In-House Counsel, Law Professors, Law Schools

On Legal Writing: Teaching The Rules, Or Teaching The Exceptions?

In-house columnist Mark Herrmann offers some thoughts on how to teach legal writing.

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I’ve come under criticism recently, either expressly or implicitly.

I tell new lawyers to write in short sentences.

Very short.

My preferred writing style is “Modern American Snowplow.”

Others insist that I’m too strident. Mark Osbeck, who teaches legal writing at The University of Michigan Law School, has published a law review article (it’s the fourth one down) criticizing The Curmudgeon’s Guide To Practicing Law because my book over-emphasizes the need for short sentences.

I have two reactions. First, thank you! Let’s debate these issues in public! And, so long as you spell my name right, you’re doing us both a favor!

Second, I’m right, and you’re wrong! Why? Because I’ve never in my life reviewed the work of a new lawyer and thought: “This draft would be pretty good if only it used a bunch of longer sentences. The cure to what ails this brief is to add some complexity to it.” If you were honest with yourself, Professor Osbeck, you’d admit that you’ve never seen that, either. On the other hand, both you and I frequently see sentences that desperately need to buy a period. So what should we teach — the rule or the exception?

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I have of course encountered a few new lawyers who write perfectly well. Their briefs are well-organized; their paragraphs coherent; their sentences of appropriate length. And I would never insist that people who were doing a nice job hack up their sentences to conform to my brutal (or brutalist) style. If your sentences are okay, let’s leave them alone.

But good writing is the exception, not the rule. Over and over and over again, we encounter new lawyers whose sentences are too long — either run-on in the precise sense of that word or grammatically correct but too long to pack any punch. The usual advice that new lawyers need is to shorten sentences. So that’s the advice that I give in my book. (Here’s a link to the chapter that provides that advice; just click on the “sample chapter” that the ABA offers free online.) I also used extraordinarily short sentences in that chapter so that readers would realize that it’s possible to live by the rules I articulated. I both stated my rule and poked fun at myself by over-employing it.

What’s my point? Teach the rule, not the exception! If everyone follows the rule, the exception will take care of itself (the few times that becomes necessary).

I have the same reaction to a recent publication that levels implicit criticism at folks (like me) who tell new lawyers not to use the passive voice.

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Why? Because many, many lawyers unthinkingly use the passive voice in their briefs and thus undercut the effectiveness of their work. For every thousand times that I’ve told a new lawyer not to use the passive voice, it’s hard to think of one time when I’ve asked someone to revise a brief by adding more passive voice.

That’s not to say that one should never use the passive voice; passivity has its place. Sometimes I want to conceal the identity of an actor. If I were defending a murder suspect, the active construction might seem a bit harsh: “My client allegedly murdered the victim at midnight.” Somehow, the passive voice seems helpful there: “The victim was allegedly murdered at midnight.” Ambiguity can occasionally be a friend. (In the words of Sir Thomas More in A Man For All Seasons: “I trust I make myself obscure.”)

In other contexts, the passive voice better emphasizes a point you’re trying to make. For example, you could end a brief in the active voice: “Accordingly, this Court should grant BigCo’s motion for summary judgment.”

Or you might prefer to emphasize the motion, not the court, and to close your brief with the most important word: “granted.” A talented writer might thus choose the passive construction: “Accordingly, BigCo’s motion for summary judgment should be granted.” That’s not a bad choice.

(Back when I was a partner at a law firm, I imposed my stylistic choices on briefs for which I was ultimately responsible. I thus might have changed, “This Court should grant,” to “BigCo’s motion . . . should be granted.” I would never do that in my (relatively) new role as an in-house lawyer reviewing briefs written by outside counsel. Thus, outside counsel writes, “This Court should grant”? Fine. Outside counsel writes, “BigCo’s motion . . . should be granted”? Fine. Outside counsel writes: “Accordingly, for the reasons set forth in our opening brief as well as the reasons set forth herein, defendant BigCo respectfully requests that . . .”? I’m getting out the pen and eliminating the unnecessary words. Life is short. The judge is impatient. If you write like this, then the body of your brief was already too long and complicated to begin with. And no one in the history of the world has ever lost a motion for failing to tell the judge that he’d like to win for the reasons he set forth in his two briefs explaining why he should win.)

Even though I understand the occasional utility of the passive voice, I’m still disappointed to see George Gopen explaining to folks in a recent issue of Litigation, “Why The Passive Voice Should Be Used And Appreciated — Not Avoided.” Of course that’s correct (and a very cute title for an article). But that teaches the exception, not the rule! Let’s get people to use the active voice first, which is right about 99 percent of the time. Then, once everyone’s trained, we’ll whisper to the good students that there are occasional exceptions to the rule. (We’d never admit this to the mediocre students; if we told them there was an exception, we’d be back in passive-voice city.)

I feel the same way about “which” and “that.” Here’s the rule: If you have a choice between “which” and “that,” use “that.”

You’ll be right 99 percent of the time, and, if you’re wrong, I’ll fix it.

If a competent new lawyer asks me to explain when to use “which” and when to use “that,” then I’ll of course explain the distinction. But I’m sure not going to publish an article explaining that “which” is occasionally the correct choice; once we give the bad students that freedom, we’ll be tearing out our hair as we spend the rest of our lives which-hunting.

I don’t disagree with people who say that long sentences can be elegant and the passive voice has its place.

I disagree only with teaching exceptions to a world that desperately needs rules. (Perhaps Osbeck and Gopen are in fact trying to teach exceptions; if so, I apologize for criticizing them publicly. To my eye, their articles didn’t feel that way.)

Let’s first teach the rules that virtually everyone ignores, and let’s teach the exceptions, if at all, only later and to the very finest students.

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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