Anaphora means repeating words at the beginnings of successive phrases or clauses.

Standard: There is no doubt who committed the crimes: Mitchell hid under the stairs, assaulted Ms. Latham, and stole her purse.

Anaphora: There is no doubt who committed the crimes: Mitchell hid under the stairs, Mitchell assaulted Ms. Latham, and Mitchell stole her purse. (Repeats the subject)

Another before-and-after example:

Standard: The Debtor repaid his wife, friends, and brother-in-law—but not the Bank.

Anaphora: The Debtor repaid his wife, repaid his friends, and repaid his brother-in-law—but he did not repay the Bank. (Repeats the verb)

Anaphora creates emphasis through what Farnsworth calls a “hammering effect.” Farnsworth at 16. The repeated words are likely to be noticed and remembered. Id. The repetition also creates expectations—the reader expects the pattern to be continued, so disrupting the pattern becomes an opportunity for emphasis. Id. For example, in the sentence about the Debtor, repeating the verb repaid sets up the expectation that it will continue, but then the verb changes to did not repay, emphasizing the contrast.

Epistrophe means repeating words at the end of successive phrases or clauses.

Standard: The defendant followed, stalked, and harassed Mr. Taylor.

Epistrophe: The defendant followed Mr. Taylor, stalked Mr. Taylor, and harassed Mr. Taylor. (Repeats the object)

Another before-and-after example:

Standard: Mitchell illegally purchased, modified, and sold the rifle.

Epistrophe: Mitchell’s purchasing the rifle was illegal, his modifying the rifle was illegal, and his selling the rifle was illegal. (Repeats the predicate)

Epistrophe also uses the hammering effect, but Farnsworth suggests it’s a bit more subtle because “the repetition does not become evident until each time a sentence or clause ends.” Id. at 32. Added to the hammering effect is the placement of the repeated words at the end—a natural place of emphasis: “The end is emphatic because it makes the last impression.” David Lambuth, The Golden Book on Writing 26 (1983). Thus, epistrophe adds hammering repetition to the emphasis that naturally falls on a concluding word or phrase.

Chiasmus means repeating words or phrases in reverse order. It’s also described as inverted parallelism or an ABBA pattern. A famous example: “Ask not what your country can do for you; ask what you can do for your country.” See Farnsworth at 97. The key words are country and you, repeated in this order: country-you-you-country.

Standard: It was the defendant who stalked Mr. Taylor, not the other way around.

Chiasmus: It was the defendant who stalked Mr. Taylor, not Mr. Taylor who stalked the defendant.

Another before-and-after example:

Standard: Although the Bank has negotiated in good faith with the Borrower, the Borrower has not reciprocated.

Chiasmus: Although the Bank has negotiated in good faith with the Borrower, the Borrower has not negotiated in good faith with the Bank.

Chiasmus, according to Farnsworth, “calls attention to itself.” Id. at 98. I agree. It’s a technique that might, in formal legal writing, come off as oratorical, pretentious, literary. And literary style isn’t always right for legal writing because legal writing isn’t always like literature. Legal writers should use chiasmus with caution: “You should write at most one or two in a document . . . .” Ethel G. Romm, A Chiasmus and Contrast Can Help You Win, 70 A.B.A.J. 158, 158 (1984).

Yet a simple chiasmus can be quite memorable:

State boundaries cannot extend beyond the national boundary. . . . That would mean Texas was not annexed to the U.S., but that the U.S. was annexed to Texas. Id.

Caution is appropriate for all rhetorical techniques, but I recommend adding these three to your persuasive-writing toolkit.

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Don’t let the fancy names put you off: you’ll recognize these techniques, and you might be using them already. My own understanding of them comes from Classical English Rhetoric, by Ward Farnsworth (the Texas Law Dean) and from The Elements of Legal Style, by Bryan A. Garner.

Polysyndeton means using conjunctions between all the items in a series.

Standard: The flag is red, white, and blue.

Polysyndeton: The flag is red and white and blue.

Thus, with polysyndeton, you might do this:

The background check showed charges of vandalism and gambling and fraud and assault.

To improve your writing, you must study and practice and accept critique.

In legal writing, polysyndeton can supply two types of emphasis. First, “the result is to emphasize every one of the items singly . . . .” Farnsworth, at 128. The extra conjunctions invite readers to think of the items separately rather than as a group. Second, polysyndeton tends to emphasize the sheer number of items in the list. Id.

