December 2, 2002

Ohio Lawyers Weekly

GUEST ARTICLE

Six Short Steps To Better Writing

By Judge Mark P. Painter

Last month, we railed against using three words when one would do. This month, we discuss six short rules that will vastly improve your writing.

Rule 22: Hyphenate Phrasal Adjectives

The reader is confused by nouns acting as adjectives, or by two adjectives together modifying one noun. Often, the reader will have to back up and read again.

Sentences like these fool the reader:

The public policy exception is rooted…

The law abiding citizen…

The reader may be fooled into thinking that the public or the law is the subject of the sentence, rather than a modifier of the actual subject. Just add the hyphen, and the reader knows that the hyphenated words are modifiers.

Words that end in -ly are not hyphenated, because they are adverbs—or because the -ly tells the reader that the word is a modifier, not a noun.

Always hyphenate phrases like "wrongful-discharge suit," or "public-policy exception." Just take my word for it, the hyphens increase readability.

Rule 23: Always Question 'Of'

Write Ohio Supreme Court, not Supreme Court of Ohio.There is nothing wrong with the possessive.Write "the court's docket," not "the docket of the court." Somewhere, someone told lawyers not to use possessives, maybe because "docket of the court" sounds more formal than "the court's docket." It is not. It is just clutter. And much harder to read.

Use the "find" feature on your word processor to hunt down these awkward constructions. Some uses of of are fine, but usually, if the word is possessive, just make it so with an apostrophe.

A possessive is fine, as long as the idea is possessive. But a possessive is different than a plural. Lately, everyone but lawyers seems to have fallen into the "creeping apostrophe." This phenomenon does not do away with an of, it just adds an apostrophe for no reason, making all plurals into possessives.

Hot Dog's for Sale

Smith & Co., Surveyor's

Hamburger's $1.99

Alas, I can no longer exempt lawyers One firm has a sign on their historic building: "Samuel Hannaford & Sons, Architect's, 1890."

Rule 24: Use the Serial Comma

In a list of three or more, always insert the serial comma Some writers insist on omitting the last comma, before the "and." Do not omit the last comma—doing so can cause misinterpretation.

"Chickens, ducks, and geese" is clear "Chickens, ducks and geese," allows someone to assert that "ducks and geese" are a distinct category Using the serial comma never creates ambiguity; leaving it out sometimes does This is another rule that you may not break.

Rule 25: Avoid Unnecessary Preambles

Cut useless preambles Unnecessary preambles can weaken or hide the point they introduce And they add nothing except distraction.

Here are some unnecessary preambles:

Let it be emphasized…

It is important to add that…

It may be recalled that…

It is of significance that…

It is interesting to note that…

In this regard…

Let me say this about that…

These phrases add nothing but clutter In speaking, this type of transition is sometimes necessary to give the listener a break But it never is in writing.

Rule 26: Purge 'Lawspeak'

Eschew legalese "Hereinafter," "aforesaid," and the like do not add anything but wordiness and detract from readability Many studies show that legalese is the number one complaint of appellate judges and law clerks "Hereinbeforementioned" is as unreadable as it is silly Let's stop writing like we were using quill pens, slumped over a Dickensian desk.

This is a rule you cannot break, or even bend Never, ever, use legalese.

The ancient "now comes plaintiff, by and through [is there a difference?] his undersigned attorney. . . " is junk No one reads it anyway The more clutter and cobwebs you can get out of your document, the more room you have to make your argument.

Use Latin phrases sparingly A few — res ipsa loquitur, respondeat superior — are acceptable, but do not litter your brief or memo with what Daniel Webster called "mangled pieces of murdered Latin." I saw a case in which the appellate judge, describing what happened in the trial court, wrote that the trial judge had an ore tenus hearing I had to resort to Black's Law Dictionary; it means "oral." (as opposed to a written or cyberspace hearing?)

Cut out such, such as in such motion The or that almost always works Pursuant to usually may be translated as under. That is, write under R.C. 2923.12…not pursuant to R.C. 2923.12… Sometimes, when I'm bored with a brief, I count the number of times pursuant to appears.

Rule 27: The Parties have Names

Have you ever represented a client without a name? Only if you represented Prince during a certain period The parties have names.

Do not go through your whole brief calling parties plaintiff-appellant and defendant-appellee, or the like Appellant would be enough, but it is much better to call the parties by name When we use procedural titles, the reader must translate to understand what we mean When a brief refers to "Plaintiff/Appellant," I have to think, "Well, that's the side that brought the suit, lost in the trial court, and now wants us to reverse." The procedural titles change throughout the case, but the names remain the same The names do not require the reader to translate Just Smith or Jones is fine.

Using names also humanizes your client—even a corporate name; "Smithco," sounds much more human than "Plaintiff/Appellant/Cross-Appellee." One brief concerned a dispute between two corporations The brief called them "the bank" and "the card shop" (writer's client) It worked well.

Be sure to be consistent and not to switch back and forth between "appellant," "Jones" and "plaintiff." I recently read a brief that said, "Defendant-Appellant Mary Jones (hereinafter usually referred to as Jones)." Usually? Did that mean she was sometimes Barbara Smith? Gasp.

And just write — once at the beginning — "Plaintiff-Appellant Amalgamated Widgets of North America, Inc. ("Amalgamated")," not "hereinafter called"—no lawspeak And if your party is John Smith, you may safely call him Smith without first using "John Smith ("Smith")."

A great example of unnecessary labeling is the following, taken from a brief in our court:

"The present action stems from injuries suffered by plaintiff/appellant Ann Rogers Smith ("Smith"), on April 22, 2000, after being thrown by her horse in Clippenger Field (the "Field") located in the City of the Village of Indian Hill, Ohio ("Indian Hill") On that day, Paula Jones ("Jones"), allowed her two Irish Setters ("the dogs")…"

There were no other Smiths, Jones, cities, dogs, or fields involved in the case Each set of parentheses just added more clutter.

Remember, the parties have names, not procedural titles, and common names do not have to be identified.

Next month we finish the "30 Rules." But the column will continue — I can always make up more rules.

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Judge Mark P. Painter has served on Ohio’s 1st District Court of Appeals since 1995, after 13 years on Hamilton County Municipal Court in Cincinnati. He is one of the most-published judges in Ohio history, with more than 270 of his decisions published nationally. He is the author of “Ohio DUI Law, Ohio Appellate Practice,” and “The Legal Writer, 2nd Edition: 40 Rules for the Art of Legal Writing.” Painter is an adjunct professor at the University of Cincinnati College of Law, and has given more than 100 seminars to judges and lawyers.