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Legal Writing—Editing for Readability

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Legal Writing—Editing for Readability

A quiet revolution is afoot. With every passing year, the legal world becomes increasingly dependent on technology. Changes have been coming for decades: computers have replaced typewriters; electronic filing has replaced hand‑delivery; and trial presentation software has replaced exhibit binders. Utilizing technology can improve your legal writing. This presentation introduces you to one easy-to-use tool that will help improve your legal writing and editing.

Transcript

- In this presentation, we're going to discuss Editing for Readability. A Quiet Revolution is Afoot. With every passing year, the legal world becomes increasingly dependent on technology. Changes have been coming for decades. Computers have replaced typewriters, electronic filing has replaced hand delivery, and trial presentation software has replaced exhibit binders. Although some judges still print and review briefs in hard copy, many primarily read briefs on tablets or laptop computers. Despite these changes, many lawyers produce briefs the old-fashioned way, ignoring technological advances that could improve the writing and editing process. Utilizing technology to edit your briefs will improve your legal writing. There are a myriad of such technologies. This presentation focuses on a single technology you can use to write and edit briefs, motions, and other legal filings. In this presentation, you will learn, first, why readability matters. Second, what makes writing readable? Third, how to measure the readability of your writing. Fourth, how to improve the readability once you've assessed it. And fifth and finally, some editing tips for enhancing the readability of everything you write. Why does readability matter? Readers, including judges, prefer writing that is clear, concise, and engaging. Ideally, your brief should meet this preference. Briefs perform multiple different functions. They convey legal argument. Where the court denies oral argument on a motion, they can be the advocate's only means of communication with the court on an important legal issue. Your brief even suggests information about you as a person and as an advocate. Most judges consider those advocates who write readably to be more reliable. Both the law clerk and the judge will repeatedly reference and rely upon your brief, even where oral argument is granted. The brief alone can shape the court's decision. Moreover, skilled lawyers adapt their writing to the intended audience. Legal writing is effective when the audience can understand the writer's message and use that information to facilitate legal decision-making. Writing that is readable by your intended audience is effective writing. Remember, you are not only addressing the judge when you write, who presumably has significant legal experience, but also a law clerk who may have little experience. A skilled lawyer writes a brief that is pleasing and useful to the judge but comprehensible and just as useful to the law clerk. The key to satisfying these two very different audiences is readability. If your brief is readable, you need not simplify the substance. You can present that substance in the clearest possible style. In fact, using a readable writing style may effectively communicate more sophisticated substance than what otherwise might be possible. Let's talk about readability as a concept. The term readability means the subtotal, including all of the interactions of all of those elements within a given piece of printed material, that impact the success a group of readers will have with the piece. How do we define success? Success is the extent to which the readers understand the written material, read it at an optimal speed, and are able to find it interesting. Readability and reading comprehension are two distinct concepts that do have some interplay. They do interact with each other. So let's talk about readability and reading comprehension. In plain language, readability describes a written text's level of difficulty. Readability rates a text's complexity in terms of word choice, sentence structure, and paragraph length. Using these criteria, you can estimate the education level that is typically required for a person to read that text without significant difficulty. For example, you can take a book and analyze the text of a book and determine what grade level of student could easily read and understand that book based upon its objective qualities. Reading comprehension is a little bit different. Reading comprehension, in contrast, depends on both a text's complexity but also the reader's own characteristics: the reader's intelligence, the reader's background, the reader's education. It measures whether a reader can understand a text's intended meaning and draw the correct conclusions from it. How do these two concepts relate? Readability and reading comprehension are intertwined concepts. Many readers can comprehend a readable text, but the author significantly controls only one of these two factors. You can't control the reading comprehension of the readers of your legal brief. You have no control over whether or not the law clerk who's reading your brief is new to the practice of law, recently graduated law school, is unfamiliar with the subject matter that your brief addresses, none of those things are within your control. The readability, which is just based on the text of the writing, is within your control. So as I said, readability and reading comprehension are related, but you only control one of the two. Revising and editing can impact the readability of your brief and is entirely within your control. Whether the clerk and, in fact, even the judge will comprehend the argument in your brief is less under your control. Your reader's level of comprehension is already fixed when they pick up the brief and when they receive your argument. There's nothing you can do about that and you may not even know. Consequently, it's particularly important to evaluate the readability of your briefs prior to filing. Regardless of who reads a brief, you as the drafter, you as the author can make conscious decisions about things like word choice, sentence structure, and paragraph length. As an advocate, you cannot control