CONCISE IS NICE!

AN AID FOR WRITING CONCISELY 1

© 2010 The Writing Center at GULC. All rights reserved.

A legal document that concisely conveys the same message in 10 pages is more
useful than one that rambles on for 20 pages. But writing concisely does not mean
hacking your document down to size. As you pursue concision, do not sacrifice
important ideas or clarity of expression. You should strive to express important ideas in
sufficient detail to ensure reader comprehension. Only then, trim the fat from your
writing.

The following principles are designed to help you, the legal writer, produce a
concise written product. 2 Keep in mind that while this document provides many tips, it is
not comprehensive.

To write concisely, you must control your writing style. Choosing a direct and
lucid style generally prevents wordiness. However, writing a briefer document demands
more than just a concise writing style. You can also control the pure magnitude of a
document’s content though the scope and depth of analysis. This document does not
cover scope and depth in detail, but you should be aware that early choices as to the
scope of your analysis, i.e., also choosing relevant and less relevant topics, as well as the
depth of your analysis, i.e., choosing to devote significant space to case facts and
reasoning, dramatically affects the length of your written product.

I. Concision through Style

a) Use Concrete Language

Using concrete language instead of abstract language promotes concise writing.

Abstract language refers to general and vague concepts, such as “truth,” “fairness,” and
“kindness.” Abstract language often utilizes jargon and gets to the point only after
passing several roundabouts. Concrete language is plain. But plain English need not be
Dick-and-Jane language. Concrete language uses clear, direct statements that convey
your meaning accurately.

Abstract: To excel in law school, you should consider working hard in the
various assignments you receive and preparing your mind for the
rigors of the law.

1
2010 update by Jonathan Eser
2
The principles, with slight modification, derive from JOSEPH WILLIAMS, STYLE: TEN LESSONS IN CLARITY
AND GRACE (7th ed. 2003), CHARLES R. CALLEROS, LEGAL METHOD AND WRITING (2d ed. 1994) FRANK E.
COOPER, WRITING IN LAW PRACTICE (2d ed. 1963), GERTRUDE BLOCK, EFFECTIVE LEGAL WRITING (4th
ed. 1992), and RICHARD C. WYDICK, PLAIN ENGLISH FOR LAWYERS (4th ed. 1998).

1
Concrete: To excel in law school, you must go to every class, do your
reading, and take notes.

b) Focus on the Actor, the Action, and the Object with Active Verbs

When you use active instead of passive verbs, your writing becomes briefer and
clearer. Using passive verbs promotes using wasted words. One way to remedy passive
verbs use is to ask: “Who is doing what to whom in this sentence?” Then rewrite the
sentence to focus on three key elements, the actor, the action, and the object of the action.

Not only do passive verbs add length, but they also divert attention from the most
important position in the sentence—the beginning—where the reader wants to find the
actor and the action.

Passive Active
The brief was read by us. We read the brief.
The evidence was suppressed by the court. The court suppressed the evidence.
The holding was reached by the court The court held.
The argument was presented by the The plaintiff argued.
plaintiff.
A complaint was filed by the union. The union filed a complaint.
Our conclusion is supported by the The legislative history supports our
legislative history. conclusion.
It is possible for the court to modify The court can modify the judgment.
the judgment.

2
c) Use Verbs, Avoid Unnecessary Nominalizations

The law describes the real world, a world where people live, breath, lie, cheat,
steal, sue, and die. But lawyers tend not to use verbs to describe these actions. Lawyers
use nominalizations.

A nominalization is just a verb that has been turned into a noun, for instance act
becomes take action, assume becomes make assumptions, and conclude becomes draw
conclusions. But as a writer uses more nominalizations surplus words start to gather.
Cut out excess nominalizations, and you cut out surplus words.

Nominalizations can often be spotted by their endings:

• -al
• -ment
• -ant
• -ence
• -ion
• -ent
• -ancy
• -ency
• -ance
• -ity

Nominalization: Verb:
The implementation of the plan by the The team implemented the plan
team was successful. successfully.
He made a discovery of the photoelectric He discovered the photoelectric effect.
effect.
The agency conducted an investigation. The agency investigated.

d) Avoid Compound Constructions

Compound constructions use three or four words to do the work of one or two
words. They suck the vigor from your writing. Lawyers tend to use compound
constructions rather than plain English. In our attempt to write precisely, we become
verbose.

Compound: Simple:
At the point in time Then
By means of By
By reason of Because of
By virtue of By, under
For the purpose of To
For the reason that Because

3
 Compound: Simple:
In accordance with By, under
Inasmuch as Since
In connection with With, about, concerning
In favor of For
In order to To
In relation to About, concerning
In the event that If
In the nature of Like
Prior to Before
Subsequent to After
With a view to To
With reference to About, concerning

e) Avoid Word-Wasting Idioms

These idioms contain superfluous language. While your audience may

understand their meaning, superfluous language takes up space, adds little value, and
detracts from more important language.

Verbose: Concise:
The fact that she died Her death
He was aware of the fact that He knew
Despite the fact that Although, even though
Because of the fact that Because
In some instances the parties can Sometimes the parties can
In many cases you will find Often you will find
That was a situation in which the court There the court
In the majority of times the grantor will Usually the grantor will
During the time that During, while
For the period of For
Insofar as… is concerned (omit it and start with the subject)
There is no doubt but that Doubtless, no doubt
The question Whether, the question whether
This is a topic that This topic
Until such time as Until

4
f) Avoid Redundant Legalisms

Avoid using coupled synonyms, a pair or string of words with the same or nearly
the same meaning. Not only does the use of a redundant synonym take up additional
space in the sentence, but it also may confuse the reader. How is null and void different
from simply null? As a legal audience we search for meaning in each word and phrase,
but our search may be in vain if the author carelessly uses meaningless redundancy.

