Learn to diagnose and improve weak legal writing.
Develop a checklist of common problems to watch for while revising.
A central goal of this newsletter is to help you diagnose problems with turgid writing. You should develop a checklist of common problems to watch for while revising.
Consider a breach-of-fiduciary-duty case in which the plaintiff, a trust beneficiary, argues that a trustee has failed to properly administer the trust. An excerpt from the plaintiff’s complaint follows. Has the plaintiff successfully communicated their point and conveyed a persuasive theme?
At no time during his administration of the respective Trusts did LANE maintain books of account which distinguished receipts and disbursements as between income and principal; nor did he, prior to making any distribution to or on behalf of any of the beneficially interested persons for either respective Trust, ascertain whether same was a distribution of income required to be distributed currently, a discretionary distribution of trust income; or, a discretionary distribution of trust principal; nor did he contemporaneously or otherwise create any record or other memoranda to reflect and memorialize whether any discretionary distribution, whether from income or principal of either Trust, was made in conformity with the express written standard for such distribution, as provided in the respective Trust indentures.
The plaintiff hopes to inspire outrage at the trustee’s behavior by reciting some of the trustee’s wrongs. As drafted, however, the paragraph is more likely to inspire boredom and confusion than outrage.
Here are some of the things I notice when I read the LANE paragraph:
• Overlong sentence. Short sentences make prose more readable, so you should aim for an average of 20–30 words per sentence. The LANE paragraph consists of a single 122-word sentence.
• Pompous diction and legalese. Use plain language. Try not to sound “lawyerly” in the stereotypical sense — that is, don’t contaminate your prose with words like “heretofore” or “above-captioned.”
In the LANE paragraph, “as between” should be revised to “between,” “prior to” should be revised to “before,” and the pronoun “same” should be revised to “it.” Also, why is “LANE” capitalized?
• Buried verbs. Look for and revise “buried verbs”: nouns and phrases representing some calcified action that can be extracted into an active verb. In the paragraph above, the phrase “was made in conformity with” should be revised to “conformed to.”
• Improper semicolon and comma use. The proper format for a series of three alternatives is ”X, Y, or Z.” The paragraph above instead uses the format “X, Y; or, Z”: “a distribution of income required to be distributed currently, a discretionary distribution of trust income; or, a discretionary distribution of trust principal.”
• Redundancy. Be on alert for strings of redundant synonyms that you can condense. The paragraph above contains the following redundant phrases: “contemporaneously or otherwise”; “record or other memoranda”; “reflect and memorialize”; and “express written standard.”
Pause and think about why each of these phrases needs revision. The phrase “contemporaneously or otherwise” encompasses all time and is therefore uninformative. The general term “record” encompasses the less-general “memoranda.” The terms “reflect and memorialize” mean the same thing in the paragraph’s context. And every written statement is “express” (as opposed to unwritten statements, which are “implied”), so the adjective “express” can usually be dropped.
One of your goals as a legal writer and editor should be to learn to recognize and eliminate similar redundancies.
 The comma before the next-to-last item in a list is called a serial comma (sometimes referred to as an “Oxford comma”). You should always include that comma to avoid ambiguity.