the law. As an advocate, you often do not control the facts, and as an advocate, you do not control the knowledge level, experience, focus, or stress level of law clerks and judges. You can, however, control how readable your brief is, contouring it to the specific needs of your audience and conveying information in a coherent, effective manner. Readability actually improves the success of litigation. This is because effective writing is accessible. A complicated or lengthy text will lose the reader. A simple text invites the reader in. Assessing readability and scoring as you write and edit allows you to determine whether you are communicating your ideas as clearly, concisely, and accessibly as possible. When your brief is more readable, the law clerk and judge will continue to read it. They'll pick it up again and again. They'll use it as the basis when they draft their bench memo or draft their opinion, and they'll engage with the text by agreeing or disagreeing with your text's thesis or by reading your text and proposing new arguments. In other words, readable briefs cause the law clerk and judge to think. It's important to also consider whether or not your brief is preserving issues for any necessary subsequent appeal. If your brief is so unclear that the issues in it cannot be derived simply from the face of the text, you may not properly preserve the record on appeal to raise issues that are decided against your client later. So there are professional responsibility reasons why readability is important. So how does readability impact success? Well, unfortunately, there aren't that many published studies about legal writing and readability, and of the few published studies that exist, most are on the appellate level, and the appellate level is probably uniformly different than the trial court level in terms of workload, in terms of experience level of judges and clerks. So likely, some of the takeaways from studies of appellate texts are not necessarily directly applicable when it comes to trial court level briefs and legal writing, but there is evidence to suggest that readability does impact success. I'm going to talk about a few studies. There are certainly others out there. One is by Adam Feldman. It's published in the "Denver Law Review." It's called "Counting on Quality: The Effect of Merits Brief Quality on Supreme Court Opinion Content." And what Feldman found is that there was a statistically significant relationship between the readability of briefs that were filed with the Supreme Court and two things: both the actual outcome of the case, more readable briefs had a statistically significant likelihood of having the Supreme Court find in favor of the brief writer's client, but also the percentage of the language of the brief that was adopted in the opinion. So the more readable briefs were, the more likely they were to be quoted or used in the drafting of the ultimate Supreme Court opinion. Why does this matter? Well, this is evidence that not only were more readable briefs easier for judges to understand. They persuaded judges and judges liked them enough to go back to them more frequently and use those briefs in drafting opinions. Another study was done by Lance Long and William Christensen, published in the "Journal of Appellate Practice and Process" and it was entitled, "Does the Readability of Your Brief Affect Your Chance of Winning an Appeal?" And they didn't look exclusively at Supreme Court briefs, but rather, they looked at other appellate court briefs. They didn't find the same connection in other appellate contexts and they only looked at the outcome of the appeal, not the amount of language that had been adopted. So certainly, there is some difference of opinion. There are some studies going both ways, even at the appellate level. Now let's talk about the trial court level and what studies have been done to show how readability affects the outcome of trial court decisions. One study done by Shaun Spencer and Adam Feldman, published in the "Journal of Legal Writing," called "Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success," looked at summary judgment briefs, assessing their readability and determining whether or not there was a statistically significant relationship between the readability of those briefs and the outcome of a grant of summary judgment. That study did find a statistically significant relationship between brief readability and the outcome of summary judgment motions. In other words, there was a clear difference in the federal court sample that Spencer and Feldman took between the readability of winning and losing briefs. The more readable the briefs were, the more likely those briefs were to represent the party who won. That suggests, again, that greater readability is correlated with a greater likelihood of success. It also supports a conclusion that readability promotes comprehension. So at the end of the day, the science is not 100% conclusive that readability will always impact your likelihood of success. But here's the important takeaway. There is some data that suggests that it matters and there's really no downside to making your writing more readable. There's certainly no data to suggest that readable briefs will jeopardize your client's chances of success, and there is evidence to suggest that readable briefs can enhance your client's likelihood of success. So what are some of the problems with unreadable texts that might help explain why readability is correlated with winning legal briefs and legal arguments? Well, problems can occur when texts are not readable, because what happens is that your reader is drawn in all sorts of different directions and has to spend a lot of his or her brain power just figuring out what your brief says, which takes away from the brain power that can be used in deciding whether or not that reader agrees with the thesis of your brief or of your writing. Writing loses its impact and purpose if it's inaccessible to its intended audience. This isn't only true of legal briefs. It's true of writing in general. A contract that's loaded with legalese may result in someone signing that contract without fully understanding his or her obligations or the contract's term. In the case of journalism, a reader might just stop reading a news article and put it down if, within the first few sentences, the reader