Compare

The defendant’s responses were hasty, terse, and superficial.
with
The defendant’s responses were hasty and terse and superficial.

Asyndeton means omitting the conjunction, typically before the last item in a series.

Standard: The flag is red, white, and blue.

Asyndeton: The flag is red, white, blue.

With asyndeton, you might do this:

The background check showed charges of vandalism, gambling, fraud, assault.

To improve your writing, you must study, practice, accept critique.

Asyndeton creates emphasis because omitting the conjunction is “irregular and unexpected.” Farnsworth, at 147. Although asyndeton can improve the rhythm of some sentences, Farnsworth also acknowledges it can seem “mannered.” Id. at 148. He’s right. He might have said “literary” or even “showy.” In general, legal writers should use asyndeton cautiously.

Compare

The defendant’s responses were hasty, terse, and superficial.
with
The defendant’s responses were hasty, terse, superficial.

Isocolon means a series of similarly structured phrases, clauses, or sentences of the same length. It’s a form of parallelism.

Standard: The flag is red, white, and blue.

Isocolon: The flag is red; it is white; it is blue

Isocolon: The flag is red. The flag is white. The flag is blue.

Using isocolon, you might do this:

The background check showed charges of vandalism, charges of gambling, charges of fraud, and charges of assault.

The background check showed charges of vandalism; it showed charges of gambling; it showed charges of fraud; it showed charges of assault.

To improve your writing, you must confront your faults, practice your skills, and study others’ writing.

Using isocolon can “produce pleasing rhythms,” according to Farnsworth, and allows writers to use a parallel structure to reinforce parallel substance. Id. at 74. But consider this example:

The defendant’s responses were inappropriate. They were hasty. They were terse. They were superficial.

The tone begins to sound oratorical, as Farnsworth notes. Id. So although isocolon is appropriate for legal writing, it’s more common in speech.

In fact, all three techniques appear more frequently in speeches and literature than in formal legal writing. Outside legal writing, all three can be used in more sophisticated ways than shown here. Still, I recommend adding these techniques to your toolkit for persuasive legal writing. And as with any form of rhetoric and persuasion, be wise: before resorting to classical rhetoric, make sure your writing is clear, direct, correct.

Perhaps it’s as simple as “Be original” or as we might say today, “Be fresh.” But I’ve always taken it to mean “Avoid clichés.”

Avoid them like the plague.

The advice isn’t original with me; it’s everywhere. Of course, we can say that about clichés: They’re everywhere, and that’s the key reason to avoid them. They’re over-used, hackneyed, and stale. For example, in her excellent book, Woe is I, the writing expert Patricia O’Conner says, “If a phrase sounds expressive and lively and nothing else will do, fine. If it sounds flat, be merciless.” O’Conner at 168.

Notice she said be merciless and didn’t say bite the bullet. It’s on her list of 88 clichés to avoid, including

can of worms

fall through the cracks

last but not least

tip of the iceberg

Legal-writing experts give the same advice. Ross Guberman, a legal-writing teacher and the author of Point Made, came out against some clichéd legal terms on his website. He particularly attacked these four:

second bite (at the apple)

inextricably (linked)

slippery slope

bald (assertions)

By the way, Guberman’s piece on the subject is called Avoid These Clichés Like the Plague.

Bryan Garner, too, opines that clichés proliferate excessively in legal writing. As he asks in Garner’s Dictionary of Legal Usage,

Why are dissents so often vigorous, objections so often strenuous, evidentiary hearings always full blown, and exceptions invariably carved out?

Echoing O’Conner, he advises, “If one finds oneself writing or talking in ready-made phrases, it is time to draw back and frame the thought anew.” Id. at 165.

Two other legal-writing experts, Tom Goldstein and Jethro Lieberman, say a cliché “broadcasts the writer’s laziness.” The Lawyer’s Guide to Writing Well at 119. They recommend we all

Get down to brass tacks and, with both feet on the ground, face the music and turn over a new leaf. Gird your loins at these wolves in sheep’s clothing, give clichés the short shrift, and from now on, avoid them like . . .

Well, you know how it ends.

My colleague Gretchen Sween captured the paradox of clichés nicely on her blog, True Complaint. Once, these expressions were

so vivid, so fresh that everyone wanted to use them . . . . [but] . . . because everyone wanted to use them, the expressions soon lost their sheen. They turned trite and shabby. They became linguistic pariah, indicating a failure to think outside the box.

But must we banish all clichés? Or can legal writers turn clichés to their advantage?

