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Recognizing Verbal Clutter: Four Steps to Shorter Documents
by Susan McCloskey
(reprinted from New York State Bar Journal, November 1998, pp. 8-14 © 1998 Susan McCloskey)
Clients despair. Judges complain. Secretaries roll their eyes and shudder. "This document is too long!" they insist. "Make it shorter!" When the plea goes unanswered, clients ask for summaries, courts set page limits, and secretaries work overtime.
Experts are generous with suggested remedies: "Omit needless words." "Usually, compress what you mean into the fewest words." "Run your pen through every other word on the page. Strike out every slack syllable."1 But how can the writer, staring at a draft on a deadline, quickly identify the words the experts have in mind? How can one develop the sixth sense that recognizes offensive clutter and knows how to excise it?
Clutter lurks in the high-sounding but empty phrase, the redundant word, the overly detailed analysis. It hides behind years of legal tradition that have made it seem necessary, even though it exasperates readers and complicates the task of making the law understandabe to an increasingly critical public.
Legal writers must exercise vigilance, and even courage, to analyze what truly needs to be said and excise the superfluous, even if the offending words are found in a letter or a contract that traces its heritage to the days of a revered founding partner.
Such vigilance takes time as well as effort. In the world of billable hours, it's hard to charge a client for a few hours spent turning a long document into a shorter one. As Pascal observed to the recipient of one of his letters, "I have made this longer than usual, only because I have not had time to make it shorter."2 The rewards, however, can be as substantial as they are difficult to quantify: A client who wins on appeal may never know that a clear and succinct brief defined the problem for a "hot bench" of judges who skewered the opposition at oral argument. But the judges know, and next time opposing counsel will, too.
Four guidelines for attacking clutter follow. Without investing more than a few minutes of valuable time, you can reduce the length of your documents by at least twenty-five percent. Searching for them routinely will also make other forms of clutter easier to recognize.
Sentence Starters
Some needless words conveniently appear right at the beginning of the sentence, so they're easy to spot. They sometimes spring from the writer's wish to be emphatic. "Please be advised that" is a lawyer's verbal equivalent of underlining:
Please be advised that the lender must receive the first payment on your loan by June 23, 1998, at 5:00.
But if emphasis is the goal, the sentence without its first five words better achieves it:
The lender must receive the first payment on your loan by June 23, 1998, at 5:00.
The plain statement, unassisted by the sentence starter, has the force of fact. Greater emphasis can be achieved in even fewer words, by turning the statement into a command:
Make the first payment on your loan by June 23, 1998, at 5:00.
Sometimes writers use sentence starters to ease themselves into a statement that they would rather not write, either because they're staking themselves on the statement that follows or because they fear distressing their readers. "It is important to note that" is the form this easing usually takes:
It is important to note that the conclusions expressed here are based solely on the information you have provided. Additional information may alter the conclusions.
Here the writer is both engaging in self-protection ("I'm going on the stuff you gave me") and treating the reader gingerly ("Are you sure you're not holding back on me?") But one needn't note that something important is about to be stated. Simply go ahead and note what needs noting. Presumably, everything you've written is important. Burdening your reader with unimportant information is at best a wasteful practice.
So watch for the introductory phrases that merely ease the writer or reader into the sentence's real point. It's all right to draft such phrases, provided you excise them in revision. And if you excise them often enough, you'll soon find it impossible even to draft a sentence like this one:
One cannot emphasize strongly enough the unfortunate fact that in most states of the union, regulatory agencies can put thriving enterprises out of business.
Most, and perhaps all, of the words before the comma can be cut. If "in most states of the union" is an important qualification, it can be reduced to "In most states".
A subtler form of clutter at the beginning of sentences results from the "There is... that" construction and its variants, such as "There seems" or "There appears." The sentence,
There is little case law that addresses this issue.
can make its point more economically:
Little case law addresses this issue.
Three words may not seem worth cutting, but the frequency of this construction in legal writing makes a small cut in every sixth or seventh sentence add up fast. These words are worth retaining only when getting rid of them creates a new problem, such as stuffiness or strain. The sentence,
There are three solutions to this problem,
is preferable to
Three solutions to this problem exist.