finds it too hard to read. And the same thing is true of legal writing. Remember, legal writing is not pleasure reading for the person who receives it. Clerks and judges, they're not really truly readers in the abstract sense. They're users. They're not reading your brief because they enjoy and find pleasure in the language, the way you or I might read a novel or a memoir just for the pleasure and enjoyment of the reading process. Quite the opposite. The clerk and the judge have goals when they pick up your brief. The goal is to decide the case and along the way that requires understanding the argument, understanding the facts, and understanding the law. If your brief can't help the clerk and the judge achieve their goal of deciding the case, then you've lost your opportunity to persuade, and I can tell you from personal experience as a clerk, that if I had a brief that was well-written and helpful, I would rely on that brief throughout the process of writing a bench memo or a draft opinion. If I picked up a brief that was hard to read, even if ultimately I agreed with the argument in that brief, I wouldn't reference it frequently when I was working on my bench memo or my draft opinion, because it was more effort to try to derive the argument and the law and the facts out of that unreadable brief than for me to just start from scratch doing research on my own. So you really have a missed opportunity in terms of helping your user reader, your law clerk and judge, achieve their goal when your legal brief is not readable. The clerk may just put down your brief and pick up your opponent's brief. A judge may miss the significance of the argument you are making and decide the case on other grounds. Editing for readability can prevent these unsatisfactory outcomes, and although readability tests only estimate a text's readability, just doing the readability analysis and getting a score signals to you when you may be missing the mark for your target audience. Readability is not indicative of the text's overall quality, organization, or substantive difficulty, and often those things are only somewhat within your control. If you have a very complicated patent case that involves complicated science, there's only so much you can do to simplify the substance of your brief. If you have a very, very lengthy brief with many, many subparts and there's nothing you can do to winnow it down or shorten it, there's not a lot you can do about the organization of the brief or the length of the brief. And so one thing that you can control, even when you can't control other aspects of the text itself, is the readability, and readability scores can be a helpful tool for you so that you can judge the approximate difficulty of your brief and consider efforts to reduce the difficulty as you edit your writing. Frankly, judges do care about readability, regardless of what the outcome in those studies we've talked about shows, and they say it almost every time they're asked about legal writing. For example, in a series of interviews with legal writing expert Bryan Garner, United States Supreme Court Justices confirmed his belief that clear written advocacy was important to the Supreme Court. Justice Samuel Alito said, "The first quality of a brief should be clarity." Justice Antonin Scalia said that he valued clarity above all other elements of style. These and other quotes can be found in Bryan Garner's article "Interviews with the United States Supreme Court Justices," as cited on this slide. If you agree that a responsibility of a good advocate is to meet the audience's expectations, judges have made their expectation known: be clear. And readability is the key to achieving clarity. How do you measure readability? Luckily for us, we don't have to come up with a measure all on our own. Researchers have created tests to predict the reading difficulty associated with reading different written texts. These tests typically calculate readability based on the relationship between aspects of the text, including the average number of syllables per word, words per sentence, and sentences per paragraph, and text difficulty as measured by reading comprehension and reading speed. The theory behind readability tests is that shorter words, shorter sentences, words with fewer syllables, and words that are used more frequently are easier to read than the opposite: longer words, longer sentences, multi-syllable words, and unusual or esoteric words. In other words, the less mental gymnastics that you require of your reader, the easier a piece of writing is to read and the lower the grade level that is required of a reader to comprehend the writing. Even where the subject matter is complex, a concept will be accessible to a wide variety of readers if it's presented in a readable way. Let's talk about the history of readability tests. They date back to 1975 when the United States Navy charged researcher J. Peter Kincaid and his research team with assessing the difficulty of technical navy manuals. After all, Navy manuals are of little use to sailors if those sailors read them and still couldn't understand them, didn't know how to use them to maintain safe Navy ships. The importance of readability soon leaked into other areas. In the '80s and '90s, states began to require that automobile insurance policies had to be written at a ninth grade or below reading level to make sure that insured individuals knew what they were signing up for and paying for when they got automobile insurance. In 2010, then-President Obama signed an act called the Plain Writing Act, a law that obligated federal agencies to use plain writing in public-facing documents. So there has clearly been a groundswell over time in favor of the concept of readability, not just in legal texts, but in all texts. So what does it mean for a piece of writing to be readable? Well, here are two examples of very readable texts. Dr. Seuss's book "Hop on Pop" and Abraham Lincoln's "Gettysburg Address." Why are they so simple? They're simple because they use short words, short sentences, common language, short paragraphs. But even though the "Gettysburg Address" is quite simple, few people would say that it is poor writing, that it is dumbed down, or that it's ineffective. In fact, the "Gettysburg Address" is considered by many to be a beautiful piece of writing. Do you need to write as simple as "Hop on Pop"? No, of course not, but you should try to achieve what Abraham Lincoln achieved in the "Gettysburg Address," taking a complicated and important subject matter and making it very accessible to the audience that that text is aimed at. Simplifying does help. With that in mind, let's move on to talking about how you assess readability. There are two tests for readability that are built into Microsoft Word, and you can assess the readability of your legal writing without buying any additional software. Of course, there are other tools that you can purchase that will help you assess the readability of your writing, and I'm not discouraging you from exploring those tools, but in this presentation, we're going to focus on the two tools that are free and built right into Microsoft Word. Microsoft Word contains two built-in readability tests, the Flesch Reading Ease test and Flesch-Kincaid Grade Level test. Although the two tests use the same core measurements, word length and sentence length, the tests weigh those various factors slightly differently. They also present the result of the test in a different way. The Flesch-Kincaid Grade Level formula presents the readability score as an American grade level in school, and that makes that test easier for teachers, parents, librarians, and others who interact with students to make decisions about what books and texts are appropriate for use at different grade levels. We're going to primarily focus in this presentation on the Flesch Reading Ease test, which just gives you an abstract numerical score rather than trying to link the score to a grade level in school. But if you prefer the other test, you get to the same result. If you make your text more readable using either of these test, you will improve your impact and your likelihood of success in litigation. So let's talk about the Flesch Reading Ease test. This test assesses your writing and comes up with a score at the end of the assessment. Higher scores indicate a text that is easier to read. Lower scores indicate a text that is harder to read, and it's a mathematical formula, so it should come out consistently each time that you assess a piece of writing. It considers things like how many total words are in your text, how many total sentences are in your text, how long are each of your sentences, and similar considerations about your language or your words. How many total words are in your text, how many total syllables are those words and, therefore, how long or complex or multi-syllabic are the words you're using in your writing? When you're assessing your writing using the Flesch Reading Ease score, it's helpful to know what ranges are associated with what level of difficulty in writing. As I mentioned previously, you're aiming for a higher score, and a perfect score on this test would be 100. The worst possible score on this test would be a zero. Speaking frankly, it's pretty difficult for any legal writing to score 100, so that's probably an unrealistic goal, but the higher you can score, the more readable your language is. A score of 90 to 100 reflects a text that is very easy to read, so easily understood that an average 11-year-old student could understand it. A score of 80 to 90 is still very easy to read. A score of 70 to 80 is fairly easy to read. A score of 60 to 70 is easily understood by 13- to 15-year-old students, and after that, your reading becomes much more difficult to read. A score of 50 to 60 is a text that is fairly difficult to read. A score of 30 to 50 is a text that is difficult to read, best understood by college graduates, and a score below 30 is very difficult to read and is best understood by university graduates. Now, you may be looking at this score and saying to yourself, "Well, both the clerk and the judge would've graduated university," and that's true, but you still want to aim for a readability score somewhere in the high 30s or 40s, to the best of your ability. Because remember, your clerk and your judge are very busy individuals. They likely have many, many cases on their docket. They have limited time, limited focus, limited attention, and so even if they're capable of digging in and reading something that is more difficult, at a higher level, you make their life much easier if you hand in a brief and you submit legal writing that is easier for them to read. So although it may be possible for the judge and the clerk to read a document that has a very, very low score, you should aim to try to increase the readability and get yourself out of that below-30 range, if possible. So how do these two tests work? The Flesch Reading Ease test measures the number of syllables and the number of sentences for each 100-word sample in your piece of writing. Flesch Reading Ease scores range from zero to 100. As noted previously, scores from zero to 30 indicate very difficult texts, scores from 60 to 70 indicate standard texts for the general public, and scores from 90 to 100 indicate very easy texts. The higher the reading ease score, the easier a text is to read and understand. On the other hand, the Flesch-Kincaid Grade Level test is a recalibration of the Flesch Readability Ease test. Flesch-Kincaid Grade Level test rates a text's readability on a United States grade school level. Scores from zero to 30 would equate to a college graduate reading level, scores from 60 to 70 equate to an eighth grade student reading level, and scores from 90 to 100 equate to a fifth grade reading student level. Translating these metrics into more familiar terms, "Reader's Digest" magazine has a readability index of about 65, "TIME" magazine scores in general around a 52, and the "Harvard Law Review" has a general readability score in the low 30s. Legal writing experts recommend a readability score in the high 30s, hopefully in the 40s, for legal writing. Think about how dense and complex some articles and notes in the "Harvard Law Review" are. Ask yourself whether a judge or a clerk who has a docket of maybe 100 cases has time to parse through something that dense and complicated, even if the judge or the clerk is capable of doing it. The answer is, you increase the chances that your brief will be useful to your user if you increase the readability. So how do you score readability using the term tools in Microsoft Word? If you are using Microsoft Word, you can use analytics available