Maybe.

O’Conner acknowledges that a clever twist on a cliché can make readers smile. For example, she says, “bankruptcy is a fate worse than debt.” O’Conner at 165.

One legal writer, D’Ann Rasmussen, makes a case for putting a spin on clichés in her article, A Fresh Look at Clichés, 5 Scribes J. Leg. Writing 152 (1994–1995). Naturally, she’s mostly against clichés—she rightly opposes using them for emphasis: “Their main virtue is brevity, not forcefulness.” Id. But she believes “even the most used up cliché can gain new life at the hands of a skilled writer” and offers these examples:

tried and true becomes tried and untrue

sadder but wiser becomes gladder but wiser

through thick and thin becomes through thin and thin (attributed to Henry Thoreau).

I’m not sure I agree. You should play it by ear. It goes without saying that attempts at cleverness and humor often fall flat. As a pancake.

Core Faculty on Law School Cafe

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Prison Grievances: When to Write. How to Write

Please read it and recommend it to anyone you know who is incarcerated.

Get more information here.

Some of these explanations may surprise you, and I’ve had a few lawyers disagree with me about some of them. But you don’t have to take my word for it (pun intended). If you disagree with my explanation, do this: look it up on the Web and look it up in a book. If I’m wrong, let me know.

beg the question
The phrase beg the question applies to logic and arguments. One who begs the question assumes as true the point that must be proved or uses as evidence the statement itself: “The reason it is in high demand is that everyone wants it.” That sentence begs the question. But begs the question is now widely used to mean raises the question or [it] makes one wonder. “The witness would not look at the defendant, and that begs the question—was the witness lying?” No, it raises the question.

deep-seated / deep-seeded
A belief or feeling is deep-seated because it has been seated (fit into place) deep within a person. Despite the way it sounds when spoken, and despite the logic of it, the metaphor here is not about planting seeds, so deep-seeded is incorrect.

defuse / diffuse
To diffuse is to spread widely or disperse, and the word is most often used as an adjective: something that is diffuse is spread out, not concentrated. If what you mean is to reduce tension or to lessen danger, you want defuse—literally to remove the fuse. “The CEO tried to defuse criticism of the merger.”

disinterested / uninterested
The distinction between disinterested (unbiased, impartial—literally without an interest in a decision or outcome) and uninterested (not interested, bored) is being lost in ordinary spoken English. But the distinction is worth preserving, especially in law, where we all want our judges to be disinterested but not uninterested.

everyday / every day
If you mean every single day, you want two words: every day. If you mean ordinary and typical, you want one word: everyday. “Almost every day I see writers make the everyday mistake of using everyday to mean every day.”

flesh out / flush out
If an argument is undeveloped or in outline form, you might say it is “skeletal” or “bare bones.” If you want to develop the argument or add details to the outline, you want to flesh out the argument. You want to add meat to what otherwise would be a skeleton or bare bones. That’s where the phrase flesh out comes from. “Your argument lacks detail; you need to flesh it out.” But you don’t want to flush out your argument, which would mean to drive it out or cause it to fly up and away. The proper use of flush out is often seen in discussions of game birds: “The hunters wanted to flush out the quail.”

fortuitous / fortunate
Fortuitous means accidental or by chance. “Seeing Professor Gordon at the airport was entirely fortuitous.” But fortuitous is more and more often being used to mean lucky or propitious. That’s unfortunate. The proper word for lucky is fortunate.

toe the line / tow the line
The correct phrase here is toe the line and is derived from the idea of people lining up—as for a military inspection—and placing their toes on a line. So one who does what is expected and follows the rules is said to toe the line. A similar expression with a similar meaning is toe the mark. The phrase toe the line is more often spoken than written, so it’s easy to see why the confusion arose, but the concept has nothing to do with pulling or towing a line.

Then it’s time to move. Every source on legal language that discusses and/or advises not to use it. Here’s a sampling:

“And/or is best discarded.” J.K. Aitken, Piesse’s The Elements of Drafting 85 (9th ed. 1995).

“With experience you’ll find that you don’t need and/or.” Bryan A. Garner, Legal Writing in Plain English 112 (2000).

“If the lawyers did invent and/or, they owe it to the common language to atone, by eliminating and/or from the legal vocabulary . . . .” David Mellinkoff, Legal Writing: Sense and Nonsense 56 (1982).

Judges have been even less kind. In fact, some of the harshest things ever said about legal language have been said about and/or.

