SEPTEMBER 2017

Journal
VOL. 89 | NO. 7
NEW YORK STATE BAR ASSOCIATION

e L a w :
Th
’s Y o u r
It
s i n e s s
Bu
e
L a w Practic
Th e
Issue
n a g e ment
Ma
rian C. Rice
by Ma
Edited

Starting in October, all issues of the

Journal will feature a section on practice
management and the business of law
– topics of relevance to all attorneys in
our quickly changing legal landscape.

Electronic copy available at: https://ssrn.com/abstract=3033863

THE LEGAL WRITER
BY GERALD LEBOVITS

Legal-Writing Exercises:
Part III

I
n the last issue of the Journal, the ositional phrase (example: “the editing tial information. If the word or concept
Legal Writer discussed cowardly of articles” becomes “editing articles”). following that or which is one of sev-
qualifiers, legalese, modifiers, and To write more crisply, write in the eral, use that. If the word or concept
nominalizations. This issue of the active voice, and avoid nominaliza- expresses a totality, use which. Which
multi-part series covers wordiness; tions and legalese. should be surrounded by a comma,
mistakes involving that, which, who, whereas that shouldn’t have commas
and whom; tone; and absolute lan- Exercises: Wordiness around it.
guage and adverbial excesses. At the Rewrite the following sentences. Use that as a structural device
end of each section are editing exercis- 1. The Supreme Court of the State to aid understanding. Example: “The
es. You can add words, change words, of New York has subject-matter People alleged defendant committed
delete words, or rearrange words — jurisdiction over this case. murder.” Becomes: “The People alleged
whatever you think is best. After com- 2. The attorney hasn’t filed the that defendant committed murder.” In
pleting all the exercises, look at the motion as of yet. this sentence, adding that aids under-
answers at the end of the article to see 3. He’s the type of witness who’d standing because “The People” can’t
whether your answers are correct. lie under oath. allege a defendant.
4. The jury’s decision will have an
Wordiness impact on the plaintiff’s future.
Short sentences are read and under- 5. Whether the court will adjourn Writers’ use of the word
stood more easily than long ones. And the case is dependent on several of is a main contributor
many legal documents are unnecessar- factors.
ily wordy. Writers’ use of the word of is 6. The crime was committed in
to wordiness.
a main contributor to wordiness. When October of 2012.
possible, invert or rearrange a sentence 7. A large percentage of women Eliminate the nonstructural that.
to delete of. attended the judge’s seminar at Example: “The advice that he gave to
Some tips: Columbia Law School. the class is not to be wordy.” Becomes:
• Delete and, if necessary, replace as 8. The decision was written by “The advice he gave to the class is not
of. Judge Learned Hand. to be wordy.”
• Delete of after “all” and “both,” 9. Defendant stated that after he Use that to distinguish between
except when followed by a pro- gave Plaintiff advance notice direct and indirect discourse. Direct
noun. of termination of employment, discourse: “The senior partner said, ‘Bill
• Delete of after “alongside,” Plaintiff sued. researched the issues.’” Indirect dis-
“inside,” “off,” and “outside.” 10. Both of the judges decided the course: “The senior partner said that
• Delete of in dates and years. same case. Bill researched the issues.” Not: “The
• Revise sentences to remove of senior partner said Bill researched the
abstractions, such as “factor of,” That vs. Which vs. Who vs. Whom issues.” Always eliminate the extra
“kind of,” “matter of,” “sort of,” Which word you choose between that that. Example: The court attorney
“state of,” and “type of.” and which affects how your readers explained that although she will only
• Use “except for” to replace “out- will understand the sentence. That is draft the decision, that no one will
side of.” restrictive (defining); which is non- read it.” Becomes: “The court attorney
In addition, remove redundant restrictive (non-defining). Defining explained that although she will only
words and phrases (example: “In some clauses provide essential information draft the decision, no one will read it.”
instances” becomes “Sometimes”) and that is important for the sentence; non-
substitute one word for a wordy prep- defining clauses introduce nonessen- Continued on Page 58

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Electronic copy available at: https://ssrn.com/abstract=3033863

