Proofreading in Legal Writing: Make It Clean (As Much As Humanly Possible)

If you’ve ever wondered how the brain creates the reality that each of us experiences or if you enjoy testing your brain with fun mental exercises, then Brain Games is the show for you.  Brain Games is a show on the National Geographic Channel that demonstrates the brain’s abilities (and, at times, shortcomings) through games and experiments as the viewer plays along.  In doing so, it also shows how easily the brain can be duped (check out episode 8 in the second season to see what I mean). 

After all, how many times have you sent out an e-mail thinking that it was free of typos only to discover an accidental error the next day and that, before you hit the “send” button, your brain was seeing what it wanted to see?  Brain Games confirms that, at times, the brain sees only what it wants to see.  This unfortunate reality is problematic for legal writers, however, because they are generally held to a high standard, and although an occasional typo may be excusable (or perhaps not even noticed in the first place), a piece of legal writing riddled with or even just guilty of several noticeable typos can quickly ruin the writer’s credibility.  Is there a way, however, to overcome the brain’s implicit bias and to correct a piece of legal writing for typos before it’s too late?

In my last column installment, I concluded my discussion on the principle of creativity; in this next-to-last installment, the time has come to pay attention to the not-to-be-ignored topic of proofreading.  Specifically, I’ll discuss tried-and-true proofreading methods that I developed and the common errors that I encountered while editing as a judicial clerk and as the editor in chief of a law school journal.  Having edited hundreds of pages of legal writing, whether that of my own or that of others, I know what a difference proofreading and/or editing can make in a piece of legal writing and am eager to share with you my tips and tricks.  So here we go.  

Let me start by pointing out that the most effective way for a legal writer to ensure a piece of legal writing is free of typos and other errors is for that writer to take her or his brain out of the equation.  The value of having a fresh set of eyes proofread a piece of legal writing can’t be measured: The new person will not only likely catch most of the typos but will also be able to point out any confusing sentences or phrases that make sense to the author but perhaps not to the intended readers.

Having someone else (or perhaps two or three others) proofread a piece of legal writing is most ideal but just isn’t always possible, I realize.  The best alternative for a legal writer, then, is for him or her to distance himself or herself by about one week (truly, one month would be even better) or at least for an afternoon and to try as much as possible to forget what was written in the meanwhile.  Then, with the freshest perspective possible, the writer should read through her or his draft three separate times, one paragraph at a time: once for spelling; once for grammar, punctuation, and mechanics; and once for overall readability (in other words, does the draft actually say what the writer intends for it to say?).  In my experience, focusing on much more than spelling or much more than grammar and punctuation at a time is pretty near impossible because catching errors in these categories requires a keen eye that has to be able to focus on one element at a time.  But let me be direct, and let me be clear with you right now: This method of proofreading is time-consuming and therefore should perhaps only be reserved for critical legal documents, like contracts, and highly authoritative audiences, like clients and courts.  Admittedly, legal writers may not always have the time for such intense proofreading sessions and must act accordingly.

So what does a legal writer do if he or she truly doesn’t have the time or, alternatively, has drafted something not deserving of so much time and brain power?  At a bare minimum, legal writers should attempt to read their drafts as strangers, meaning the way they’d read something new for the very first time.  Chances are that, if they don’t catch anything odd, then someone else may not either.  This cursory method of proofreading, however, is perhaps most suited for casual correspondence, like internal e-mails and notes, that are not treated as ultra-important pieces of legal writing.  Given that this method doesn’t take a terribly long time to execute, I personally think anything and everything a legal writer writes should at the least receive this cursory review.

Either way, whether proofreading a brief being submitted to the state supreme court or a memo to the boss, another way to avoid typos is to know what to look for during proofreading sessions.  What are some common errors I’ve seen in pieces of legal writing throughout my editing days?  First, the spelling of names is prone to error.  My suggestion: If proofreading a draft on the computer, then use “control” “F” to find those names and ensure they’re all spelled correctly.  Second, a comma before a dependent clause but not before an independent clause is another type of error I’ve seen.  Although using “control” “F” to find conjunctions and to check on whether or not a comma is needed before each of those conjunctions is a possible method for dealing with this type of error, doing so would most definitely be a tedious method, and thus the better way to handle this issue is likely by just keeping it in mind when proofreading.

Third, a lack of both subject-verb agreement and noun-pronoun agreement was a recurring error I encountered in the pieces of legal writing I edited.  Here’s an example: The constitution of each of the states are available online.  Any person can learn their constitutional rights by looking online.  What’s the true subject in the first sentence?  "Constitution," not "states," right?  And yet how easy is it to match the verb with the most recent noun?  What’s the antecedent noun in the second sentence?  "Person," but see how the pronoun “their” doesn’t match up with the singular noun “person”? 

When it comes to subject-verb agreement, legal writers are at risk of matching the verb with the most recent noun instead of the subject while, when it comes to noun-pronoun agreement, they’re at risk of forgetting to match up a singular noun with its singular pronoun.  Being aware of these common errors and the ones that each writer is personally inclined to make helps to train the writer, however, to either not make these errors in the first place or to find them once proofreading has begun.  A good proofreader makes for a good legal writer.

In this column installment, I’ve shown that, to be a successful proofreader, a firm commitment to finding typos and other common errors and an awareness of which types of pieces of legal writing deserve high levels of attention while proofreading are needed.  In my next and last installment, I’ll bring together everything I’ve discussed in all of my column installments so far to share some parting words.  Return next month to read my concluding thoughts on the topic of legal writing.

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