“[T]he much condemned conjunctive-disjunctive crutch of sloppy thinkers . . . .” Raine v. Drasin, 621 S.W.2d 895, 905 (Ky. 1981).

“[An] abominable invention . . . as devoid of meaning as it is incapable of classification by the rules of grammar and syntax.” Am. Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1084 (Tex. Civ. App.—Beaumont 1938, writ dism’d).

“[T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning . . . .” Employers’ Mut. Liab. Ins. Co. of Wis. v. Tollefsen, 263 N.W. 376, 377 (Wis. 1935).

Why all the vitriol and venom? After all, the phrase does have a reliable meaning. “A and/or B” means “A or B or both.” But there’s ambiguity hidden within the phrase, and not everyone uses the phrase appropriately. The problems with and/or arise from three sources.

First, and by itself can be ambiguous. “The bank may fund A and B.” If the bank chooses to fund A, must it also fund B? Or may the bank fund A but not B? It’s ambiguous, and litigation has ensued.

Second, or by itself can be ambiguous. “The bank may fund A or B.” If the bank chooses to fund A, is it prohibited from funding B? Or may the bank fund both A and B? It’s ambiguous.

To solve the problems created by the ambiguity of and and or, and/or might work, but given its bad reputation, a better approach is to avoid and/or and add clarifying words. See Kenneth A. Adams, A Manual of Style for Contract Drafting 198 (2d ed. 2008). For example:

The bank may fund A and B but not one or the other.
The bank may fund A or B or both.
The bank may fund A or B but not both.

Third, some writers use and/or where it’s inappropriate. For example, imagine a job application that says: “Check here if you cannot work nights and/or weekends.” If you check the box, what does it mean? You cannot work nights? You cannot work weekends? You cannot work either? It’s fatally ambiguous.

But you can’t fix it this way: “Check here if you cannot work nights or weekends or both.” That doesn’t help. You need two check boxes: “Check here if you cannot work nights. Check here if you cannot work weekends.”

Given the three sources of problems with and/or, here’s my advice: Avoid and/or, but don’t assume there’s always an easy fix by writing “A or B or both.” You have to think through the alternatives and be sure what you want to say.

Which is better?

The question sparks passionate debates. I think either is fine for legal documents, and in this post I describe the pros and cons of each and offer some recommendations.

Fully justified text produces neat, vertical margins that create the sense of a line on each side of the document. Justified text tends to look formal and serious, and that’s why professionally printed documents are often fully justified. For example, nearly all books use justified text. I just looked through 10 random books in my office: the text is fully justified in every one. I looked through 4 magazines I have on hand: 3 use full justification throughout.

But the full justification that looks neat and professional to some looks dry and uninviting to Matthew Butterick, author of Typography for Lawyers. He doesn’t fully justify the text in his legal documents (he’s primarily a trial lawyer). He says full justification “is not a signifier of professional typography.” Butterick at 136. And Bryan Garner, in his Dictionary of Legal Usage, says readability research shows that fully justified text is harder to read than left-aligned text. Garner at 291.

Left-aligned text produces a ragged right margin that looks less formal. Butterick says left-aligned text “relaxes the page.” Butterick at 136. Most websites (all 10 I checked) and informal correspondence (think email) are left aligned, and even some professional documents are left aligned. A magazine in my office uses left-aligned text, and the Austin-American Statesman left aligns its text—ragged right margins throughout. The text you’re reading now is left aligned.

But the left-aligned text that looks relaxed to some looks messy and unprofessional to others. After all, a ragged right margin is a vestige of the typewriter, which couldn’t produce fully justified text. Once upon a time, only professional printers could fully justify text. Now, with word processors, we can easily justify our text and give it the look of a professionally printed document. After all, why would you want your text to look like typewriter text?

Yet it’s the word processors (like Microsoft Word) that are the problem, says Butterick. The justification engine in a word processor is “rudimentary compared to a professional page-layout program.” Butterick at 136. So the justified text in the books we read might look great, but we all know justified text in a Word document often has unsightly gaps and spaces. The “rudimentary” justification engine is struggling to stretch and condense your text to fit the line length. It’s those gaps and spaces, by the way, that make fully justified text less readable.

