THE LEGAL WRITER BY GERALD LEBOVITS

GERALD LEBOVITS is a judge of the New York City Civil Court, Housing Part, in Manhattan. He thanks court attorney Alexandra Standish for assisting in researching this column. His e-mail address is [email protected].

Do’s, Don’ts, and Maybes: Legal Writing Do’s — Part II

n the last column, the Legal Writer with more than 25 words is hard to Versus: “Bill’s a good worker, but he discussed 13 things you should do digest. Each sentence should contain drinks.” Start and end with power. Iin legal writing. We continue with one thought and about 15–18 words. Bury less important information in the our list of the next 13 do’s. Together the A paragraph should rarely be longer middle. The best writing doesn’t rely columns are a double baker’s dozen of than six sentences. It shouldn’t exceed excessively on conjunctive adverbs like legal writing’s do’s — the things writ- one thought and two-thirds of a dou- “additionally,” “along the same lines,” ers should love. ble-spaced page or 250 words, which- “furthermore,” “however,” “in addi- 14. Love Small-Scale Organization: ever is less. Varying sentence and para- tion,” “in conclusion,” “moreover,” Paragraphs. Paragraphs are the build- graph length makes your writing spicy “lastly,” and “therefore.” If the logic ing blocks of writing. Start each para- and more readable. When in doubt, and movement of your ideas are clear, graph with a topic or transition sen- shorter is better. Reserve one-sentence your reader connects thoughts without tence. A topic sentence introduces paragraphs for those sentences that needing artificial transitional devices what you’re going to discuss in your must have great emphasis. If you use that impose superficial logic. paragraph. Every sentence in each too many one-sentence paragraphs, the 17. Love Simple Declarative paragraph must relate to and amplify emphatic effect will be lost. Also, too Sentences. Don’t write convoluted your topic sentence. One way to have many short sentences or paragraphs in sentences. Each sentence should con- a topic sentence is to take the last rapid order is angry-sounding, choppy, tain a subject, a verb, and an object. sentence of a paragraph and put it and distracting. Put the subject at the beginning of onto the next. A transition sentence To see your “average words per most sentences. Examples: “The court links the end of one paragraph to the sentence” on WordPerfect, go to “File,” . . . .” “Defendant . . . .” “The witness start of the next paragraph by linking then “Properties,” and then “Word . . . .” Use a short subject. Put the verb or repeating a word or concept. Use Count.” On Microsoft Word, you have immediately after the subject. Don’t transitional devices to divide para- two ways to see your “words” and put words between the subject and graphs and to connect one paragraph “paragraphs.” Go to “Tools,” then the verb: keep your subjects next to to the next when a paragraph becomes “Word Count,” or go to “File,” then their verbs. Examples: “The court held lengthy. The best transitional devices “Properties,” and then “Statistics.” . . . .” “Defendant fled . . . .” “The wit- join paragraphs seamlessly. End your 16. Love Small-Scale Organization: ness explained . . . .” Misplacing your paragraph with a thesis sentence that Sentences. Start sentences with famil- subject, not keeping your subject next summarizes and answers your topic iar, less important information. End to your verb or object, or placing quali- sentence. Don’t restate your topic sen- sentences with new, more important fying or descriptive information before tence. Every sentence in the paragraph information. The best writing repeats the main subject and its verb (“front- should lead to the conclusion set out in in the beginning of the second sentence loading”) are common errors that lead the thesis sentence. Each sentence must concepts, names, phrases, and words to lack of clarity. relate to the next, to the one before it, taken from the end of the first sentence. Don’t begin every sentence with a to the topic sentence, and to the thesis Transition from sentence to sentence subject. From time to time substitute sentence. Topic sentence: “Defendant by going from old to new, from simple subjects with subordinate clauses, also lied about his relationship with ABC.” to complex, from short to long, or called dependent clauses, to assure flow Thesis sentence: “The court should reject from general to specific. The strongest and to rank ideas by importance. Then defendant’s testimony as incredible.” emphasis is at the end of a sentence. place the main idea in the main clause, Transition sentence: “Defendant also The second strongest is at the begin- after the dependent clause. A subordi- lied about his relationship with XYZ.” ning of a sentence. The least emphasis nate clause begins with a subordinate 15. Love Appropriate Paragraph is in the middle of a sentence. Example: conjunction (“after,” “although,” “as,” and Sentence Length. A sentence “Bill drinks, but he’s a good worker.” CONTINUED ON PAGE 53

