest (the exact location of which may be determined in metes and bounds by consulting the records of the Registry of Deeds in the county in which the said premises are located).1

Here, Hogan pokes fun at the tendency of some legal writers to marshal around even the simplest assertion a phalanx of qualifications, as if all readers were adversaries seeking a point of attack. Notice how the parenthetical remarks – three of which specify what is not relevant to the story at hand -- crowd out the statement that Goldilocks wanted to visit her grandmother on the other side of the forest. If the narrative continued at this halting pace, Goldilocks would never arrive at the Three Bears' house to sample their porridge, sit in their chairs, and sleep in their beds.

Another parodist, Daniel R. White, constructs his parody around the editorial process by which an unassuming sentence is fitted with a suit of impenetrable armor. When a junior associate's statement, "The sky is blue," first falls under the editorial gaze of a more experienced associate, it loses its appealing certainty. After a few revisions, it is equipped to forestall misconstruction from several directions:

In some parts of the world, what is generally thought of as the sky sometimes appears to be blue.

By the time a second editor, the supervising partner, has finished with the sentence, the stunned associate has begun to grasp that in the attorney's quest for invulnerability, self-evident propositions seem self-evident only to the unwary. The partner wants to know whether the sky appears to be blue at night, or only in the day? Does the sun also appear to be blue? Wouldn't "in Cleveland" be more specific than "in some parts of the world"? And who, precisely, thinks of the sky as blue in the first place? ²

Both of these parodies find their source in the lawyerly passion for precision, a passion honestly, indeed necessarily, come by. Attorneys, after all, inhabit a world where the distinction between "that" and "which" still matters, where a misplaced "only" can alter the terms of an agreement, where a stray bit of punctuation can obscure what it was meant to clarify. And some readers of legal documents really are adversaries, poised to pounce on the hasty generalization or the unguarded remark. If the blueness of the Cleveland sky is genuinely at issue, then "The sky is often blue in Cleveland" is a more pertinent, and certainly a more precise, sentence than "The sky is blue." Why create an opening for an adversary's argument?

Precision is also highly prized because of the nature of a lawyer's practice, in which disputes are seldom about legal principles themselves. Everyone would likely agree that if an armed robber entered my home and threatened to kill me unless I opened my wall safe, I would have the right to defend myself in any way I could. Disputes arise instead over the application of a principle to a particular set of facts. If I boasted in a down-at-heels bar about the contents of my wall safe and then shot dead the suspicious-looking person who followed me home, my right to claim self-defense would no longer be beyond dispute, especially if I fired the gun while the victim was seated in his car, consulting a map, half a block from my front door. In both scenarios, the facts quite obviously matter, and being precise about both them and the law's bearing on them counts for a great deal.

At what point does the passion for precision cease to be a virtue and become a worthy target for parody? Whenever it finds itself at odds with the writer's principal objective of communicating clearly and effectively with a reader. This moment differs from document to document, reader to reader. A judge reading a brief, for instance, is likely to have developed a higher tolerance for the hallmarks of excessive lawyerly precision than would an entrepreneur who has sought for the first time a lawyer's aid in drafting an agreement. Despite these shifting standards, however, there are certain reliable signs that the wish for precision has exposed a legal writer to the parodist's dart.

The first is the overextended sentence. Making a statement more precise by hedging it with qualifications imposes no duty on a writer to accomplish the task in a single sentence. We've all had the experience of trying to say everything at once, with sometimes comical but seldom successful results.Trying to write everything at once is no likelier to work. The author of the following sentence, defying the odds against success, produced dizzying results:

On or about the second day of May 1997, the Defendant on the Counterclaim, Skypoint Bank and the FDIC, as Receiver, entered into a contract by which the Defendant on the Counterclaim, Skypoint Bank and the FDIC, unlawfully and without statutory authority, purported to sever rights under the contract and to eliminate the rights of the Plaintiff on the Counterclaim to net out claims under the aforesaid bilateral contract by assigning to the Defendant on the Counterclaim, Skypoint Bank, the right to recover under the note, but without Skypoint Bank agreeing to be subject to the rights of the Plaintiff on the Counterclaim, and concurrently assigning all assets of the Millbrook Bank to Defendant on the Counterclaim, Skypoint Bank, by which the FDIC, as Receiver, retained no assets with which to pay claims of creditors of Millbrook Bank, and by which the FDIC, as Receiver, did not retain the rights of the Millbrook Bank under the note to permit the payment by netting out of such lawful claims as were held against such note by the Plaintiffs on the Counterclaim, the Haverford Partnership. . .