While some of these examples come to us as traditional legal phrases, they are
nonetheless redundant. Do not be a slave to turgid and redundant phrases. Distinguish
yourself as a lawyer among the scriveners. Beware, however, that redundancies can
sometimes be terms of art (such as in a statute or contract) and cannot be deleted.
Examples of Common Redundant Synonyms in Legal Writing:
• alter or change
• last will and testament
• confessed and acknowledged
• made and entered into
• convey, transfer, and set over
• order and direct
• for and during the period
• peace and quiet
• force and effect
• rest, residue, and remainder
• free and clear
• save and except
• full and complete
• suffer or permit
• give, devise, and bequeath
• true and correct
• good and sufficient
• undertake and agree

5
g) Catchall - Don’t Pontificate

• Use a simple word when you feel compelled to use a fancy word:
- “behavioral dynamics”  “behavior”
- “predicated and initiated”  “decided”
- “relative to”  “of”

• Avoid excessive case quotations:

- Excessive quotation not only interrupts the flow of discourse, but also adds
extra words. Paraphrasing of case quotations is often a good start to paring
down a wordy document.

• Delete words that mean little or nothing

- as to
- clearly
- in the process of
- it is clear that
- personal opinion
- honest opinion
- actually
- to be sure

• Change negatives to affirmatives

- Do not write in the negativeWrite in the affirmative
- not differentsimilar
- not allowprevent
- not manyfew
- not includeomit

• Use short sentences

- Concise legal writing explains complex ideas simply. Long sentences make
writing hard to understand. We have all read long passages consisting of only
a single sentence. These sentences are no more profound because they mash
many ideas together. No, these long sentences, if anything, are less
meaningful because they make reading a chore.

6
II. Principles in Action

1. Before Brief for Petitioner at 15, Rose v. Lundy, 455 U.S. 509 (1982) (No. 80-846).

Though the wording of the statute requires exhaustion of the "the question
presented" it is clear that Congress was not addressing the issue of exhaustion of claims
as opposed to exhaustion of the entire case. In 1948 neither Congress nor this Court was
likely to have been aware of the unique situation posed when a habeas petitioner
would later combine exhausted and unexhausted claims in a single petition. At that time
very few claims were cognizable on federal habeas review. See Stone v. Powell, 428 U.S.
465, 475-76 (1976). Until the decision in Fay v. Noia, federal courts would refuse to
consider unexhausted claims where a state prisoner deliberately bypassed state
procedures in order to seek federal habeas relief. Brown v. Allen, 344 U.S. 443, 485
(1953). Therefore, the statutory requirement that the "question" be presented to the state
court was not intended to encourage piecemeal federal habeas review of mixed petitions
and thereby relax the exhaustion requirement. To the contrary, Congress envisioned
complete and total exhaustion of each and every claim.

1. After

Though the wording of the statute requires exhaustion of the "the question
presented," Congress was not addressing the issue of exhaustion of claims as opposed
to exhaustion of the entire case. In 1948 neither Congress nor this Court was likely to
anticipate that a habeas petitioner would combine exhausted and unexhausted claims
in a single petition. At that time very few claims were cognizable on federal habeas
review. See Stone v. Powell, 428 U.S. 465, 475-76 (1976). Until Fay v. Noia, federal
courts would refuse to consider unexhausted claims where a state prisoner deliberately
bypassed state procedures to seek federal habeas relief. Brown v. Allen, 344 U.S. 443,
485 (1953). Therefore, the statutory requirement that the "question" be presented to the
state court was not intended to encourage piecemeal federal habeas review of mixed
petitions and thereby relax the exhaustion requirement. To the contrary, Congress
envisioned complete exhaustion of each claim.

7
2. Before

The process of learning to write like a lawyer is sometimes cumbersome.

Basically, the skills required are much different from those most law students in their
first year of law school have. It sometimes seems like the student has to completely
change his way of thinking about writing, and re-train his brain to cut out creativity
for the sake of writing like a lawyer. It seems like grades depend more on factors that
have nothing to do with the way that you write. It basically seems like the absence of
opinion in legal writing, without authority, is difficult to grasp, and creates problems for
the student.

While legal writing seems daunting at first, it becomes easier later. With practice
and acclamation to the type of writing that lawyers do, you will start to understand
more why lawyers write the way they do. Despite the fact that you might feel
confused now, hopefully by next year sometime, you will feel more confident. Just
think, everyone feels the same way you do, at first.

2. After

First year law students often find legal writing cumbersome. The skills required
of a legal writer are much different than those employed by other professionals. Often,
students’ initial impression is that they must forsake creativity for legalese. Similarly,
grades depend more on factors unrelated to prose. Lastly, the absence of opinion in legal
writing is often difficult for the legal writer to grasp.

While legal writing seems daunting at first, it becomes easier. With practice and
experience comes confidence and understanding. Even though confusion dominates the
first-year writing experience, practice leads to clarity. While all first year law students
feel overwhelmed, eventually we all become comfortable with legal writing.