64 | June 2007 | NYSBA Journal THE LEGAL WRITER CONTINUED FROM PAGE 64 “because,” “before,” “if,” “though,” The active voice is concise; the passive, “until,” “when,” “where,” or “while”) wordy. The active voice is always honest; or a relative pronoun (“that,” “which,” “who,” “whoever,” or “whom”) and the passive is sometimes dishonest. will contain a subject and a verb. For variety, begin sentences occasionally with “after,” “although,” “as,” “as if,” lawyer.” If you see a “by,” you’ll see a Gender-neutral language focuses read- “as long as,” “because,” “before,” “if,” single passive. ers on content. A writer’s goal is to “though,” “until,” “when,” “where,” Use single passives only to dovetail emphasize content, not style. or “while.” or to end a sentence with climax. To The first way to make language gen- Not every sentence should be dovetail is to connect sentences. To cli- der neutral is to make the antecedent simple. A few should be compound, max is to end a sentence with empha- plural: “A law clerk can’t be careless. complex, or compound-complex. sis. One dovetailing technique is to She must be meticulous and precise.” Compound sentences contain two move from old to new. Active example: Change “a law clerk” to “law clerks” independent clauses: the clauses are “Mr. Smith wrote the brief. Mr. Smith and “she” to “they” to eliminate the linked with a semicolon, or they are is a strong writer.” Dovetail examples: sexist language. Becomes: “Law clerks linked with a coordinating conjunc- The brief was written by Mr. Smith, can’t be careless. They must be meticu- tion. Example: “New York City is fun who is a strong writer.” Or: “The brief lous and precise.” The second way is and exciting, but it doesn’t compare to was written by Mr. Smith. Mr. Smith is to rephrase the sentence to eliminate Montréal.” Complex sentences contain a strong writer.” Climax example: “The the pronoun: “She who can’t handle a main, independent clause and at ground was shaken by an earthquake.” the work should find another job.” least one dependent clause linked by The word “earthquake” brings about Becomes: “Anyone who can’t handle a subordinating conjunction. Examples: the climax; the words “the ground” the work should find another job.” “A “Although Montréal is a fun town, I aren’t that important. The active ver- waiter likes his customers to be gener- don’t visit often enough.” Compound- sion is less interesting than the passive ous.” Becomes: “A waiter likes gener- complex sentences contain at least two version: “An earthquake shook the ous customers.” The third way is to independent clauses, and at least one ground.” repeat the noun. “A police officer will dependent clause, all somehow linked. Sometimes blank passives hide be here soon. He’ll help you.” Becomes: Example: “New York City is fun and what’s important but harmful. Using “A police officer will be here soon. The exciting, and so is Montréal, but New blank passives to conceal information officer will help you.” The fourth way York City doesn’t compare to Montréal, is unethical. Example: “Mistakes were is to use the second-person pronoun: although I don’t visit Montréal often made.” In this sentence, you don’t “you,” “your,” or “yours.” “He who enough.” know who made the mistakes. Becomes: can write should apply for the job.” 18. Love the Active Voice. Prefer the “Attorney Abe made mistakes.” Becomes: “If you can write, apply for active voice to the passive. The passive Example: “The suspect was read her the job.” voice comes in two forms: single pas- Miranda rights.” The problem with this Eliminate all sexist language. Use sives and blank passives. Blank pas- sentence is that you don’t know who gender-neutral parallel language: Write sives are sometimes called double or read the suspect her rights. Write it in “husband and wife,” not “man and nonagentive passives. A single passive the active voice instead: “Officer Jones wife” or “man and woman.” Delete occurs when a sentence is converted to read the suspect her Miranda rights.” the suffix “-man.” Use “Assembly object, verb, subject from subject, verb, Exceptions: Use blank passives if you Member” not “Assemblyman”; “Chair” object. The blank passive hides the sub- don’t know who the subject (actor) is not “Chairman” or “Chairperson”; and ject. The active voice lets readers know or to de-emphasize an irrelevant or “Police officer” not “Policeman.” Avoid who did what to whom, in that order. obvious subject (actor). the suffixes “-ess” and “-trix.” Use The active voice is concise; the passive, 19. Love Gender-Neutral Language. “executor,” not “executrix”; “prosecu- wordy. The active voice is always hon- Gender neutrality isn’t about political tor,” not “prosecutrix.” Eliminate mas- est; the passive is sometimes dishonest. correctness. It’s about thinking and culine terms: “humanity,” not “man- People think in the active voice, not writing in a nondiscriminatory way. kind”; “made by hand,” not “man- the passive. Active voice: “The lawyer Sexist language is bad because it’s made”; “average person,” not “com- wrote the brief.” This sentence goes offensive and degrading. It’s discrimi- mon man.” Don’t use clumsy variants from subject, to verb, to object. Single nation in print. Sexist language is also like “s/he/it,” “s/he,” “(s)he,” “he passive: “The brief was written by the bad because it focuses readers on style. or she,” or “him or her,” or alternate

NYSBA Journal | June 2007 | 53 between “he” and “she.” Never write only in a newspaper headline. Use The appellate court held that the lower ungrammatically to solve a gender double quotation marks to set off or court “should have denied the sum- issue. Incorrect: “A gourmet likes their define a word or phrase and to repeat mary-judgment motion.” coffee black.” Correct: “Gourmets like speech. People don’t like to read quotations. black coffee.” All quoting must be accurate. Tempt them. Introduce the quotation 20. Love Good Quoting. To quote Always proofread your quotation from with a lead-in, weave the quotation into or not to quote — that’s the question. the original source to assure perfect the sentence, or use an upshot to para- Quoting shows readers you’re reliable: quoting, letter for letter, comma for phrase the meaning of the quotation. The reader needn’t consult the source comma. Show if you’ve altered, added, Lead-in: “As the prosecutor explained, to confirm your argument. or deleted language. Use brackets “[]” ‘The defendant bought a gun.’” Weave: “The prosecutor explained that defen- dant ‘bought a gun’ before he commit- Readers think that if you’ll cheat on rules, ted the crime.” Upshot: “The prosecu- tor explained that the defendant pur- you’ll lie about the record or not cite chased the murder weapon before he committed the crime: ‘The defendant controlling authority. bought a gun.’” 21. Love and Follow Rules. Readers Quoting is good if done reasonably. to show alterations or additions to a think that if you’ll cheat on rules, Quote essential things you can’t say letter or letters in a word. Alterations: you’ll lie about the record or not cite better than the original. Quote authori- “Substantially” becomes “Substantial[].” controlling authority. Your credibility tative sources. If a case, contract, or “Substantial” becomes “Substantial[ly].” — essential to legal writing — will van- statute is in dispute, quote it. Quote to “Substantially” becomes [s]ubstantially.” ish. If you’re submitting a document to eliminate any suggestion of plagiarism. “Substantlly” becomes “substant[ia]lly.” a court, follow the court’s rules about Then quote only what’s helpful or Additions: “The judge did [not] like to page length, table of contents, font, necessary. Quoting excessively makes make jakes [sic] in court.” When quot- paper color, and number of copies you your document look choppy and you ed material contains a spelling, usage, must submit. It’s easy to comply with look lazy. Excessive quoting doesn’t or factual error, use “[sic],” meaning these rules; many courts publish their substitute for analysis. Paraphrase and “thus,” after the error to show that the rules on their Web sites. Make sure in explain instead, and cite the source. error is in the original. If the context particular to follow the rules of the Don’t use block quotations (also makes it clear that the error was in judge who’s presiding over your case. called