right in the program to help analyze the readability of any text you write. The following instructions that I'm going to discuss are for Word 2016 for Windows, but all of the different versions of these readability tools work in a similar way. If you're using a different version of Word, simply type Test your Document's Readability in the Help box in Word for instructions. The first step is to click on File at the top left of your screen once you have Microsoft Word open. Then you want to go to Options, which I've circled in red and put a red arrow next to. Then you need to toggle into the Proofing tab. Your screen should look like the one I have on this PowerPoint slide. You can see I've highlighted some areas. Under the When Correcting Spelling and Grammar in Word heading, make sure your settings look like this. With the Show Readability Statistics option checked, you'll get a readability report every time you finish a spell check, so that's important. To get your readability statistics, you have to run a spell check on your document and then the readability score pops up once the spell check is done. To run a spell check, click on Review and choose Spelling and Grammar or hit the F7 key. After the spell check concludes, Word will show you your readability report. Note that you have to run spell check in order to receive the report. Here's what the report will look like after you run spell check. You can see that there are counts of how many words, how many characters, how many paragraphs, and how many sentences, all factors that go into the readability statistics that Microsoft Word is running. You get average numbers of sentences per paragraph, words per sentence, and characters per word. You get some readability information, including how many passive voice sentences you have, and then the Flesch Reading Ease score and the Flesch-Kincaid Grade Level score. This piece of writing that I analyzed was just a few sentences long and it received a 90.9. That's an incredibly readable Flesch Reading Ease score. Nobody expects your legal briefs to score this well, but the more you can try to bring that score up, the more readable your writing is, the easier time you will have convincing the judge or the clerk. So now let's talk about how to improve your readability using these tools. My first suggestion for you is to check readability after you write. In order to do that, you're gonna sometimes have to change your general workflow and make sure that you leave time at the end for editing. My suggestion is that you get a brief completely written, you do all of the general editing that you need to do, and then you run a spell check and get your readability score. Then you should go back and change your writing given the tips that I am suggesting here, and then run the analysis again. You'll be surprised how even small changes can improve your readability score. You want to leave yourself enough time, which may be a change to your workflow process, to continually edit and score yourself, edit and score yourself, until you're truly happy and satisfied that you've made your writing as readable as possible. It's not very helpful to simply run a score and then do nothing to improve your brief. You should be using these scores as a tool as you're editing and improving your writing, and I'm going to give you several suggestions and tips for how to write in a readable way. Use these tips as you're editing and go back and score yourself until you're satisfied with the results. So what are my tips for readable legal writing? My first tip is to use shorter, simpler words. Scan through your brief, looking for any word that's over two syllables long. If you catch one, ask yourself whether a simpler or shorter word would suffice. A longer word is sometimes acceptable. A longer word is helpful when it replaces an entire phrase, when it does a lot of heavy lifting, when it's really specific and conveys something persuasively, but you don't want to use long words just for the sake of using long words. Look through the brief for any language that is legalese or jargon. Try to avoid it as much as possible. One of two things happens when you use legalese or jargon. Either you put the legalese and jargon in your brief and the reader perhaps doesn't understand it, which is a missed opportunity to persuade, or you put the legalese and jargon in your brief, and then you have to spend extra words explaining the legalese or explaining the jargon, which makes your writing longer, which makes your writing less readable. So to the extent that you can avoid legalese and jargon entirely, I highly encourage it. You also, to the extent possible, want to use simple words that convey a lot of meaning. Often that means including good, active verbs rather than bland, milquetoast verbs that are then made more exciting through the use of an adverb. The same thing is true of nouns. Using good, descriptive nouns, rather than a noun and an adjective, is more effective and will increase your readability. Any time you have a verb plus an adverb or a noun plus an adjective, you are naturally making your text less readable because you're making it longer. You're making it more complicated. Where one word would suffice, try to find that one ideal word. So here's an example of using shorter and simpler words. Before, the brief said, "Suspect Jamie Jones exited from the vehicle, departing rapidly northbound." You can see how much longer that sentence is than the improved sentence below. It's got complicated language for no apparent reason. I'd call this kind of language, quote-unquote, "cop speak." None of us, when we talk, say, "exited from the vehicle." None of us describe people running by saying, "they're departing rapidly northbound." This is probably lifted from the police report, from a law enforcement report, and it's not written in plain language. It's not written simply. Changing this into simple, plain language, using shorter, simpler words, improves the readability. Here's the after. "Jones got out of the car and ran north." It's significantly shorter, significantly clearer, significantly plainer, and far more readable. Let's move on to another tip for readable legal writing. My next tip is to use shorter, simpler sentences. Scan through your brief, looking for any sentence that is more than two lines long. Challenge yourself to do one of