Write about characters performing actions.
Write sentences that are dynamic, not static.
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Many sentences in legal writing are static; they lack any action and merely describe something that exists. The following sentence is typical:
Even if the Amended Complaint were not operative, which it is, federal jurisdiction over Plaintiffs is not proper because their claims against Boeing are based on conduct solely related to negligence that caused a fire to break out on the SSFL and/or caused the fire to spread, unrelated to any federally ordered activities from decade(s) ago.
Note how that sentence overrelies on the static verb to be (“were,” “is,” “are,” etc.).
The best sentences, however, are dynamic rather than static. At the heart of most good sentences is a character performing some action.[1]
The subject of a sentence should usually be a person, entity, or concept that performs the action of a verb. In the example sentence above, for instance, the statement that “federal jurisdiction over Plaintiffs is not proper” could be recast as “this Court lacks jurisdiction over Plaintiffs’ claims.” Though “lacks” is another weak verb, our revision improves the sentence because “the court” is a concrete actor that the reader can envision. When possible, choose people or other tangible actors as the subject of your sentences. Readers prefer reading about people to reading about federal jurisdiction or some other abstraction.
“To be” is the most common verb in the English language, and it is also the weakest. Other weak verbs include has, concerns, exists, and remains. What makes these verbs weak is that they do not imply any action. You should prefer to write about actions rather than about states.
One tip is to consider rewording sentences that start with “It is” or “There is/are.”
For example:
“There are three elements to a negligence claim.” —> “A negligence claim requires the plaintiff to prove three elements.” Or “A negligence claim has three elements.”
“There is subject matter jurisdiction.” —> “The Court has subject matter jurisdiction.”
One caveat is that the “There is X” sentence structure can be useful to emphasize the “X” word:
“There are 100 days until the bar exam.”
It is as though the mind, hungry for information, skips over the contentless “There are” and focuses on the substance that follows that introductory phrase.
Here are a few more tips for writing about characters performing actions:
As you write legal documents, think of yourself as a storyteller.
Use concrete examples and analogies.
Instead of asking “What does the law require?,” ask “What must people subject to the law do?”[2] For example: “Anyone subject to the law must submit to having his or her photograph taken at a specified location whenever the State so requests.”
Here are a few more examples of legal sentences in which characters perform actions:
“This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1367.”
“The statute attaches the threat of criminal sanctions by making misclassification a misdemeanor or even a felony under California law.”
Footnotes:
[1] The idea of building sentences around “characters performing actions” is borrowed from Joseph Williams’s excellent book Style: Toward Clarity and Grace (Chicago 1995).
[2] This tip is borrowed from Bryan A. Garner’s Legal Writing in Plain English (Chicago 2d. ed. 2013).
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Ryan McCarl (LinkedIn | Twitter | Blog) teaches Advanced Legal Writing at the UCLA School of Law and is a partner at the law firm Rushing McCarl.