In-House Counsel, Litigators

4 Edits I Have Never Made

What edits has columnist Mark Herrmann never made to a brief over the course of three decades practicing law?

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I have revised an awful lot of briefs in my life.

I clerked for a year; worked as a litigation associate at a small firm for five years; worked first as an associate (for three years) and then as a litigation partner (for 17 years) at one of the world’s largest firms; and have now served as the head of litigation at a Fortune 250 firm for the last five years.

I repeat: I have revised an awful lot of briefs in my life.

There’s been a world of variety in the substance of briefs that I’ve revised. Labor law, First Amendment cases, commercial disputes, product liability cases, tax spats, securities fraud, insurance and reinsurance matters, IP cases; you name it.

But there’s been almost no variety in the revisions that I’ve made to briefs.

As I’ve ranted before, I’ve spent my decades generally making all the same changes to draft briefs.

So I’m not going to list here the usual edits that briefs need. I’m going to do the opposite: What edits have I never made to a brief over the course of three decades practicing law?

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First: I have never lengthened a sentence for the sole purpose of making the sentence longer.

I have shortened many, many sentences in my life. Many.

And I confess that I’ve occasionally lengthened sentences. If a sentence needed an extra word to convey a thought; or the writer accidentally dropped the word “not”; or two sentences were so closely related that one might prefer using a semi-colon, rather than a period, to separate them, I’ve lengthened sentences.

But I’ve never looked at a sentence and thought, “If that sentence were only a little longer, it would be better. We should add some more words to the sentence to improve this brief.”

On the other hand, I have shortened thousands — perhaps tens of thousands — of sentences solely for the purpose of shortening them: “This writer desperately needs to buy a period. That sentence runs on for five typed lines, and no human being of ordinary intelligence could possibly remember by the time he reached the end of the sentence how the sentence had begun. I’m going to find a place to stick a period or two in this monstrosity and thus increase the chance that the written words actually convey meaning to the reader.”

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Think about that, please: I have never in my life lengthened a sentence solely for the sake of lengthening it.

Never.

But I have, over and over and over again, shortened sentences solely for the sake of shortening them.

Shouldn’t that tell us something?

Second: Same deal for paragraphs.

I have shortened many, many paragraphs in my life. Many.

And I confess that I have occasionally deleted paragraph breaks and thus lengthened paragraphs: When two very short paragraphs discussed related ideas, I’ve sometimes merged the two to improve the flow of a brief.

I’ve also deleted paragraph breaks when a court-imposed page limit prohibited me from putting any text beyond the 15th page, and the near-final form of my brief ran 16 1/4 pages.

But I’ve never looked at a brief and thought: “Hey, that paragraph runs only a third of a page. I bet that puppy would be more persuasive if we deleted a few paragraph breaks and let a single paragraph linger over the course of several pages. That would certainly strengthen this.”

Never.

Third: I have never substituted a longer word for a shorter one solely for the purpose of adding complexity.

I have substituted little words for big ones many, many times in my life. Many times.

And I confess that I have occasionally looked at a word and thought, “That word doesn’t express the precise idea that we’re trying to convey. This other, longer word is more accurate, so I’ll suggest substituting the better word.”

But I have never looked at a word and thought, “That word is much too simple; it’s just a few letters long. The brief would sound more erudite if we used a fancy word instead of the little one. Let’s change ‘got out of the car’ to ‘exited the vehicle.’ That will make readers think that I’m a smart guy.”

Never.

Fourth, I have rarely substituted passive voice for active.

I have substituted active voice for passive many, many times in my lie. Many times.

Not: “The expert was retained by BigCo.” Instead: “BigCo retained the expert.”

The active voice eases the reader’s burden.

I made this the last item in my list because I have occasionally changed active voice to passive to improve a sentence, so this rule is not an unbreakable one. (I can’t finish this section of my column with the word “never” set off as a stand-alone paragraph. I know that disappoints you.)

When might I prefer the passive voice? You could end a brief one of two ways:

This court should therefore grant BigCo’s motion for summary judgment.

Or:

For these reasons, BigCo’s motion for summary judgment should be granted.

An active-voice purist would prefer the first version: It identifies the actor — “this court.”

But someone thinking about persuasion might prefer the second alternative: It closes the brief with the powerful word “granted,” which is, after all, the result you’re after. Ending the brief with that word is not a crazy choice.

And that example is not alone. Duke Professor George Gopen published an article in Litigation last year (cleverly titled, “Why the Passive Voice Should Be Used and Appreciated — Not Avoided”) that explained a few other situations that justify using the passive voice. That’s a good article. My only objection to Professor Gopen’s piece is that the article teaches the exception, not the rule: Almost everyone (1) doesn’t know the difference between the active voice and the passive, (2) doesn’t appreciate why active voice is preferred about 99 percent of the time, and therefore (3) routinely uses the passive voice when active would be better.

So I prefer to teach the rule: “Don’t use passive voice! Use the active voice! If I think that passive is better, I’ll fix it.”

I concede that there’s one hermit on a mountaintop somewhere who absolutely insists on eliminating the passive voice from everything he writes, and that hermit requires a little bit of education and a nudge. Professor Gopen can teach that hermit.

But I must teach the masses. Trust me: The masses do not under-use the passive voice.

We’ve got briefs to get out the door. Use the active voice!

I fear that my last point was too complex. Maybe I should’ve stuck to the first three: I’ve never in my life gone out of my way to lengthen a sentence, lengthen a paragraph, or substitute a two-dollar word for a two-bit one.

Think about that. It reflects decades of experience. Maybe there’s a lesson tucked in there.

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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