(This quotation ends several lines before the original sentence did.) The sentence aims, apparently, to create the impression that whatever happened in this case happened all at once, in a tumult of connivance and betrayal. Notice that after we're told the date at the beginning of the sentence, the only temporal indicator is the adverb "concurrently." The writer seems to believe that crucial relationships would be obscured and important nuances lost if any information leached out into another sentence. But qualifications can do their work of achieving precision from neighboring sentences just as well. As soon as this sentence is divided into smaller units, each one of which focuses on a single aspect of the event, it immediately becomes clearer:

On May 2, 1997, Skypoint Bank, the Defendant on the Counterclaim, and the FDIC, as Receiver, entered into a contract by which they unlawfully purported to sever rights under the contract and to eliminate the rights of the Haverford Partnership, the Plaintiff on the Counterclaim, to net out claims. They did so by assigning to Skypoint Bank the right to recover under the note, but without Skypoint's agreeing to be subject to the rights of the Haverford Partnership. They concurrently assigned all assets of the Millbrook Bank to Skypoint Bank. By this action, the FDIC, as Receiver, retained neither assets with which to pay claims of creditors of Millbrook Bank, nor rights of the Millbrook Bank under the note to permit the payment by netting out lawful claims against the note by the Haverford Partnership.

The passage is still no model of prose style, but it has the indispensable virtue of being at least intelligible.

Another sign of precision run amok is the appearance of more than one or two parenthetical remarks per document. A parenthesis is a useful device, enabling writers to explain, comment on, or qualify the point of the sentence in which the parenthesis appears. But like other good things, parentheses are most effective when seldom used. Used too often, they become distracting and sometimes maddening -- or even ridiculous, as they are in Hogan's retelling of the Goldilocks story. The reason is suggested by the very typography of the device, those round brackets that distinguish the parenthesis from the sentence in which it lodges. They signal that the reader's smooth progress from the sentence's opening to its close is about to be interrupted. When the interruption is brief, pertinent, and not too often repeated, readers are unlikely to mind. But when the opposite conditions apply, as they often do in legal documents, readers are certain to be annoyed:

This memo (written in response to your request) identifies the more salient portions of our policies to minimize the company's trade-secret risks (at least in contracts). (I'm sending it to the entire department because we all need to remain vigilant about the downside risk in our efforts to attain our technology goals.) We must remember that the company's interests should be protected both when our agreements are successfully completed and when (regrettably) they end discordantly. A case in point is the recent dispute that arose out of the company's fully funded development contract requiring a consultant (never before employed by us) to develop a technology (the nature of which is irrelevant here).

Not one of the parentheses in this passage is necessary. With the exception of the second sentence, which requires no parentheses at all, the writer has used round brackets as substitutes for less disruptive commas. The urge to qualify and explain in order to be precise here achieves nearly the opposite goal. The writer seems fussy, uncertain, reluctant to get on with the business of the memo -- an impression that does nothing to foster a reader's confidence in the writer's words. Imagine the passage without the parentheses and see how much less distracting it is to read.

Repetition is another mistaken but well-traveled path to the goal of precision. It is not, however, a means to refine or clarify a writer's point. Indeed, aphorists like Oscar Wilde achieved the point and polish of their observations by avoiding repetition altogether and making every word count:

A cynic is a man who knows the price of everything and the value of nothing;

Good resolutions are simply cheques that men draw on a bank where they have no account. ³

When repetition figures deliberately and prominently in a piece of writing, its aim is not precision, but emotional power. Think of the effect, for instance, of Martin Luther King's again and again telling his hearers at the Lincoln Memorial in 1963, "I have a dream."

Repetition in legal writing often results from a writer's reluctance to use pronouns. Mindful that a pronoun poorly used can be a source of ambiguity, some writers concerned about precision avoid pronouns altogether. The result is a passage like the following, in which the repetition of the principal nouns becomes for the reader the verbal equivalent of a slowly dripping faucet:

Mr. Rottier was indicted on February 26, 1997. Mr. Rottier filed a motion to suppress evidence on March 17, 1997. The motion to suppress evidence was denied on March 25, 1997. Mr. Rottier was subsequently found guilty as charged in the indictment by a jury on July 8, 1997. Mr. Rottier filed a notice of appeal on July 30, 1997. Among the grounds for Mr. Rottier's appeal in the notice of appeal is the denial of the motion to suppress evidence, which denial resulted in the presentation to the jury of highly prejudicial evidence against Mr. Rottier.

There is small chance in this passage that readers will lose sight of who was indicted and convicted, but they will almost certainly lose patience. No one would be confused if once or twice, the writer used "he" or "the defendant" instead of Mr. Rottier's name or "it" instead of "motion to suppress evidence." When a pronoun has a single, unambiguous antecedent, a good writer uses it to avoid needless repetition of the noun.

Sometimes repetition spreads from individual words to phrases, as in the passage below, where the writer treats the spaces after each period as if they were black holes. Each sentence's meaning is sucked into the gravitational abyss, to be partially and fleetingly recovered through repetition in the next sentence:

The Best Company has amended its pension plans to specifically exclude leased employees from participation. This exclusion of leased employees from participation is permitted by law under two circumstances. The first of the two circumstances permitting the exclusion of leased employees is that all of The Best Company's pension plans cover at least 70% of its nonhighly compensated employees. Included in this percentage of nonhighly compensated employees should be the excluded leased employees. The second of the two circumstances permitting the exclusion of leased employees is that the number of The Best Company's leased employees who are nonhighly compensated employees should not become significant.

