The compound-modifier hyphen connects and clarifies

Grammar and Punctuation Comments Off

Take advantage of our new customer discount. This means a new discount for customers, but I bet the writer meant a discount for new customers. We’re selling a little used car. This means the car is small, but I bet the writer meant the car had been used only a little. He has a family law practice. This means he practices with a relative, but I bet the writer meant he takes divorce cases.

What causes confusion in these examples is the absence of a hyphen. The rule—and yes, it’s a rule of written English, although some of us never learned it—requires a hyphen between words that jointly modify a noun. The Chicago Manual of Style § 7.81 (16th ed. 2010). These jointly modifying words are called “compound modifiers” or “phrasal adjectives.”

Careful writers hyphenate compound modifiers: Take advantage of our new-customer discount. We’re selling a little-used car. He has a family-law practice. The hyphen clarifies meaning, instantly telling the reader that the words modify the noun jointly, not independently. When the modifying phrase follows the noun, you need no hyphen: We offer a discount to a new customer. The car we’re selling is little used. His practice is in family law. You also need no hyphen for proper nouns (United States treaties), foreign phrases (prima facie case), and adverbs ending in -ly (highly skilled writer). You do need a hyphen for well phrases, like well-pleaded complaint, well-known jurist, and well-rounded person.

Some legal writers doubt the rule and say they don’t see compound-modifier hyphens in other writing. But the truth is they’re everywhere. We don’t notice them because they’re doing their job—smoothing out our reading and eliminating miscues. For the skeptical, I offer a sampling of hyphenated modifiers from a single edition of my local newspaper, the Austin American-Statesman. I recorded the first ten I saw:

single-family home
five-day period
technology-based processing system
city-owned street
since-discredited promise
60-vote majority
two-thirds requirement
far-reaching change
board-appointed reviewer
call-center jobs

If you look for them, you’ll find compound-modifier hyphens in any well-edited publication.

You can use several hyphens if the modifying phrase has several words. So all the following are correct: all-or-nothing strategy, on-the-spot investigation, two-year-old plan. But don’t get carried away with long, hyphenated modifying phrases. This might be okay: a sweep-it-under-the-rug approach, but this is too much: a let-the-jury-struggle-with-it-and-figure-it-out attitude.

You can also use a “suspended hyphen” if you don’t want to repeat the second part of two similar compound modifiers. So instead of right-brain and left-brain functions, you can do this: right- and left-brain functions, or 15- and 30-year mortgages.

In applying these hyphen rules, legal writers sometimes encounter a problem. In law we have many familiar expressions and phrases that technically require hyphens but that will not confuse if left unhyphenated. For example, all these would take hyphens: summary-judgment motion, good-faith effort, reasonable-person standard. But hyphenating them can seem pointless and, given that some readers don’t know the rule for compound-modifier hyphens, adding a hyphen might cause more confusion than it saves.

So you have a choice.

You can apply the hyphenate-your-compound-modifiers rule at all times, uniformly, even to familiar phrases. That way, you don’t have to stop and think about whether you’re causing confusion. You just follow the rule: I always hyphenate compound modifiers, and this is a compound modifier, so I’ll hyphenate. Bryan Garner, in Garner’s Modern American Usage, supports this “flat rule.”

Or you can apply the hyphenation rule when confusion might result, but not to familiar legal phrases. So you’d hyphenate high-performing employee and public-agency exception but not common law doctrine, third party beneficiary, or summary judgment motion. Of course, with the case-by-case approach you have to gauge your audience’s knowledge and differentiate general audiences from specialized ones. Thus, you’d probably need to hyphenate differently for a labor lawyer and for a generalist judge and maybe even for the judge’s clerk. As you can see, you avoid wrestling with tough calls if you apply the flat rule.

Whether you apply the flat rule or a case-by-case standard, put “hyphenate compound modifiers” or “hyphenate phrasal adjectives” on your editing checklist.

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The biggest impediment

Improvement, Law Practice Comments Off

The biggest impediment to better legal writing isn’t the lack of quality instruction in law school.

It’s law practice.

Deadlines. Time limits. Conventions. Fear. Supervisor expectations. Local rules. Forms and templates. Money. Inertia. Complacency.

All these prevent lawyers from taking the appropriate time to polish their writing. For example, even if a lawyer has four weeks to write a brief, that’s not enough because the same lawyer has three other briefs, four memos, and eight letters to write at the same time, not to mention the 150 e-mail messages to read and respond to.

Revising, editing, and rewriting are what make mediocre writing good and good writing great, but lawyers don’t have enough time for them.

David Mellinkoff captured the nature of the busy law practice and its effects on legal writing:

Sometimes urgency forces precedence over everything else. Get it done. Get something out. We’ve got to file. This is a “rush.” The writer is under pressure to take shortcuts. This has become the normal environment of most legal writing, and is one of the principal reasons why so much of it is so bad.

David Mellinkoff, Legal Writing: Sense and Nonsense 116 (1982).