two things. Either reduce the number of words in that existing sentence or split the sentence into multiple shorter sentences. Look for ways to move long sentences into shorter sentences by moving information or even by presenting information in a totally different way, like a bullet point list, a summary, or a chart. They can make your writing much more readable than trying to convey that same information in a sentence or a series of sentences. So let's look at an example of improving writing using shorter, simpler sentences. Here's the before. "Petitioner's argument is spurious for multiple reasons, including but not limited to the fact that the motion was untimely, lacked merit because prevailing case law is inapposite, and was unsupported by the applicable facts of record, which support respondent's argument." That's really long and really, really wordy. Those sentences are all incredibly complex. There's some good information buried in there, but it's truly buried. This is a very unreadable sentence. It's more than two lines long, and if I was editing, I would go back to the sentence and try to improve it. Here's the after. "Petitioner is wrong for three reasons. First, the motion was untimely. Second, the motion lacks legal merit. Third, the motion lacks factual support." What did I do when I improved that sentence? I did a couple different things. One thing that I did was take this long sentence and split it into several shorter sentences. That alone improves readability, but that's not all I did. There was a structure in the before, but that structure wasn't terribly clear. This was a list of reasons, but instead of telling the reader how many reasons right off the bat, I hid the ball. I said there were multiple reasons. In the after, I don't hide the ball. I let the reader know immediately that this is going to be a list and I let the reader know how many items are in that list, not multiple reasons. In the after, it's three reasons. Then I made that structure apparent through numbering of each subsequent item in the list. First, the motion was untimely. Second, the motion lacks merit. Third, the motion lacks factual support. I made it clear through the language, first, second, and third, what the three items on the list were. I also could've used bullet points or tabs to have the three items in the list following the lead-in sentence, "Petitioner is wrong for three reasons." Either technique is more readable than the prior sentence. I also got rid of all the extra, unnecessary throat-clearing language in the prior sentence. I cut to the chase, speaking clearly and affirmatively about the facts rather than droning on and on unnecessarily. It doesn't make your writing more persuasive to have a bunch of throat-clearing legalese. It just gets in the way of the reader understanding the point of what you're saying. My next tip for readable legal writing is to avoid unnecessary and unhelpful passive voice. Now, passive voice can be intentional and effective at times, but you should be making a conscious choice to use it as a technique. It shouldn't be your default writing style. Passive voice inherently makes your writing less readable. By its very nature, passive voice lengthens sentences, because in order for something to be in passive voice, there has to be a form of the verb to be in the sentence plus the remaining information that's being conveyed. Passive voice also creates confusion for the reader by hiding the actor. So unless you're making a conscious, intentional decision to speak in passive voice, try converting passive voice to active voice. What do I mean by intentional conscious use of passive voice? Sometimes it makes sense to hide the actor. Let's say, for example, you were supposed to file a brief on behalf of your client and you blew the deadline. You then filed the brief three days late. In describing this course of events, you might want to diminish the focus on yourself while still being truthful about what happened. So this might be an instance where it makes sense to write in passive voice, to say something like, "The brief was filed," and suppress or hide that the actor who did that filing was you. So there are some times when passive voice is conscious and intentional and makes sense, but other than when you're making an intentional choice to use passive voice, you should avoid it. Here's an example of revising a sentence from passive voice to active voice. The before says, "The brief was filed 10 days after the filing deadline." Now, as I noted, when you're the one who was late filing, you might want to use passive voice to hide the actor. But when it's the other side who was late filing the brief, it's actually against your interest to hide the actor and it makes the sentence harder to read. So here's the after, assuming that we're the plaintiff in this case. "The defendant filed the brief 10 days after the filing deadline." Now, you'll notice that the after sentence is a little bit longer, but it's much more clearer, and I think in the long run it'll actually save you some words because in subsequent sentences talking about the chronology of what happened, you won't have to then introduce the fact that this is the defendant who acted. So although this sentence became just a smidge longer, overall, this paragraph would probably be saving words by converting this first introductory sentence to active voice from passive voice. My next tip is to use shorter, simpler paragraphs. Scan through your brief, looking for any paragraph that is more than half a page long. Ask yourself, "What is the thesis of this paragraph?" Read each sentence in the paragraph and see if it relates to this thesis. If it doesn't, reorganize or consolidate redundant sentences. For the sake of allowing your reader to rest his or her eyes, look for natural breaks in your writing and create a little bit of a visual rest by marking those breaks with hard returns. Don't make the reader read paragraphs that go over a page long. Find some place to break up the argument or break up the text. Here's a before and after using shorter and simpler paragraphs. The before gloms all this information into one paragraph, even though there's a couple different thesises here. "Summary judgment is appropriate when the movant shows there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law, citing Federal Civil Procedure 