LovelyLadyLaw7

Consistency in Legal Writing: Make It the Same (to an Extent)

Starting a new job, whether as a lawyer or some other professional, is no easy business.  No matter how much education and prior work experience someone has accrued prior to starting a new job, each new job seems to come with its own set of challenges.  When I started my position as a judicial clerk, I was fortunate enough to have wonderful colleagues who were willing to show me the ropes; that said, it still took time and effort for me to scale those ropes.

Of the various ropes I learned to climb during the course of my judicial clerkship, the most formidable one for me was that of becoming a ghost writer for my judge.  Judicial clerks operate as ghost writers for their judges by helping to draft judicial opinions that eventually receive publication under the judges' names, and so one of my tasks early on as a judicial clerk was to learn my judge's writing style.  In learning to write like my judge, however, I soon found myself becoming obsessed with a certain principle of writing--that of consistency.  Admittedly, I wanted everything, where feasible, to be written the same way so that I could more easily learn and train myself to write in that very same way.  In hindsight, however, I now see that I probably focused more than was necessary on achieving consistency when drafting and editing judicial opinions.  After all, taking a different approach within a draft judicial opinion could've been refreshing.  Aided with this perspective of hindsight, I can now more fairly consider the topic of consistency in legal writing.

In my last column installment, I focused on the principle of cohesion; in this installment, I'll turn to the principle of consistency by discussing what value consistency holds and by identifying the elements of a piece of legal writing that perhaps deserve to stay consistent throughout.  (For an excellent discussion on the topic of consistency, see http://faculty.washington.edu/farkas/dfpubs/Farkas-Concept%20of%20Consistency%20in%20Writing%20and%20Editing.pdf.  Although several types of consistency exist, this installment will focus on consistency in word choice (i.e., semantic consistency) because word choice was what I focused on the most when I learned to become a ghost writer.)

First things first: Let me note that, for purposes of this column installment, I take "consistency" to mean the use of the same term throughout a piece of legal writing to refer to the same item (i.e., the same noun, verb, adjective, adverb, or preposition).  In other words, each item introduced in a piece of legal writing should be identified throughout, where feasible, with the same term or a shortened version thereof in order for the piece to be written consistently.

With this understanding in mind, why not strive for consistency in all aspects of a piece of legal writing?  For example, once an action or a thing is described in a certain way, why not use that same description throughout?  Although doing so may seem ideal for simplicity's sake, remaining consistent throughout long pieces of legal writing can actually become rather challenging.  More importantly, though, something is lost when a legal writer becomes overly consistent.

What is lost in the overly consistent piece of legal writing, I'd submit, is the principle of creativity.  Too much consistency can quickly become boring not only for the reader but also for the writer.  Creativity, on the other hand, can help keep a piece of legal writing interesting as well as help keep the writing process fun.

So exactly what value does consistency have in a piece of legal writing?  In my mind, consistency is important to the extent that it prevents confusion.  In other words, if a reader would be left wondering what two different terms refer to when those two terms are actually intended to mean the same item, would be left wondering why different terms are used to describe the same item, or would be aided in remembering important details of a case by the use of one term as opposed to interchangeable terms, then consistency should probably rule the day. 

What elements should generally stay consistent within a piece of legal writing in order to avoid confusion for the reader?  Perhaps the easiest example for me to give of such an element is that of pinpointed terms.  By "pinpointed terms," I mean instances in which an item within a piece of legal writing is followed by a parenthetical that consists of a shorter phrase or single word enclosed in quotation marks.  At that point, the writer has purposefully directed the reader's attention to the parenthetical and is instructing the reader to associate the item with the term included in the parenthetical.  To refer to that item with different terminology thereafter would cause the parenthetical to become pointless and would only confuse the reader.

Another example of an element generally deserving consistency is that of party and witness names.  Cases tend to involve many different characters, and so establishing a uniform system of references for each character can help the reader more easily keep track of each character.  For example, a legal writer could refer within a piece of legal writing to the defendant in a case as "the Defendant" after first introducing the party by name.  Switching back and forth between the defendant's actual name and "the Defendant" should then be avoided so that the reader only needs to remember the party by one term.  Equally important is that capitalized terms--like "the Defendant"--don't accidentally become uncapitalized by mistake.  Indeed, while "the Defendant" refers to the defendant in the case, "the defendant" technically refers to a defendant in a different case.

A final example of an element generally deserving consistency is that of legal terminology.  A piece of legal writing typically revolves around the interpretation and application of a legal term(s).  Because such legal terms are defined terms, the legal terms should be referred to consistently throughout.  For example, the term "first degree murder" should generally be referred to with those same words each time as opposed to an elegant variation like the term "premeditated murder."  Doing so will help keep the reader, who is expecting a thorough definition and not an alternative term, on track.

The above are just some examples of elements that should generally remain consistent throughout a piece of legal writing.  Perhaps other elements (such as any important details of a case that the writer wishes for the reader to remember) should also remain consistent.  Nonetheless, so long as the reader won't be confused, then there's no reason that I can see as to why an item has to be referred to the same exact way each time.  After all, the best cases are those that can told as stories, and stories require a certain amount of creativity to be entertaining.

In this column installment, I've identified at least three elements that should generally remain consistent throughout a piece of legal writing and argued that the principle of consistency should be balanced with that of creativity.  In my next installment, I'll continue discussing a topic already introduced above.  Return next month to read about party names.

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