|Oregon State Bar Bulletin JUNE 2009|
I love novels that are rich with descriptions. I marvel at writers whose vocabulary is so vast that they can describe three dark and stormy nights with completely different words, and thus create completely different moods.
But in legal writing, clarity is crucial. Sometimes achieving clarity means dully repeating the same word time after time. Of course, with every rule, there’s an opposite rule: Sometimes achieving clarity means using different words to do different things. In other words, variation is sometimes clearer than repetition. Confused? Read on!
Clarifying with Repetition
Repetition is valued in legal writing when it promotes clarity. Once you’ve reviewed your vast vocabulary and selected the best word to name someone or something, sticking with that word will help your reader identify the same person or thing each time the word appears in your document.
For example, once you’ve decided that the getaway vehicle was a car, stick with car. If you switch over to SUV or Ford or minivan, your reader could think a new vehicle has entered the scene. Those terms are more precise, but they aren’t what the reader is expecting. If you want to use a precise term, do it early and be consistent.
Don’t think that you can go willy-nilly in the other direction either. Once you’ve selected the word car, don’t later use the more generic vehicle, which could be a truck or a motorcycle.
This suggestion for repetition applies to adjectives as well as to nouns. Once you decide that the car was black, don’t switch to midnight or dark-colored.
Consider the possibility of encountering these three sentences at various points in a short summary of facts.
The video recording at the scene showed the robbers jumping into a black car.
A few blocks away, they were seen in the midnight SUV counting the money.
The dark-colored vehicle ran out of gas near Paisley.
Did these enterprising robbers have three modes of transportation lined up? Or could the writer just not decide how best to describe the car (or do I mean vehicle)?
Repetition works well in litigation, where parties could be identified by their names, by generic descriptions or by procedural designations. In the following excerpt, Christine Coats is the plaintiff, the appellant and the patient. Grace General Hospital is the defendant and the respondent (or the appellee, depending on the jurisdiction), and could be referred to as Grace, Grace General, GGH or the hospital. If you use a different noun for each party in each sentence, your reader could end up very confused (especially without the little cheat sheet I just provided).
Ms. Coats filed the action below against Grace General seeking $1 million in damages. The trial court dismissed the plaintiff’s the claim, and the patient appealed, arguing that GGH had not met its burden of proof. The respondent now files this brief, urging the appellate court to affirm the trial court’s decision in favor of the hospital.
Clarifying with Variation
Repetition can be confusing, though, when the same word serves two functions in the same sentence. Words like claim and support can be both nouns and verbs, but making them do double duties in one sentence can trip up your reader. Even using slightly different forms of the same word — for example, support and supporting — can give your reader pause.
Confusing: The claim filed by the homeowners claims the city council acted illegally in approving the new zoning plan.
You could use a more specific word for the first claim, such as complaint or petition. Or your could change the second to a synonym like asserts or alleges.
Clearer: The petition filed by the homeowners claims the city council acted illegally in approving the new zoning plan.
Clearer: The claim filed by the
homeowners alleges the city council acted illegally in approving the new zoning plan.
Let’s try the same with variations of support. The sentence below is both confusing and unnecessarily dull.
Confusing: The supporting documents clearly supported the bank’s argument.
Clearer: The supporting documents clearly bolstered the bank’s argument.
The word case presents special challenges. Lawyers know that a case is the dispute or proceeding before a court, but this word also crops up in expressions that have nothing to do with courts. Consider in that case (meaning in that instance) and in case (meaning if).
Confusing: In that case, the judge should overturn the case.
The first use means instance or situation, and one of those words could make the sentence clearer.
Clearer: In that situation, the judge should overturn the case.
Clarifying without Pronouns
A related problem is when to repeat the noun as opposed to using a pronoun. I’ve already waxed eloquently on that topic in “Problems with Pronouns” and “Finessing Gender Pronouns,” but one point deserves repetition: If you risk confusion by using a pronoun, just repeat
The confusion could come because you’re trying to avoid a gender-specific pronoun for a singular noun. If your solution is to use a plural pronoun, curmudgeonly readers may be confused. You see, we don’t expect plural pronouns to
replace singular nouns.
Confusing: Each attorney should devote time to pro bono activities that theyfind rewarding.
The first problem is that the plural pronoun they does not refer to the singular noun attorney. The second problem is that the plural pronoun they does refer — albeit unintentionally — to the plural
pronoun activities, which is the immediately preceding noun that matches the pronoun in number. But that grammatically correct reading doesn’t make sense (i.e., the activities don’t find anything rewarding). If you must use the singular attorney, simply repeat that noun later in the sentence.
Clearer: Each attorney should devote time to pro bono activities that the attorney finds rewarding.
You might be tempted to make the first noun plural, a common fix with noun-pronoun problems. But is the following example really clearer? “Attorneys should all devote time to pro bono activities that they find rewarding.” I still think they refers to activities, so I’m still confused (as well as old-fashioned).
Confusion with pronouns could come because you think that a collective item is plural. Sorry, but we curmudgeons still insist that a court is a single thing (even though comprised of several judges), as is a legislature (although composed of many members).
Confusing: The court should grant certiorari in cases that they believe will impact major public policies.
Technically, the word they refers to cases. But the sentence surely doesn’t mean that the cases believe anything. The point is “that the court believes” something. So why not repeat the noun?
Clearer: The court should grant certiorari in cases that the court believes will impact major public policies.
Confusing variation and confusing repetition slip like ghosts into our writing. Realizing the problems they can cause might increase your vigilance in busting them out.
ABOUT THE AUTHOR
Suzanne E. Rowe is an associate professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. As the Luvaas Faculty Fellow for 2008-2009, she is grateful to the Luvaas Faculty Fellowship Endowment Fund for support of her articles in The Legal Writer.
© 2009 Suzanne E. Rowe