The Legal Writer
Continued from Page 64 emotion and reaction from your read- incontrovertible? If you have answers
ers. Because legal writing is formal, to these two questions, you should
Replace “that that” with “that this” or avoid casual, impertinent, and joking explain them. Although concision is
“that the.” tones. Keep your sentences short. Short key, don’t use an adverbial excess
Differentiate between that (or which) sentences are businesslike and to the to save words. If you don’t explain
and who. That and which refer to things, point. To avoid seeming biased, use yourself thoroughly, your readers will
entities, concepts and animals. Who objective language whenever possible. begin to doubt the strength of your
refers to people and to named animals When conveying thoughts on a matter arguments and the veracity of your
and animals that have special quali- or person, remember that a true state- claims.
ties. Who and whoever are used to refer ment needn’t contain disparaging or
to subjects and subject complements, otherwise offensive language. Avoid Exercises: Absolutes and
whereas whom and whomever are used biased modifiers and conclusions. Adverbial Excesses
to represent objects. To choose the Don’t tell; show. Don’t just write some- Rewrite the following sentences.
correct pronoun, isolate the subordi- thing. Set out the facts that show why 1. When Mr. Robinson was arrest-
nate clause and then decide how the you’re right. Cut your adjectives and ed for possession, he said that he
pronoun functions within it. Who occa- adverbs. Understate; never exaggerate. was “just holding it for a friend”
sionally functions as a subject comple- — which is ridiculous; that’s
ment in a subordinate clause. Subject Exercises: Professional Tone never the truth.
complements occur within the linking Rewrite the following sentences. 2. Ms. Williams is a drug addict.
verbs am, are, be, been, being, and is. 1. An employee who’s running As you know, Your Honor, drug
late should at least call to let his addicts always lie about their
Exercises: That vs. Which vs. Who manager know he’ll be late. drug habits.
vs. Whom 2. The prosecutor’s motion should 3. The complaint is obviously ridic-
Rewrite the following sentences. be denied. His argument is based ulous.
1. M&G is the law firm who repre- on a preposterous claim. 4. The witness’s testimony does not
sents the defendant. 3. The lawyer was very rude to the coincide entirely with the facts.
2. The law clerk gave the judge the judge. He’s clearly lying.
relevant law, which was meant 4. The egregious crime in question 5. The fact that Ms. Daniels has
to help the judge decide the was committed a year ago today. stolen once before from Macy’s
motion. 5. Anyone can see that Mr. Lewis proves she’s a kleptomaniac.
3. It’s uncomfortable to sit on a fired her because of his biased 6. The court attorney always reads
chair which doesn’t have a cush- views. the calendar in court on Wednes-
ion. 6. Pursuant to CPLR 3211 (a), plain- day mornings.
4. The Lower Manhattan office that tiff has no standing to sue. 7. Dr. Norman is undoubtedly
is located in Tribeca is close to 7. Come on, Judge. You know as responsible for the patient’s
the defendant’s home. well as I do that that excuse is a death.
5. The court officer that works on lie. 8. The insurance company is clear-
Wednesdays never recognizes 8. Defendant took his hatred for his ly not liable for the cost of the
the judge’s interns. mother-in-law to a whole new surgery.
6. The witness saw the man that level, and he killed her. 9. The plaintiff’s attorney delivered
stole the car. 9. She can’t be trusted. She’s a liar an extremely underwhelming
7. The court held the 500-pound and everyone knows it. closing argument.
man in contempt. 10. The victim bullied the defen- 10. I agree wholeheartedly.
8. This gun is the weapon which dant in the past. What makes Now that you’ve completed the
was used in the bank heist. you think that the defendant exercises (we hope you didn’t peek
9. The woman identified the man wouldn’t kill the victim when at the answers), study the Legal Writ-
that had robbed her. she had the chance? er’s answers and compare them with
10. The deliberation lasted for seven yours.
hours because the jurors couldn’t Absolutes and Adverbial Excesses
decide the witness that was tell- Avoid using absolutes like always or Answers: Wordiness
ing the truth. never. These words are rarely accurate. 1. The word of is unnecessary in
Avoid adverbial excesses, too. Legal this sentence. Eliminate it. Cor-
Professional Tone writers often use words like certainly, rected Version: The New York
When writing, you get to choose which clearly, and undoubtedly in place of State Supreme Court has subject-
tone you’ll use. This decision is impor- a strong argument. Why is a state- matter jurisdiction over this case.
tant because your tone is what evokes ment clear? What makes a statement

