Posted: Thu May 15, 2008 10:19 pm Post subject: About writing style, in my humble opinion
Ideally, legal writing is taut writing. So says Bryan Garner at page 53 of The Elements of Legal Style. Taut writing omits all unnecessary words. This includes what Garner refers to as "the verbal equivalent of throat-clearing." On Garner's account, throat-clearing is what we do when we introduce our statements with such phrases as "in my considered opinion," or "may I respectfully suggest." Garner's advice amounts to this:skip the gargle and spit it out.
It's easy enough to see that some kinds of throat-clearing amount to more words without more communication. But there are other ways to look at this.
In Style: Toward Clarity and Grace, Joseph Williams tells about something he calls "metadiscourse." Metadiscourse is that part of the writing that is about how we are going about the task of writing. It's the story we tell about how we are telling the story. Metadiscourse can be useful for setting frameworks or giving directions. We can ask our readers to look back, "as we have shown;" to look forward, "we will now show;" or do both, "now that we have shown X, we will now show Y."
Despite being similar in form, metadiscourse can thus differ from throat-clearing in terms of function. What is more, metadiscourse can display what Williams refers to as a "civilized diffidence." Williams lists some of the words we use to do this: usually, perhaps, possibly, seemingly. These are hedge words. How much hedging we ought to do is highly situational, contingent on topic, audience, and venue.
One such venue is Connect. When we post here, we write. Yes indeed, we certainly do. But often it's a particular kind of impromptu writing that's related to speech. So for the next post in this thread I will argue that the kind of civilized diffidence that it often the right tone to take for a speech-flavored Connect post can properly involve throat-clearing. I hope to show a connection between this idea and some of the things Stephen Pinker said in The Language Instinct. _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
One of the easiest ways to eliminate 50 percent of the ambiguity of legal writing is to never use pronouns. Always use a direct reference to the person.
For example:
Bad: "He wrote that he felt the limitations given to him were extreme."
Better: The ALJ held at page six of his decision that Dr. Samuels opinion dated June 6, 2005 contained "extreme" limitations for Plaintiff's use of the right hand for repetitive tasks.
I’ve put off the main project for this thread to look at Bryan Garner’s style guide again. I have to say I am disappointed that Garner missed the chance to tell us to leave off all pronouns. Garner uses lots of pronouns in Garner’s book. Garner has pronouns on Garner’s every page. Garner has pronouns in most of Garner’s paragraphs. Why, Garner has multiple pronouns in some of Garner’s individual sentences. To be sure, these pronouns are more often first and second person that third person. Even so, I disappointed.
You know, I’m not just disappointed at this. I’m indignant. Who does Garner think Garner is not to tell us about never using pronouns? _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
This is one of those sad times in which I cannot determine the tone of your posting. I hope you do not give up this string. Mr. Garner's book itself is not legal writing. It is a book about legal writing. That is a completely different kind of horse.
This too is not legal writing. It is a writing about a string, about a book, about legal writing.
This is not a horse, but isn't he squared up nicely?
This is Mr. Brown. This too is not a horse -- it's a picture. But isn't he fast!
I wonder, JOA, have you ever done any legal writing?
Is writing at SSA legal writing, or is it administrative writing? Is it adversarial? Is it argumentative?
Is Mr. Garner's book adversarial? Is it argumentative?
Writing on Connect is not legal writing. Is it? Or is it at some times, but not at others?
I meant the tone to be tongue in cheek. And a cheeky kind of tongue in cheek at that.
I cannot answer your questions about my writing. I make no claims now for my own writing, either the writing I do here or the writing I do elsewhere. I have never made any claims for my own writing. I will continue to make no claims for my own writing. Readers will simply have to judge for themselves what to think about it—whether it be good; bad; legal; adversarial; or God forbid, boring.
Because I am determined to make no claim about my own writing, then it follows that I am unwilling to claim any particular standing to talk about writing. Just as readers will have to judge my writing for themselves, readers will also have to judge what I say about writing for themselves. Do I make sense? Am I persuasive? Or am I full of it, perhaps in a particularly pompous way?
As for Garner, his style guide is self-declaredly about legal writing. His index has 12 entries about pronouns. As I read them, these multiple entries are about how to manage pronouns for legal writing. None say use no pronouns.