Buried and Passive Verbs
The verb is the heart of a sentence, as single-word sentences such as "Stop" and "Go" make clear. One can't have a sentence without a verb, and the more vigorous the verb, the stronger the sentence.
A major source of clutter in legal prose arises from the wish to blunt the force of the verb. The most common way to achieve this self-defeating goal is to bury the verb, as in the sentence,
The court must make a ruling on the admissibility of the evidence.
Here, the active verb "rule" is turned into a noun and muffled by the verb phrase "must make a ruling". Digging up the buried verb immediately shortens the sentence:
The court must rule on the admissibility of the evidence.
Buried-verb phrases built around forms of the verb "to have" are also common:
The defendants had no objection to the delay until they had knowledge of the plaintiff's straitened circumstances.
Unearthing the buried verbs improves the sentence:
The defendants did not object to the delay until they knew of the plaintiff's straitened circumstances.
This simple exercise points the way toward even greater economy through the substitution of a positive for a negative phrasing:
The defendants objected to the delay only when they learned of the plaintiff's straitened circumstances.
Like buried verbs, passive verbs throttle the life of the sentences in which they appear. Guides to effective prose tell their readers to avoid such verbs -- a piece of advice that writers can follow only if they recognize the passive voice. Here's how: When the grammatical subject of the sentence is taking the action:
Attorney Joseph Brown objected to the defense's line of questioning
the active voice is alive and well. But when the grammatical subject is not taking the action:
The defense's line of questioning was objected to by Attorney Joseph Brown
the passive voice is the inevitable result. The line of questioning (the subject) did not do the objecting. We learn eventually that Attorney Joseph Brown objected, but the statement loses its force because we don't meet the actor until the sentence ends.
Passive verbs are grammatically sound, but stylistically rotten. They baffle the reader's expectation that the grammatical subject will most often be the agent of the action in the verb. Worse yet, because passive verbs allow a writer to drop from the sentence any reference to an agent, they can cause confusion. In the sentence,
Statements were made that impugned the defendant's integrity,
the reader is left wondering who made the statements. The plaintiff? The defendant's business partner? His next-door neighbor? Here, resort to the passive voice makes indirect and unclear what might easily be straightforward:
The plaintiff impugned the defendant's integrity.
Straightforwardness has the additional advantage of begetting brevity. It takes thirteen words to observe, as legal writers in some jurisdictions must, that
It is hereby certified that the foregoing statements made by me are true.
It takes only eight to make the same point in the active voice:
I certify that my statements here are true.
Ready-to-hand Phrases and Sentences
Ready-to-hand phrases are a third source of clutter. In the heat of composition, it's easy to summon up the phrases one is accustomed to reading or hearing every day. In the coolness of revision, such phrases should be rooted out.
"At this point in time," for example, is simply the five-word equivalent of the single word now, and it takes only a moment's reflection to appreciate the accuracy and economy of the monosyllable. "On a regular basis"-- and "on a daily/ weekly/monthly/yearly basis" -- are the windy equivalents of regularly, daily, weekly, monthly, and yearly. In revision, the single adverb should trump the prepositional phrase every time.
Similarly, "due to the fact that" can always be boiled down to "because" and "whether or not" can be trimmed to "whether". The sentence,
We are delaying our response due to the fact that we do not know whether or not the plaintiff will file a revised complaint,
can make its point more succinctly:
We are delaying our response because we do not know whether the plaintiff will file a revised complaint.
Ready-to-hand phrases often burgeon into ready-to-hand sentences, the kind that roll off the writer's fingertips, but that strike the reader as the ocular equivalent of white noise. The problem is most apparent in letters, probably because dictation encourages the speaker to use the first words that come to mind. Many letters begin with sentences like these:
Pursuant to our conversation on February 18, 1998, I am writing to explain our position on the above-captioned matter,
or
Enclosed please find the documents necessary for the closing of the above-captioned transaction.