58 | September 2017 | NYSBA Journal

Electronic copy available at: https://ssrn.com/abstract=3033863

2. As of creates unnecessary wordi-
ness. Eliminate it. Corrected Ver- Because legal writing is formal, avoid
sion: The attorney hasn’t filed the
motion yet. casual, impertinent, and joking tones.
3. The words “is the type of wit-
ness who” are superfluous.
Delete them. Corrected Version: tence is a defining clause. Use that this particular gun is the one
He’d lie under oath. that. Corrected Version: The law used in the heist. This sentence
4. Make this sentence more suc- clerk gave the judge the relevant is a defining clause. Use that.
cinct by replacing “have an law that was meant to help the Corrected Version: This gun is the
impact on” with the less-wordy judge decide the motion. Or, weapon that was used in the
“affect.” Corrected Version: The better, delete “that was meant”: bank heist.
jury’s decision will affect the The law clerk gave the judge the 9. Who should be used when refer-
plaintiff’s future. relevant law to help the judge ring to people. Corrected Version:
5. This sentence contains a nomi- decide the motion The woman identified the man
nalization. Remove it. Corrected 3. Because the subject of this sen- who robbed her.
Version: Whether the court will tence is one type of chair, it’s 10. The important information in
adjourn the case depends on sev- restrictive, which means we this sentence is that the jurors
eral factors. should use that instead of which. deliberated for seven hours. The
6. Using the word of in dates and Corrected Version: It’s uncomfort- latter half of the sentence con-
years is superfluous. Corrected able to sit on a chair that doesn’t tains nonessential information.
Version: The crime was commit- have a cushion. Use which. Corrected Version: The
ted in October 2012. 4. Removing the part of the sen- deliberation lasted for seven
7. Make this sentence more concise tence that tells us in which hours because the jurors couldn’t
by replacing “a large percentage neighborhood the Lower Man- decide which witness was telling
of” with the less-wordy “many.” hattan office is located doesn’t the truth.
Corrected Version: Many women change the meaning of the
attended the judge’s seminar at sentence. Use which. Corrected Answers: Professional Tone
Columbia Law School. Version: The Lower Manhattan 1. This sentence lacks tact. Cor-
8. Although this sentence doesn’t office, which is located in TriBe- rect it. Make the sentence gen-
look wordy, it is. The sentence Ca, is closest to the defendant’s der neutral. Corrected Version:
should be written in the active home. Employees should notify their
voice. Corrected Version: Judge 5. Because “[t]he court officer” manager if they’re going to be
Learned Hand wrote the deci- is the subject of the sentence, late.
sion. use who. Corrected Version: The 2. Calling the argument “preposter-
9. This sentence contains many court officer who works on ous” is unnecessarily disparag-
redundant words. Eliminate Wednesdays never recognizes ing and will lead to reader push-
them. Corrected Version: After the judge’s interns. Or, if there’s back. Think twice before using
Defendant terminated Plaintiff’s only one court officer: The court biased conclusions.
employment, Plaintiff sued. officer, who works on Wednes- 3. This sentence contains disparag-
10. Delete “of” after both. Corrected days, never recognizes the ing language. Explain what made
Version: Both judges decided the judge’s interns. the lawyer come across as rude.
same case. 6. Because “a man” is a person and Corrected Version: The lawyer
the person is the subject of the interrupted the judge several
Answers: That vs. Which vs. Who verb in this sentence, use who. times during the oral argument.
vs. Whom Corrected Version: The witness And cut “very.”
1. Because the sentence is about saw the man who stole the car. 4. There’s no need to call the crime
which law firm represents the 7. Adding a structural “that” to the “egregious.” Use facts to let oth-
defendant, the name of the law sentence will make it clearer. The ers decide whether the crime
firm representing the defendant judge didn’t hold a 500-pound was egregious. Eliminate the
is essential information. Corrected man. Corrected Version: The court words “in question.” Corrected
Version: M&G is the law firm held that the 500-pound man Version: Defendant committed
that represents the defendant. was in contempt. the crime a year ago today.
2. Because this sentence implies 8. Because this sentence is about 5. The unedited sentence contains
that the law clerk gave the judge which gun was used in the bank both an absolute word (“any-
only the relevant law, this sen- heist, it’s essential information one”) and accuses Mr. Lewis of