What is more, many of famous writers Garner quotes have shown themselves willing to use pronouns. These may even qualify as legal writers. Flipping a few idle pages, I see Justice Holmes at 152 ("her pupils," "we see her daily," "we know her," "his deserts or needs," "his path"), with Clarence Darrow on the facing page ("his nature," "his life," "for the sake of his ideals").
My view is this: there are good ways and bad way to use pronouns. To use no pronouns is not a good way. _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
Variables are a basic feature of most programming languages. A variable provides a mechanism for the programmer to store and retrieve data by name. Variables typically store data of a particular type. Basic data types include strings, numbers, or boolean (logical) values. Most programming languages support the creation of a collection or list of variables of the same type known as an array. Sophisticated programming languages allow the programmer to create new data types composed of groupings of the more basic data types. These are known as data structures.
It is not too difficult to define the variable "Plaintiff" at the beginning of the brief. The reader only has to look to the caption of the document for that definition (unless of course it is a kid's case.) Similarly, "Defendant" is a well-defined variable, but not so well defied as you might think. Without care the reader might find herself wondering if the writer meant Commissioner Astrue personally, the Commissioner as a iconic figure, the ALJ, the AC, the Assistant U.S. Attorney, or the Assistant Regional Counsel. So, there is where the variables start breaking down. (One assistant regional counsel called me to complain bitterly and loudly about a reply brief in which I hammered away for several paragraphs about a nearly-frivolous argument made by the "Defendant." She thought I meant her because she wrote the Defendant's brief. What a strange thing it was for her to confuse her variables that way!)
As we move further into the case we see that it become harder to define the variables. Many actors appear who are not listed in the cast of characters found in the caption. For example, we have Dr. Jones and Dr. Jones. One is the treating doctor, one works at DDS. (What is DDS? That too is a variable that needs to be explained.)
Eliminating all pronouns is a way of continuously declaring variables throughout the brief. Will the cagey reader pick up that Dr. Jones here means this "Dr. Jones" and "he" later in the same sentence means the same "Dr. Jones." Often, the answer is yes.
But defense attorneys will exploit any ambiguity to the Plaintiff's demise. So, after getting hosed on this over a period of many years of legal writing, I generally use the rule "no pronouns." I do vary from this a little, but very little.
Similarly, careful citation is needed to eliminate the possibility that one legal authority is misconstrued as being another. This kind of artful misreading is another prominent defensive tactic that can only be avoided by assiduous attention to properly declared variables from the getgo.
So, it makes a real difference if one has legal writing experience versus legal reading experience. A legal reader might find it tedious to see "Dr. Jones" repeated ad nauseum while wishing that the Plaintiff's attorney could write a little better. However, counsel's client is grateful when the Defendant has a red herring snatched from his plate and the case is won on facts and law rather than lost due to poorly-declared variables and too many little red fish.
I meant the tone to be tongue in cheek. And a cheeky kind of tongue in cheek at that.
I cannot answer your questions about my writing. I make no claims now for my own writing, either the writing I do here or the writing I do elsewhere. I have never made any claims for my own writing. I will continue to make no claims for my own writing. Readers will simply have to judge for themselves what to think about it—whether it be good; bad; legal; adversarial; or God forbid, boring.
Because I am determined to make no claim about my own writing, then it follows that I am unwilling to claim any particular standing to talk about writing. Just as readers will have to judge my writing for themselves, readers will also have to judge what I say about writing for themselves. Do I make sense? Am I persuasive? Or am I full of it, perhaps in a particularly pompous way?
As for Garner, his style guide is self-declaredly about legal writing. His index has 12 entries about pronouns. As I read them, these multiple entries are about how to manage pronouns for legal writing. None say use no pronouns.
What is more, many of famous writers Garner quotes have shown themselves willing to use pronouns. These may even qualify as legal writers. Flipping a few idle pages, I see Justice Holmes at 152 ("her pupils," "we see her daily," "we know her," "his deserts or needs," "his path"), with Clarence Darrow on the facing page ("his nature," "his life," "for the sake of his ideals").
My view is this: there are good ways and bad way to use pronouns. To use no pronouns is not a good way.
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