In both cases, the hapless reader has no sooner been invited into the letter with the conventional salutation, "Dear Attorney Grimes," than he or she must wade through the fustian of "pursuant to" or "enclosed please find," then jump out of the letter to focus on the caption and identify the matter or transaction. Once writers have captured the reader's fleeting attention, they are well advised to hold it by renouncing tried-and-false openings for ones more direct:
I am writing to explain our position on the Sealy matter, which we discussed by telephone on February 18, 1998,
or
Here are the closing documents for the Simmons Realty loan.
What's true of the opening of a letter is too often true of the closing. Almost every business letter written in the United States now ends with a version of this sentence:
If you have questions or comments, please don't hesitate to call me.
Most writers admit that the last thing they wish is to receive the call they've so warmly encouraged, so the closing is not only clichéd but mildly disingenuous. Some legal writers try to pump life into this worn-out sentence, usually by complicating and extending it:
Should you have any questions or suggestions at this point in time or at a later date, please do not hesitate to contact the undersigned at your earliest convenience.
The rule-of-thumb here, as with all ready-to-hand phrases, is simple: If you're accustomed to seeing the words you've just written in other documents, or to hearing them spoken, cut them in revision. Some can be reduced to a single word; others should simply be cancelled. The only exceptions are legitimate terms of art --a category far narrower than some attorneys are willing to concede.
Redundancy
By far the largest and most various category of clutter is redundancy -- a disposition to say the same thing twice. This problem has its origins in carelessness, or the wish to be emphatic, or the misplaced desire to be precise. Its presence in a document, however, sends only one message to the reader: "I didn't think you'd get what I'm telling you the first time, so I'm giving you another chance." Underestimating a client's or a colleague's or a judge's attentiveness or intelligence may sometimes be warranted, but it's seldom a good idea.
The habit of reiteration, unfortunately, has an ancient pedigree in the law and has been hallowed by tradition.3 Latin, chiefly, and English were the languages of the law before the Norman king William conquered England in 1066. After that event, French entered the spoken, and later the written, business of lawyers. Not all attorneys, however, were conversant in all three languages. In the effort to make themselves mutually understood, medieval lawyers developed their doublets and triplets -- those familiar, synonymous phrases that are used even today. "Goods and chattels", "fit and proper," and "save and except" are such synonyms, the first term in each pair derived from Old English, the second from French. The first and third terms in the triplet -- "give, devise, and bequeath" -- are Old English; the second is Old French. "Peace and quiet" combines French and Latin, and "will and testament" joins Old English and Latin. These phrases preserve a time when the Saxon Athelstan and the French Michel stumbled through their business of pleading, searching for equivalent terms on the path to understanding. But the Norman Conquest is nearly a millennium behind us. Now one term, not the term and its translations, is sufficient.
The redundancy of these doublets and triplets is easy to spot and eliminate, as soon as a writer recognizes that not all forms of traditional language remain useful. Traditional language may boast more recent antecedents, such as the police reports in which suspects are "tall in stature, heavy in build," and have "hair red in color" or "an attitude surly in nature." Redundancies of this sort spill into legal prose in less comical ways:
Opinions on this point are few in number and complex in nature,
or
This agreement has been in effect for a period of time of more than two years.
"Few" is a designation of number, as "complex" is of nature, and as "two years" is of a period of time. Identifying this source of clutter is largely a matter of knowing that it commonly exists and makes writers sound silly at best, pretentious at worst.
Harder to recognize is redundancy offered in the name of precision or emphasis. Writers can avoid the problem or solve it in revision by assuming, until the evidence proves otherwise, that their readers are intelligent and careful. They seek clarity, not an iron-clad guarantee that writers will forestall even the remote possibility of misconstruction. The writer of the following sentence was perhaps too concerned about using a potentially ambiguous pronoun:
Although the occurrence of accidents was not completely foreseeable, circumstances made the occurrence of accidents reasonably foreseeable.
The repetition of occurrence of accidents could be avoided by substituting the pronoun them after made:
Although the occurrence of accidents was not completely foreseeable, circumstances made them reasonably foreseeable.
Here, "them" has only one plural noun, accidents, to which it could reasonably refer, so ambiguity is not a risk. Removing the repetitious phrase from the sentence reveals other possible economies. Because accidents are the occurrence in question, "occurrence" might be cut. And since the relevant distinction is between degrees of foreseeability, the distinction might be sharpened:
Accidents were reasonably, though not completely, foreseeable.