The unfortunate fact is that this kind of rushed approach often gets the job done—it’s often good enough or has to be. One reason it gets by is that many of us have been writing this way—under a deadline and without sufficient time devoted to polishing—since college:

Many young lawyers seem to have survived writing assignments in college and law school (with the exception of law-review writing) by turning in what were basically first drafts, lightly edited to fix glaring errors. They are unprepared to regard editing as a serious, laborious activity.

Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 298 (2003).

And so practicing lawyers continue to churn out mediocre or poor writing; the exigencies of modern life and law practice almost require it.

True writing classes are rare

Teaching Legal Writing Comments Off

High-school classes that teach writing are rare. College classes that teach writing are rare. Graduate-school classes that teach writing are rare. In fact, for most of my first-year law students, the required legal-writing course is the first class they’ve ever taken that is actually and seriously about writing.

I can’t prove my assertions, but I offer three anecdotes.

1. Pre-AP English isn’t about writing.
I know a 10-grader taking Pre-AP English. The course focuses on literature, not writing. The course covers a dozen books and plays, and the students learn about mythology (The Odyssey, The Iliad), Shakespeare (Julius Caesar, Romeo & Juliet), religion (The Inferno), war (All Quiet on the Western Front), and more. They read and annotate these works, do group projects about them, and take tests on them.

What they don’t do much is write about them.

Yes, they usually write an essay as part of the test on each work, but that’s a timed, in-class writing project. Better than nothing, but not terribly practical. It’s really more about what they know than how well they can write. And besides, I’m convinced that high-school and college essays and the grading of high-school and college essays foster a formal, fancy, show-off type of writing, the kind everyone claims to hate but that many academics do and reward.

What’s more, for two of the works, the teacher had students prepare an essay outline and turn that in as the writing project. Not much writing practice there.

(I’m not complaining. I’m describing. Do you want to grade 100 10th-grade essays on The Iliad? Neither do I. Do you want to let 10th graders do the essay untimed at home and then try to catch all the plagiarism? Neither do I.)

2. College writing courses aren’t about writing.
I once attended a university-sponsored training session called “Creating Outcome Assessments for Writing Assignments.” Anyone teaching a writing course was invited, and about 25 teachers were there. We each introduced ourselves and named the course we were teaching. I was the only person whose course title included the word “writing.” The others were teaching history, literature, sociology, and so on. But each course required a paper, so it was a “writing” course. I realized they weren’t teaching writing; they were teaching history (or whatever) and had to give a writing assignment.

So who’s teaching writing? Maybe all the writing teachers already knew how to create an outcome assessment, so they had no need for the training, and that’s why none of them were there. Maybe. Or maybe there are very few classes that actually focus on teaching writing.

3. Master’s classes aren’t about writing.
One of my students told me no one had ever commented on her writing to the degree her legal-writing teachers had. In earning her master’s degree, she had written a lot of papers and a lot of essays, but she almost never got mechanical or structural comments on them. What was most important, she learned, was that the paper presented a great idea, an original idea, something new. That’s what mattered.

Of course, the paper couldn’t be sloppy, full of writing errors. But no one in her program was concerned about that; they were all average to above-average writers. So although the course grade was based almost entirely on writing papers, there was no classroom instruction on writing and very little feedback on the actual writing the students did.

My point?

Many of us assume someone else taught students how to write. We look backward to college, to high school, to middle school. We assume someone taught them writing. We assume they learned it. We assume they know the basics (and some of us define the basics fairly comprehensively, possibly forgetting what we once didn’t know). But what if no one ever taught them writing? I’m beginning to think no one ever did.

And why not?

Maybe it’s because teaching writing is a pain in the neck. It’s hard, and it’s easier and more interesting to focus on something like The Iliad or history or a new idea. It’s easier to assume someone else taught them writing, so we don’t have to.

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Don’t Rest on Plateaus

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Are the legal-writing classes you had in law school the last writing training you’ll need for your career?

If you’re a bankruptcy lawyer, was a law-school class the last bankruptcy training you’ll need?

That’s your answer. Legal writing is like any skill or substantive topic: there’s always more to learn, and there’s always room for improvement. But sometimes, busy legal writers rest on plateaus. We produce good-enough legal writing, and we’re comfortable on that plateau, so we stay. Here’s some advice for moving on.

1. Admit you have room to improve. When I was a full-time lawyer, I thought I was a good writer, above average. Now I realize I hadn’t been that good. I’d been quite mediocre. I was poorly educated about the standards of high-level professional writing, and I was ignorant of my own limitations. Was I unique? Probably not. Many lawyers believe themselves to be good writers, above average within the profession, but I say this: The first step to becoming a good legal writer is to admit you have room to improve.

2. Get some references. Once you’ve admitted you have room to improve your writing—that you’re resting on a plateau—start learning. A great way to raise your writing IQ is to consult the experts. When you have a question about writing, don’t rely on half-remembered “rules” from high-school English. Look it up. But where? Here are two websites I like:

But if you’re serious about legal writing, you’ll need some reference books, and here are three I recommend:

  • The Redbook, by Garner
  • The Texas Law Review Manual on Usage and Style
  • Just Writing: Grammar, Punctuation, and Style for the Legal Writer, by Enquist & Oates

Your goal is to have reliable references handy to answer questions. Other professional writers consult writing references, and lawyers should, too.