56a and Celotex. A fact is material if it might affect the outcome of the case and a dispute is genuine if it may reasonably be resolved in favor of either party, citing Bow. The moving party must establish that no issues remain for trial, viewing the evidence in a light more favorable to the non-moving party, citing . To survive summary judgment, the employee alleging employment discrimination under Title VII must present evidence sufficient that allows a reasonable fact finder to conclude that the defendant employer intentionally discriminated against the plaintiff and that the employment decision was made on account of the employee's religious beliefs, citing Young." You are probably exhausted and not just from reading it, but even me reading it out loud to you as part of this presentation. What a tongue twister. Too much information all jammed together, plus there are different concepts here. This paragraph is really something about two different thesises. There are ideas in here about the general summary judgment standard and there are ideas in here about how summary judgment can be granted in an employment discrimination case. Just the act of taking those two concepts and putting a hard return to mark the difference between those two arguments or two concepts, that alone makes this much more readable. Just looking at it, it seems like less for you to take on, and that's without even micromanaging or editing any of the individual sentences, which, I'd agree, could all be edited. Just the fact of splitting it into two separate paragraphs, that alone makes this text more readable. Here's my suggestion to you. As you write, as you edit, go through your text and in the margin of every paragraph, write what your thesis is. If that isn't your thesis sentence at the beginning of the paragraph, and if that doesn't describe everything that's in that paragraph, you need to revisit your writing. You need to make sure that the thesis comes across more clearly, and if there are multiple concepts in one paragraph, you want to consider splitting them out so that each paragraph has its own separate thesis. It makes your writing much more readable. It also makes your writing much more persuasive because it appears that you have more and better arguments when you have more paragraphs with more separate thesis statements. It gives the reader, the user, the judge and the clerk, more and different things to latch on to to find in your client's favor. Let's move on to my next tip. Envision your reader. By the time you're writing a brief, especially something like a summary judgment brief or an appellate brief after trial, you are so much closer to the case you're working on than your reader will be. It doesn't matter how attentive your judge or your clerk are, you know the case much better than either of them do. As you write, you want to think about your reader. The reader knows much less about the facts than you do. There's absolutely no doubt about that. You are always in better control of the facts. So the more that you can state those facts clearly and put them on the table and make sure that your reader will understand and see them, the better off you'll be in making sure that you can convince the reader or the user who's receiving your brief. But even when it comes to the law, many judges are generalists. They handle all different sorts of cases. On a given day, they may be handling civil and criminal cases on a whole wide variety of different topics. Even if you have a generalist practice, you probably know the specific law in your brief better and more closely, at least at this moment in time, than your reader does. Certainly, when you're talking about the judge you may know it better, but almost undoubtedly, you're going to know that subject matter better than your clerk. Many clerks are fresh out of law school. If the subject matter of your case is not something that was part of the first-year curriculum in law school, there's no guarantee that the clerk even took a class in that subject matter. And even if it's a subject matter that most law students study, even if it's not required, there's no guarantee that your clerk took that class recently, learned the material well, or remembers what was taught in that class when the clerk sits down to read your brief. So not only are you closer to the facts, but you are also closer to the law. The more time you spend with a case, the more things seem obvious, and they may be obvious to you and less obvious to the clerk or the judge. So you want to make sure as you edit that you're putting all your thoughts on paper and you're not presuming a level of knowledge or familiarity with the case that your reader may not have. So how do we see an example of envisioning your reader? Well, here's an example of a piece of legal writing that I improved taking into account what I anticipated or expected from my reader-user. Here's the before. "In the McNeil v. Target case, McNeil requested a day off every Sunday. Smith denied the request, noting that Target's policy required all part-time flexible employees to be available to work on the weekend." It's not a terrible sentence, but here's the problem. Who's McNeil? Who's Smith? I haven't made the relationship of these individuals to the legal issues in the sentence at all clear to the reader. In order for the reader to understand the point that I'm making about the McNeil case, the reader would have to go pull this case on Lexis or Westlaw or Bloomberg or some other legal research platform, and actually read the case and figure out who Smith is and who McNeil is. Well, right there is a missed opportunity. The moment that I'm creating a situation where the clerk or the judge puts my brief down and goes elsewhere, I'm losing an opportunity to persuade. Why would I ever do that? I'm also thrusting some of the work that should have been my work onto the plate of the judge or the law clerk. I'm making them figure out who McNeil and Smith are and what their relationship is to the legal issues so that they can then understand the argument that I'm trying to make about that legal principle. Well, why would they believe me or put any credibility in the argument I'm making when I can't even make that argument coherently and in a self-contained way in my brief? So here's the after. "In the McNeil versus Target case, the employee