The following passage from a brief in a sexual-harassment suit seems to have been triggered by the writer's determination to leave no stony point unturned:
Flaherty is a member of the protected class. Male employees are members of the protected class under Section 12940(h). Thus, as a male employee, Flaherty is a member of the protected class under Section 12940(h).
A syllogism is struggling to express itself here, but such logical proof of the incontestable fact that Flaherty is a male is certainly unnecessary. The writer's only real point is expressed in the final sentence. Stating pieces of that point before the point itself creates the oxymoron of an anticipatory redundancy.
Clutter on a Grander Scale
Once you learn to look for and eliminate the major sources of clutter in legal prose, you'll find yourself hauling subtler kinds of clutter to your computer's trash bin. Here's a passage with all the usual suspects:
There is reason to believe that the FCC undertook this action for the purpose of providing updated information in a timely fashion, on the grounds that providing outdated information was, for all intents and purposes, useless. (36 words)
The problems here are a sentence starter ("There is reason to believe that"), ready-to-hand phrases ("for the purpose of"; "on the grounds that"; "for all intents and purposes"), redundancy ("for the purpose of" and "providing"; "updated" and "timely"), and a buried verb "(undertook this action"). Eliminating them creates a much trimmer sentence:
The FCC acted to provide updated information, because outdated information was useless. (12 words; a 66% reduction)
Now that these four kinds of clutter have been cleared away, it's easier to see that further revision is possible:
The FCC acted to provide timely, useful updates. (8 words; an additional 33% reduction)
Here's a harder case:
If any Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day. (68 words)
Here, the cuts depend on the passive verb ("shall be extended"), the ready-to-hand words ("any" and "such"), and redundancy ("shall be extended" and "occur"; "next" and "succeeding"; "next" and "following"; "next" and "preceding"; and the reiteration of "such Interest Period"):
If an Interest Period would otherwise end on a day which is not a Business Day, the Interest Period shall end on the next Business Day, provided, however, that if this extension causes the last day of the Interest Period to occur in the next calendar month, the last day shall occur on the preceding Business Day. (57 words; a 16% reduction)
This reduction is not very substantial, but reveals enough of the writer's meaning to point the way toward greater clarity and brevity:
If an Interest Period would end on a day other than a Business Day, it shall end on the next Business Day. If this day falls in the next calendar month, the Interest Period will end on the last Business Day of the earlier month. (45 words; an additional 21% reduction)
As these examples indicate, shortening a document's length is not simply a matter of easing the reader's burden, although that goal is always a worthy one. Striving for brevity serves writers first. Time invested in this effort pays obvious dividends in a document's clarity and cogency. And time invested ultimately results in time saved. A client or colleague or judge who understands what an attorney has written will not have to call for clarification or demand it from the bench.
Writers who spend time cutting and clarifying their prose also find that they soon produce their documents more efficiently. They spend less time revising because they have stopped writing the words they once wrote and then cut. They've stopped thinking in the woolly, careless, sometimes self-protective ways that once made sentence starters, buried and passive verbs, ready-to-hand phrases, and redundancy an inevitable consequence. They discover, in short, that the discipline of refining their thoughts, of discovering precisely what they mean, and of expressing that meaning in well-chosen words has simply made them better writers and smarter attorneys.
Endnotes
1. William Strunk, Jr. and E. B. White, The Elements of Style, 3rd ed. (New York: Macmillan Publishing Co., Inc., 1972; rptd. 1979), p. 23; Joseph M. Williams, Style: Toward Clarity and Grace (Chicago and London: The University of Chicago Press, 1990) p. 115; Bryan A. Garner, The Elements of Legal Style (New York and Oxford: Oxford University Press, 1991) p. 55.
2. Blaise Pascal, Lettres Provinciales (1657), number 16.
3. For a fuller discussion of the use of Latin, French, and English in medieval and modern law, see David Mellinkoff, The Language of the Law (Boston and Toronto: Little, Brown and Company, 1963), chapters VI-IX.