NYSBA Journal | September 2017 | 59

Electronic copy available at: https://ssrn.com/abstract=3033863

 prejudice. Rewrite the sentence 9. The tone of the unedited sen- 2. It’s inaccurate to say that drug
to contain neither. Corrected Ver- tence is disparaging. Revise it. addicts “always” lie about their
sion: Mr. Lewis fired his assis- Corrected Version: Your Honor, I drug habits. Rephrase the sen-
tant. ask that the witness’s testimony tence. Corrected Version: Ms. Wil-
6. This sentence contains legalese. be stricken because she has lied liams is a drug addict. As you
Legalese is unprofessional tone. under oath. know, Your Honor, she might
Rather than “pursuant to,” use 10. This statement should be not be entirely forthcoming
a common and simple word like rephrased to avoid using con- about her drug habits.
“under.” Corrected Version: Under demning and disparaging 3. Calling a complaint “obviously
CPLR 3211 (a), plaintiff has no language. Corrected Version: Evi- ridiculous” is rude. Write that
standing to sue. dence proves that the defendant the complaint “lacks merit” or
7. The tone of this sentence is wanted revenge on the victim for is “unfounded” instead. Then
too casual and dramatic. Cor- bullying him in the past. explain why it lacks merit or is
rected Version: The excuse is a lie unfounded. Corrected Version:
because of X, Y, and Z. Answers: Absolutes and The complaint is unfounded
8. The unedited sentence contains Adverbial Excesses because of X, Y, and Z
an accusatory implication (“he 1. The unedited sentence contained 4. The words “he is clearly lying”
. . . killed her”). We don’t know both a disparaging word (“ridic- are both superfluous and dispar-
whether the defendant really ulous”) and an absolute word aging. Remove them. Corrected
killed his mother-in-law. Cor- (“never”). Remove both. Correct- Version: The witness’s testimony
rected Version: Defendant stated ed Version: When Mr. Robinson doesn’t coincide with the facts.
that he hated his mother-in-law, was arrested for possession, he 5. Just because Ms. Daniels has stolen
and the evidence indicates that said he was “just holding it for a once before doesn’t mean she’s a
he is responsible for her death. friend.” kleptomaniac. Delete the disparag-
ing phrase. Corrected Version: Ms.
Daniels has stolen from Macy’s.
6. In this sentence, using “always”

Informed
is correct because it’s accurate.
The court attorney read the cal-
endar only on Wednesday morn-

Consumers Make ings. The sentence is correct.

7. Undoubtedly is an adverbial excess.
Delete it. Corrected Version: Dr. Nor-

Better Clients man is responsible for the patient’s

death because of X, Y, and Z.
8. Clearly is an adverbial excess. Get
rid of it. Corrected Version: The
insurance company isn’t respon-
LEGALEase Brochure Series From sible for the cost of the surgery.
The New York State Bar Association 9. The word extremely adds little
to the sentence. Remove it. Cor-
25 titles on topics your clients need rected Version: The plaintiff’s
to know...written by experts from attorney delivered an under-
NYSBA’s Sections and Committees. whelming closing argument.
10. The word wholeheartedly adds
Display Them. Send Them. Use Them. little to the sentence. Remove it,
unless you want to be dramatic.
Corrected Version: I agree. n
For more information, call

800-582-2452 or
GERALD LEBOVITS ([email protected]), a
New York City Civil Court judge, is an adjunct at
Columbia, Fordham, and NYU Law Schools. He
518-463-3724 or thanks judicial interns Alexandra Dardac (Ford-
Order online ham University) and Rosemarie Ferraro (Univer-
sity of Richmond) for their research.
Mention Code PUB1046 @ www.nysba.org/legalease

60 | September 2017 | NYSBA Journal

Electronic copy available at: https://ssrn.com/abstract=3033863