blocked or set-off quotations) the original, don’t add “[sic].” If you Your office might have its own rules on unless you’re quoting important parts overuse “[sic],” the reader will believe style and format. Follow them, too. of a statute, contract, or critical test you’ve used the quoted material only 22. Love Good Format. Write for from a case. The Legal Writer recom- to highlight the error. To prevent over- the ear, not the eye. But create easy-to- mends that quotations of 50 words or using “[sic],” alter the quotation or read documents. Presentation always more be double-indented. Others sug- paraphrase it. counts. Readers need plenty of white gest blocking quotations of three lines Use ellipses to show omission. Use space on a page. Your margins should or more. Single-space block quotations, three-dot ellipses (“. . .”), all sepa- measure at least one inch, up to 1.25 but double space between block para- rated by spaces, to show omissions of inches, on the bottom, sides, and top. graphs. Never end a paragraph with a punctuation or one word or more in Indent your paragraphs one tab from block quotation. The Tanbook — New the middle of the sentence. Use four- the margin. The Legal Writer prefers York’s Official Style Manual — recom- dot ellipses (“. . . .”), all separated by single spacing, although many court mends that you use double quotation spaces, to show omissions at the end rules require double spacing between marks (“ ”) around the entire block of a sentence if (1) the end of the quo- paragraphs. The Legal Writer prefers quotation. The Bluebook advises not to tation is omitted; (2) the part omitted two spaces between sentences, not just surround the block quotation with quo- isn’t a citation, a footnote, or an end- one space. If you’re writing an article tation marks. The Legal Writer recom- note; and (3) the remaining portion is for publication, for example, editors mends using double quotation marks an independent clause. Unless all three will convert to one space between sen- around the block quotation. They make criteria are satisfied, use a period, not tences. The Legal Writer also prefers it easier to see quotations, especially in an ellipse. Don’t use ellipses before right-ragged margins to fully justified documents published online. the portion you quote. Example: The ones. Don’t create a kaleidoscope of Use single quotation marks (‘ ’) appellate court held that the lower colored or highlighted text. Choose one around a quotation within a quotation. court “. . . should have denied the font and stick to it. The Legal Writer Otherwise use single quotation marks summary-judgment motion.” Becomes: recommends Times New Roman or any

54 | June 2007 | NYSBA Journal font with the word “book” in it, with judges use the New York Law Reports — at the beginning of the parentheti- 12- or 13-point font size. Italicize case Style Manual (Tanbook),1 prepared by cal explanation: “citing,” “comparing,” names. Don’t underline and italicize the New York Law Reporting Bureau.2 “distinguishing,” “finding,” “holding,” at the same time. Number each page Make it easy for the court to rule for or “noting.” Example: A v. B, 3 N.Y. (suppress the first page) unless you’re you. Use the Tanbook when you write 123, 125 n.4, 55 N.Y.S.2d 231, 234 n.4, writing an affidavit or an affirmation, for New York courts. The Bluebook 1 N.E. 456, 457 n.4 (1981) (holding that then number your paragraphs. Get rid and ALWD are brilliant documents. But landlord may take for personal use of orphans and widows. An orphan is their recommendations on how to cite one or more apartments in building a single word or phrase at the end of a New York authorities are always wrong; if landlord shows good faith at trial). paragraph or page. A widow is a single and the Tanbook is always right. Pinpoint even if your proposition is on word or phrase appearing alone at the Citing well makes you credible. It the first page: E v. F, 16 Misc. 61, 61, 18 top of a page. tells readers to trust you and your writ- N.Y.S 75, 75 (App. Term 2d & 11th Jud. 23. Love Official Citations. Always ing. Use the correct volume, reporter, Dists. 