So if you like justified text—the neat vertical margins—go ahead and justify. But if you’re not using a sophisticated publishing program, you should turn on hyphenation. In Word 2010, go to Page Layout > Hyphenation. This function breaks words at the right margin (as some of us used to do on a typewriter—remember?). Turning on hyphenation gives Word another tool to help the text fit the line length, and it reduces gaps and spaces. You should probably choose automatic hyphenation, not manual, and look through the other hyphenation options. And note that the function isn’t perfect: in a document I was preparing, Word once hyphenated newsletter as new-sletter. You have to proofread.

If you dislike justified text—the gaps and spaces—or if you don’t care, go ahead and use left-aligned text with a ragged right margin. According to Butterick and Garner, left-aligned text is appropriate for legal documents and will be more readable.

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Here are some tendencies we’re coming to understand about screen readers:

• Screen readers get impatient, Dubose at 42, and tend to spend less time on a screen document than they would on a print document.
• Screen readers skim a lot, Dubose at 39, perhaps even more than when reading a printed document.
• Screen readers show a top-left preference: they focus more on text at the screen’s top and left and less on text at the bottom and right. The preference is called the F-pattern, Dubose at 37, because the screen reader’s eyes move in a pattern that resembles an uppercase F.

Given these tendencies, what should you do when writing for screen readers? The advice is not surprising and, frankly, would benefit print readers, too.

1. Be brief.
Accommodate screen readers’ brief attention with a brief document. Let me clarify: what I advocate here is really concision. Brief simply means shorter, and anything can be made shorter but cutting content. Concise means as short as possible while preserving content. Sure, some content deserves cutting. But don’t cut crucial content. Instead, preserve necessary content while using as few words as possible. Be concise.

2. Provide summaries.
At the top of the document, as early as the rules and conventions allow, summarize your main points or give the answer with reasons or state your request and support it—whatever the document calls for. In short, provide a substantive summary. I recommend a “substantive” summary rather than a mere roadmap (“Part A presents X; part B discusses Y.”) because the impatient screen reader wants the goods, not just a description of where the goods can be found. A substantive summary that doubles as a roadmap is even better. Do it by presenting the substantive points in the order they’ll appear in the document’s body.

You can also include a mini-summary for every major section of the document and even a single-sentence summary for every paragraph, or what we might call a “topic sentence.”

3. Use headings and subheadings.
Accommodate heavy skimming by making your documents easy to skim. Headings facilitate skimming. Use short, often single-word headings for the main sections of a document: Facts, Argument, Discussion, Analysis, and so on. Use short, sentence-type, explanatory headings for other parts. The headings in this column are examples of short, sentence-type, explanatory headings.

By rule or convention, some legal documents already require explanatory headings, like the assertive point headings in a motion or brief, though you shouldn’t let them get too long. But other documents can benefit from the skim-ability of explanatory headings: email, letters, CLE articles, newsletters, and more.

4. Left-align headings and make them stand out.
Given the top-left preference and the tendency toward skimming, aligning headings and subheadings on the left margin helps screen readers. Headings on the left margin are easy to skim. Centered headings are harder to skim. Centering your main section headings is harmless, but even they can be placed on the left margin. Never center explanatory headings.

To differentiate heading levels, apply a consistent numbering system, use contrasting typefaces (larger size, bold, italics), or indent each lower heading level one additional tab length. If you want to indent your headings, follow these tips:

1. Use the indentation function—different from a mere tab—so each line of text aligns with first line, like this example.
2. Don’t over-indent; if you indent three or more tab lengths, you’ll destroy the left alignment that eases skimming.

Ultimately, think about how you read on the screen. Write and layout your text in a way you’d like to read.

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5th

not this:

5^th

(Background: numbers that have the additional letters, like st, nd, rd, and th are called ordinals: 1st, 2nd, 3rd, and 4th. When you shrink the letters and elevate them, they’re called superscript ordinals: 1^st, 2^nd, 3^rd, and 4^th.)

So why do many legal documents use superscript ordinals? Because Microsoft Word comes with a default auto-correct setting that automatically converts ordinals to superscript ordinals.

But legal writers shouldn’t accept the Word default for ordinals. Turn it off. Here’s how:

Go to File > Options > Proofing

Click on the “AutoCorrect Options” button

Click on the “AutoFormat As You Type” tab

Uncheck the “Ordinals (1st) with superscript” box

Then:

Click on the “AutoFormat” tab

Uncheck the “Ordinals (1st) with superscript” box

That should do it.

I don’t consider superscript ordinals a glaring mistake. It’s a small distraction at worst. But it’s a symptom of a larger problem. Legal writers should not unthinkingly accept all Word defaults. Take control.