Aiming for precision, the writer mistook the obligation to dot the i's and cross the t's for an obligation to dot and cross them twice. Readers so painstakingly prevented from misconstruction are unlikely to take much interest in a text that leaves them no work to do in apprehending the writer's meaning. Part of the fun of reading, after all, is the mental process of understanding that "the first" in sentence 3, for instance, refers to one of the two circumstances that the writer has just mentioned. Even that minimal engagement with the text is prevented when the writer feels compelled to spell everything out. Notice how much clearer and more precise the revised version of the passage is, in which the same points are made without maddening repetition:

The Best Company has amended its pension plans to specifically exclude leased employees from participation. This exclusion is permitted by law under two circumstances. First, the Company's pension plans must cover at least 70% of its nonhighly compensated employees, counting the excluded leased employees. Second, the number of the Company's leased employees who are nonhighly compensated should not become significant.

If overextended sentences, too many parentheses, and too much repetition are signs that the tail of precision is wagging the writerly dog, what are the signs of truly precise writing? The short answer is well-constructed sentences made up of well-chosen words. About the words, Mark Twain once observed, "The difference between the right word and the almost right word is the difference between lightning and the lightning bug."⁴ Writers who settle for almost right words have to prop them up with adjectives, adverbs, and prepositional phrases to render their meaning more precise. The documents that result are usually wordy, vague, and difficult for the reader to understand. By contrast, writers who consistently search for the right words develop a style that relies on nouns and verbs rather than modifiers. They may draft a sentence that reads,

My client was very deeply upset by the verdict of the jury in his case,

but will revise it to read,

The jury's verdict dismayed my client.

And they will construct sentences that readers can take in at a single reading, rather than monstrous sentences randomly fashioned from discrete clauses cobbled together with ands and buts.

When qualifying words, phrases, or clauses are necessary to precise expression, the truly precise writer will keep them to a minimum and place them as close as possible to the words they're meant to modify. Real precision, in other words, involves placement as well as selection. The misplaced modifier of the following sentence is unlikely to survive a precise writer's first draft: "Plaintiff filed this complaint on June 23, 1997, alleging that she was sexually harassed by the Defendant in the Superior Court of the Ninth Judicial District." Surely the italicized words are meant to tell us where the complaint was filed, not where the defendant allegedly broke the law --a job they can do only if they are placed after "complaint." And in the sentence,

Like insanity, some commentators argue that mental retardation renders its sufferers morally blameless,

the commentators are, one hopes, not like insanity at all. "Like insanity" needs to be moved next to the other term in the intended comparison:

Some commentators argue that mental retardation, like insanity, renders its sufferers morally blameless.

Especially when truly precise writers want to express abstract or complex meanings, they avail themselves of all the language's resources, including its figures of speech. An apt metaphor, for instance, can often crystallize a complicated line of argument or highlight the central point of a detailed analysis.

Imagine, for instance, that an attorney is representing four of the five members of a partnership. The fifth, Fred Smith, has lost one fortune to ill-advised independent investments and wants to gain another by squeezing his fellow partners for a richer buy-out than the generous one they have already offered him. Most writers would be content to state the facts of the situation and leave the matter at that. A truly precise writer is likely to make the situation vivid and memorable by summing it up in a metaphor ("Smith is staying in the game, eager to play his pair of two's against a royal flush") or in a revitalized clichŽ ("Smith likes to think he is David pitted against Goliath, but he has left his slingshot at home") or in a set of balanced phrases leading to a climax ("Having invested foolishly and lost deservedly, Smith would recover effortlessly").

It is safe to say that writers who are truly precise will never feel the bite of the parodist's lash. When they tell Goldilocks' story to their children, the heroine will decide to visit her grandmother and will set out across the forest without dragging bundles of qualifications behind her. And when they read or hear that the sky is blue, they will at least ask themselves whether precision about such a harmless remark is worth the effort and the knowledge of meteorology that precision would require.

But truly precise writers will do more than escape well-deserved mockery. They will bring to the work of composing and revising the highest standards of their craft, and will take pleasure and pride in the documents they produce. And they will earn for their labors the gratitude of their delighted readers, who can measure in wasted time and overtaxed patience the difference between would-be precision and the real thing.

Endnotes

1 In Trials and Tribulations: An Anthology of Appealing Legal Humor, ed. Daniel R. White (New York: Plume [Penguin], 1989), p. 42.

2 In Trials and Tribulations, pp. 244-46.

3 Quoted in Hesketh Pearson, The Life of Oscar Wilde (Harmondsworth, England: Penguin Books Ltd., 1946; rptd. 1987), p. 202.

4 Quoted in Good Advice on Writing, ed. William Safire and Leonard Safir (New York: Simon and Schuster, 1992), p. 188.