2d Dep’t 1961) (per curiam). The cite the official version when you cite a page number, and case name. Accurate same applies if your authority has only New York case to a New York court. The citations help readers find propositions one page. court system gives most judges only fast. Give a full citation in each new One good citation is enough. Don’t the official reports; official citations section of your document before you string cite obvious or threshold matters. are more accurate than unofficial ones; give a short-form citation; then always Limit string citing to three cases except and CPLR 5529(e) requires lawyers to use the short-form citation in that sec- when you must document the sources use official citations in appellate briefs. tion of your document. Use signals to necessary to understand authority or Prefer the New York Reports and its introduce citations. No signal is neces- a split in authority. Separate different Second or Third Series (N.Y., N.Y.2d, sary after a quotation or if the citation authorities by semicolons. Never cite N.Y.3d) to West’s North Eastern Report supports your proposition directly. Use headnotes and syllabuses. and its Second Series (N.E. or N.E.2d) “contra” if your citation contradicts 25. Love Deadlines. Submit court or West’s New York Supplement and your proposition directly. Use “see” if documents on time. If you need more its Second Series (N.Y.S. or N.Y.S.2d); your citation supports your proposi- time, ask the court in advance, not after the New York Appellate Division tion indirectly or by inference. When the document is due. If your boss gave Reports and its Second or Third Series you use “see,” explain in the text or in you a deadline, follow it. Adhering to (A.D., A.D.2d, A.D.3d) to West’s New a parenthetical following the citation deadlines shows that you’re profes- York Supplement and its Second Series why the citation supports your propo- sional and responsible. It shows that (N.Y.S. or N.Y.S.2d); and the New York sition. Use “but see” if your citation you respect and value someone else’s Miscellaneous Reports and its Second contradicts your proposition indirectly. time. If you gave yourself a deadline, or Third Series (Misc., Misc. 2d, Misc. Use pinpoint (jump) citations. This follow it, too. 3d) to West’s New York Supplement and forces you to read the authority so that 26. Love Visuals. Paint visuals for its Second Series (N.Y.S. or N.Y.S.2d). you’re certain your authority supports the reader. Attach to your legal docu- Use West’s unofficial reports, but not your proposition fully; it also helps ment the authority you’ve cited if the instead of the official citations. In New you find other citations and arguments. authority is unpublished. If you’re York, it’s unnecessary to give parallel Pinpointing tells readers that you’ve submitting a document to a trial court, citations. If you do, always cite and use read the case and know the material. attach the leading cases even if the the official citation (N.Y.3d, A.D.3d, It also prevents readers from rummag- cases are published or available on Misc. 3d), if available, in addition to ing through an entire document to find Westlaw or LEXIS. Highlight the rele- the unofficial citation. Use commas to your point. When citing cases or sec- vant text in the attachment. Download separate parallel citations. ondary authorities, use pinpoint cita- photographs and include them in the 24. Love Good Citing. Readers love tions down to the footnotes. Use the document. Create graphs and charts if proper citation. It doesn’t take long to correct court and year to tell the reader you can. Attach them in an appendix look up the rule in the Bluebook, now in whether your authority is binding or and explain them in the text. its eighteenth edition, or in ALWD, the persuasive. Mention in a parenthetical In the next two columns, the Legal Association of Legal Writing Directors after your citation whether the opin- Writer will discuss legal writing’s 26 Citation Manual, now in its third edi- ion is a memorandum, per curiam, en don’ts. ■ tion. The Bluebook has been around banc, dissent, concurrence, or plural- since 1926. Most lawyers, law journals, ity opinion. Mention whether leave or 1. See http://www.courts.state.ny.us/reporter/ New_Styman.htm (last visited Apr. 20, 2007). A new and Moot Court competitions use the certiorari was granted or denied. Use edition of the Tanbook will be released sometime in Bluebook. Some law school legal-writ- parenthetical explanations to clarify the latter part of 2007. ing programs use ALWD as an anti- authority. Use lower-cased gerunds — a 2. See http://www.courts.state.ny.us/reporter dote for the Bluebook blues. New York verb used as a noun that ends in “-ing” (last visited Apr. 20, 2007).

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