3. Read writing books. If you’re serious about getting off that plateau, you’ll have to do more than consult references. You’ll have to study the principles of good writing and good legal writing. But how, when you’re busy? Set a goal to read one book on writing every year. Here are some I like

  • Lifting the Fog of Legalese, by Kimble
  • The Lawyer’s Guide to Writing Well, by Goldstein & Lieberman
  • Writing with Style, by Trimble.

These books are great sources of writing knowledge, and they’re also well written. Reading the best books teaches you writing and exposes you to good writing.

4. Practice what you learn. You’re reading about writing and you’re consulting writing references. Now practice what you’re learning. Of course, for any working lawyer, writing practice is part of the job: you’re writing all the time. Yet we tend to rest on plateaus—we write as we always have, with the same habits, the same limitations. (That’s why studying writing is so important. Practice without study is usually just repetition.) So experiment with things you’re learning. Try new techniques and master new approaches to writing.

5. Edit better. We all know editing is crucial to good writing. Most of us can’t produce high-quality writing in one draft (or even two). We must edit, so here are some suggestions for getting off the editing plateau.

Leave plenty of time, even though it’s hard to do. How much? One pro recommends half the time on a writing project. Debra Hart May, Proofreading Plain and Simple 46 (1997).

Use more than one technique when editing: Do you edit on the computer screen? That’s fine, but it’s not enough. Do some editing on a hard copy, too; we read and react differently to screen text and printed text. Do you read the text out loud? That’s great: you’re using your ears, not just your eyes, to help you edit. Now go further and have a trusted colleague read it and suggest some edits. Do you read the document in reverse, from the last sentence to the first? Good. This technique tricks your mind, so you’re not familiar with the text; familiarity leads to poor editing. Now read only the topic sentences. Next read the opening and closing paragraphs.

Mediocre writing becomes good writing only through editing.

6. Accept critique. Here’s the hardest part: seek and welcome critiques and candid suggestions for improving your writing. This one’s tough because it’s natural to be defensive about your writing—maybe even insecure. I know I am. But when I avoid critique, I don’t improve much. I rest on a plateau. So open yourself to honest critique. Find a trusted colleague, friend, or supervisor, someone whose judgment and writing you respect. Then ask for suggestions, and take them to heart. The best writers are open to critique.

Now move off that plateau.

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Simplicity, clarity, and plainness

Plain English Comments Off

“Simplicity is widely praised and narrowly practiced.” Robert Gunning, The Technique of Clear Writing 68 (1968).

In legal writing, this truth applies to clarity and plainness: many recommend them; few execute.

New book on legal writing

Improvement, Sources Comments Off

I just finished reading Sketches on Legal Style by Mark Cooney, and I loved it. Lots of practical advice in a readable, engaging book. I recommend it.

COONEY-SKETCHES

From the publisher’s website:

Who says legal writing is a dull subject? This collection of lively, offbeat short pieces explores legal style like no book you’ve read before. But be warned: you just might learn something while you’re smiling. Through a colorful cast of characters, learn how legal writers can use plain language and careful syntax to produce clearer, stronger, and more persuasive documents.

Will legalese devotee Ebenezer Scribe change his ways after receiving visits from four clarity-minded ghosts?

Will Colonel Ketchup’s passive-voice phrasing obscure whodunit?

Will Editor Man defeat his most formidable foe yet: a dense block of statutory text containing, among other things, a 142-word sentence?

And much more . . .

Visiting lectures at Arizona State

Teaching Legal Writing Comments Off

I am pleased to report that my visit to Arizona State University’s Sandra Day O’Connor College of Law was wonderful. I gave two lectures there, and both were well received. I visited a first-year LRW course and took some questions. I attended the writing faculty’s weekly meeting. It was a fantastic experience.

Spending time with the outstanding faculty in their Legal Method and Writing program was a great opportunity.

I offer a personal, special thank you to Professor Susan Chesler and Associate Dean Judy Stinson.

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The visit and my two lectures while there were made possible by support from ALWD through a grant to support the Legal Communication & Rhetoric Visiting Scholars Program.

Visiting Scholar at Arizona State–O’Connor

Plain English, Teaching Legal Writing Comments Off

I am honored to be invited to be a Legal Communication & Rhetoric Visiting Scholar at Sandra Day O’Connor College of Law—Arizona State University on November 7-8, 2013.

The visit and my two lectures while there are made possible by support from ALWD through a grant to support the Legal Communication & Rhetoric Visiting Scholars Program.

More information here.

Legal Writing: Precision and Persuasion (CLE)

Improvement, Law Practice Comments Off

Please visit this page:

Legal Writing: Precision and Persuasion

To attend a 6-hour CLE seminar on legal writing. The seminar includes 1 hour of ethics credit.

The seminar presenters are Wayne Schiess and Kamela Bridges.

Attend our new legal-writing seminar

Improvement, Law Practice Comments Off

I’d love to see you at a new legal-writing CLE seminar offered by UTCLE on November 15 in Austin, Texas:

Legal Writing: Precision and Persuasion

I’ll be presenting the seminar with my colleague Kamela Bridges.


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