requested a day off every Sunday. His supervisor denied the request, noting that the employer's policy required all part-time flexible employees to be available to work on the weekend." In the after example, I'm not making the judge guess who McNeil and Smith are. I'm talking about the parties in this decided case using helpful nomenclature that packs a punch. I don't need the judge or the clerk to know the names of these unrelated individuals in another case. All I need the judge or the clerk to know is what their relationship was to each other in an employment context, because this is an argument in an employment case. It doesn't matter what the names of these people were. It matters that one was an employee and one was a supervisor. It doesn't really matter that the employer here happened to be the store Target. What matters is that it was an employer that had the policy. So don't be so close to the material that you're playing psychic games with the reader and assuming that the reader knows things that you know about decided cases or the facts of your case. Put yourself in the shoes of the person who is reading your brief. Give that reader everything that reader needs to understand your argument and nothing more. Don't clutter up the reader's understanding with additional details that aren't important, and in this particular situation, I'd say the names of McNeil and Smith and Target are additional cluttering details that don't matter for understanding of the argument being made in this sentence. And the omission of identification of who's an employee, who's a supervisor, and who's an employer is necessary information, the omission of which decreases the readability and the usefulness of this writing. Let's go on to my next tip. My next tip is an important one. I highly suggest you read your text out loud, especially if you use a computer program that reads the text for you and you read it yourself in your own voice. Listening to a computer program or, frankly, another human being read your text out loud, helps build objectivity. Oftentimes when you're reading, especially when you're reading in your head, you fill in the details that are missing in your writing without even noticing that they're missing. Have you ever gotten a brief back a couple months after you filed it and realized that there are typos throughout it, even though you spent a lot of time proofreading and editing? Well, that's because your eyes and your brain didn't even really see those typos. You were just too close to the writing. When something else or someone else is reading your writing, all of a sudden, anything that's out of place jumps right out, so you'll catch a lot of errors and improve a lot of readability concerns automatically, just by having somebody else read your writing. And then, when you are reading the writing, focus on how easy or hard it is for you to speak what you've written. If you're having trouble saying it, the user is going to have trouble reading it and understanding it. There are many free programs on the internet that will help you do this sort of assessment, where you can cut and paste text in and have it read aloud. If you don't have access to one of those programs, find a colleague or a friend or a family member to read portions of your writing back to you and for you to read portions of your writing, too. You'll be amazed what you find when you read something aloud. Here's a sentence that is hard to read aloud. Look at the before sentence. "Without waiving objections and with knowledge of forethought that evidentiary issues must be properly preserved if they are to be articulated on appeal, the attorney objected to the testimony of the witness." I barely got through that sentence. I had to take a big breath in the middle. That is a wordy mouthful, and if it was a wordy mouthful for me to say, it's even harder for the clerk or the judge to understand. As they're reading it aloud in their head, they're not getting the import of everything that's in the sentence because it's just too complicated. Here's the after. "The attorney objected to the witness's testimony. She objected to preserve the issue for appeal. She didn't waive the objection." That is far more readable and clear, and if it's more readable and clear when you're reading it aloud, it'll be easier for your reader to understand. My last tip for improving the readability of your legal writing is to focus on improving visual readability. White space gives your reader's eye and, frankly, your reader's brain a little opportunity to breathe. Don't forget that your reader may be looking at your writing printed out in hard copy or may be reading your writing on a computer or a laptop or a tablet, and your writing is going to look better in all of those formats when there is visual space, white space on the page. Here's a before and after example. We're not going to read all of the text here, but you'll notice that the text that I have on the left looks like a giant wall of text with no breaks. It signals to the reader that this is going to be a lot to read. This is going to be a slog. It's not organized in any clear way. There aren't any breaks. It's just a big chunk of information. That's intimidating. That's not inviting to a reader. Look at the after. This is the same text. I didn't change any of the actual language, but what I did do was add hard returns and headings, and I used a different font style, underlining and bold, and indentation to set those headings off. Between the headings and the hard returns, there's now a visual break on the page. Instead of one giant chunk of text, now the text is broken into two smaller bite-size pieces of text. It's much more readable. At the end of the day, readability is just one thing you can control in your legal writing and, of course, a readability score is just a score. It's only a general guideline to give you a sense of how easy your brief will be for the law clerk or the judge to read. But it is important to ensure that your writing is readable, and using these tips and tricks and assessing your readability score is one way to improve the readability of your writing. I hope it will make you a more effective advocate going forward. Thank you.

Presenter(s)

VFJ
Veronica Finkelstein, JD
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

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