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Concision in Legal Writing: Make It Brief (to an Extent)

As a reporter for the campus newspaper at my undergraduate university and the editor for one of the university's student-organization newsletters, I quickly came to realize the role of concision in news reporting.  As a reporter, I regularly skipped certain words (like "on" before a day of the week) in articles in order to meet the assigned word count; as an editor, I myself was forced to cut down on articles submitted to me so that I could make them fit on their assigned pages.

In comparison to my experience as a news gatherer during my college years, I didn't typically operate under such stringent word limitations during my time as a law student (unless I was considering a rule like Tennessee Rule of Appellate Procedure 27(i), which generally limits arguments in principle briefs to 50 pages and in reply briefs to 25 pages).  Nonetheless, as a judicial clerk, I quickly came to realize that the principle of concision isn't to be ignored.  Indeed, most of the corrections that came back to me on judicial opinions I had drafted were related to wordiness.

But what, exactly, does it mean to be a concise legal writer?  And when might a legal writer deliberately decide to sacrifice concision in order to honor a different principle of writing?

According to the online Cambridge Dictionary (see http://dictionary.cambridge.org/us/dictionary/english/concise), the answer to the former question is that the word "concise" means "expressing what needs to be said without unnecessary words; short and clear."  The answer to the latter question is slightly more involved, and the question may be answered by exploring a series of examples, which the rest of this column installment will now focus on.

For starters, let's consider three variations of the same sentence.

Example 1: The witness testified that she saw a red scarf, jacket, and boot at the crime scene.

Example 2: The witness testified that she saw a red scarf, jackets, and boots at the crime scene.

Example 3: The witness testified that she saw red scarves, jackets, and boots at the crime scene.

In looking at the first example, is the sentence saying that (a) the witness saw a red scarf, a red jacket, and a red boot or that (b) the witness saw a red scarf, a non-red jacket, and a non-red boot?  My gut instinct sides with option (a), and yet I can also easily see how option (b) might very well be the intended meaning.  To avoid any possible ambiguity, the sentence in this example could easily be reworded to match the intended meaning.  Consider: The witness testified that she saw a red scarf, a red jacket, and a red boot at the crime scene (option (a)) versus The witness testified that she saw a red scarf, a jacket, and a boot at the crime scene (option (b)).  Is there any confusion now as to which items are red and which aren't?  I'd certainly hope not.

As for the second example, the writer is probably saying that the witness saw a red scarf, non-red jackets, and non-red boots.  In other words, the phrase "a red" only applies to the noun "scarf" because the next two nouns in the series are plural in form.

Lastly, the third example, like the first example, can also be interpreted in two different lights: either as (a) the witness seeing red scarves, red jackets, and red boots or (b) the witness seeing red scarves, non-red jackets, and non-red boots.  For clarity, the sentence in this example could also easily be reworded as previously modeled for the first example.  In other words, the sentence could be rewritten as the witness seeing red scarves, red jackets, and red boots (option (a)) or the witness seeing jackets, boots, and red scarves (option (b)).

What the above three examples should show is that, if a sentence is reasonably open to more than one interpretation, then repeating certain elements of the sentence (like an adjective) or reordering items in a series is likely the way to go.  Although this advice might seem a bit obvious to the reader, I believe it does bear mentioning because it's easy to forget when one writes almost constantly and because I do in fact remember coming across at least one case in which the primary issue was whether the adjective preceding a noun applied to the second noun in the series of nouns.  In that case, the court had to rely on legislative history to ascertain the meaning of the language at issue.

Nonetheless, there may be times times when the context of a sentence and the obvious meaning of each word in the sentence are such that it probably doesn't bear repeating an adjective or a similar part of speech within the sentence.  Here's an example: The defendant testified that he knew of undergraduate majors and minors offered at the university.  In this example, the adjective "undergraduate" is omitted before the noun "minors," and yet the reader isn't likely to start assuming the sentence is referring to, say, persons under the age of 18.  In other words, the writer is safe in not repeating "undergraduate" because no one is likely to interpret the meaning of "minors" as referring to anything other than courses of study.

On the other hand, the case can be made that, although repeating certain elements in a sentence may not always make the sentence any clearer, doing so could help the reader not to forget important parts of the sentence (like the subject of the sentence).  What's an example?  The witness could easily see the red scarf, which she found at the crime scene off in the distance, and had always been considered as having strong eyesight.  In this example, although repeating the subject of the sentence--the witness--might be unnecessary in the second part of the sentence before the phrase "had always been," it'd help to re-orient the reader, who was just reading about the red scarf, to the true subject of the sentence.  Doing so saves the reader time, which is one of the ultimate goals of writing concisely in the first place, by not forcing her or him to reread the sentence.

Now let's turn to a different scenario related to the principle of concision in legal writing.  Let's say I want to stress a defendant's otherwise clean record in justifying his suitability for alternative sentencing.  He has no previous convictions.  He also has no previous arrests.  The principle of concision would dictate this type of sentence: The defendant has no previous convictions or arrests.  Powerful stuff?  Well, it could be more impactful, so let's sacrifice concision for dramatic effect for the moment and instead write this: The defendant has no previous convictions.  Nor has he ever had any previous arrests.

Do you, the reader, feel more impressed with the first or the second version?  If you're like me, then the second version is more compelling and, therefore, more convincing.  In other words, redundancy, which can help place emphasis on certain ideas, may very well lead to more convincing legal writing when crafted for that effect.  Therefore, when omitting words, perhaps the legal writer's question shouldn't be whether the word at issue is unnecessary but rather whether or not the word can be helpful to the purpose of the piece of writing.

On a final and related note to the principle of convincingness, let's consider one more example of a concisely written sentence: Are you representing the defendant or plaintiff in this case?  Now what's missing from this example?  All my astute readers will answer that the article "the" is missing before the noun "plaintiff."  Does omitting the article cause confusion for the reader?  No, not really.  Is dramatic effect lost by the omission?  No, I'd say not.  And yet something seems lost to me when I read such sentences in e-mails or in formal publications.  Perhaps this is because I've ultimately come to expect nouns to be each accompanied by an article, and so when I see a noun without an article (unless something like an adjective is already preceding the noun), I end up finding the sentence to be a bit informal, which makes a formal piece of writing a little bit less credible and, therefore, less convincing to me on a subconscious level.  Overall, regardless of whether or not my expectation of generally seeing an article with a noun holds true for most, reader expectations shouldn't be ignored in a piece of legal writing, a genre of writing in which the credibility of the writer is paramount to helping convince the reader of the writer's arguments.

In this column installment, I've begun to explore the balancing act between concision and clarity as well as between concision and convincingness by introducing these concepts with specific examples.  In the next few installments, I'll dig deeper into even more specific examples I came across during the course of my judicial clerkship experience as to when concision can be achieved without sacrificing a different principle of writing.  For starters, return next month to read about certain easily omittable (depending on the situation of course)--and at times downright pesky--words, including "of," "that," and "it is."

1 Comments

EnrouteLLB

Hello, Anna Swift.  I enjoyed reading your instalments on legal writing.  Frankly, I advocate any attempt to help the masses better their writing as I feel the state of writing has deteriorated.  Perhaps such deterioration is due to our dependence on technology or to the pervasion of social media.  Alas, I digress.  I would like to note that your post seems to err in saying that concision is mutually exclusive to some other principle of good writing.  Concision need not be sacrificed in good (legal) writing.  After all, the definition of concise includes the concept of necessity: if it is necessary to include a word for clarity, its inclusion can still render a statement to be concise. Let us not confuse concision with brevity; being concise means being both short AND clear.

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