Oregon State Bar Bulletin — OCTOBER 2008
The Legal Writer
Silencing the Novelist Within:
Squelching Creative Writing
By Megan McAlpin

Lawyers write. A lot. But no matter how much we write, most of us (we’ll leave John Grisham out of this for the moment) will never really be authors. No matter how hard we try to make it so, legal writing just isn’t creative writing.

Of course, that’s not to say that lawyers aren’t creative. We are creative, and we should be creative. But our creativity should express itself analytically as we solve problems, not as we write about them. Let me suggest a few kinds of creativity that you should avoid like the plague. (Forgive the simile. I aspire to creative writing just as much as the next legal writer.)

Long Paragraphs
I was recently reading a novel by an author who would go on for pages without starting a new paragraph. In a single paragraph, he went from writing about chickens in a courtyard to writing about true love. Unraveling the author’s thought process (what do chickens have to do with true love anyway?) can be the most enjoyable part of reading a novel; it will never be the most enjoyable part of reading a memo or a brief or a contract. Don’t force your reader to unravel your thought process; make it perfectly clear by writing short, cohesive paragraphs that start with topic sentences.

Long paragraphs — paragraphs longer than half a page — are overwhelming. The brave reader who decides to (or has to) tackle that overwhelming paragraph will probably get lost or, worse, stop paying attention.

The most fundamental problem with too-long paragraphs is that they simply contain too much information on too many different topics. Really, a paragraph is a mini-composition. It should cover a single topic; that topic should be expressed in your topic sentence. So, decide what your paragraph is about and then begin your paragraph by telling your reader what the paragraph is about. (Oh, and then make sure that’s actually what your paragraph is about.)

Long Sentences
Long sentences work in creative writing. I can remember long nights in college attempting to read one William Faulkner novel or another. But surely Faulkner intended at least some of his long sentences to be obscure. After all, isn’t the fun of reading Faulkner pondering over what he meant? Even his short sentences are packed with so much meaning they can be difficult to decipher. So, unless your point is to be obscure or to force your reader to spend long hours pondering the nuances of your writing, don’t write long sentences.

Like too-long paragraphs, sentences longer than 25 words usually contain too much information. Separating that information into two or more sentences gives your reader the chance to digest what she’s reading. Consider the following 80-word sentence:

This sentence is way too long to comprehend easily. Not only does it contain too much information, it suffers from one of the other maladies that plague long sentences: the subject and the verb are too far apart. The subject of the sentence — the calendar — is separated from the verb — was turning — by 71 words. So the reader has to wade through 71 words before she can even begin to understand what the sentence is about. That’s just too much work.

Perhaps you take pride in your ability to write very long sentences that are perfectly clear. And maybe all the information in that sentence is necessary. Even so, consider whether anything will be lost if you put that information into several sentences. Just try it.

Elegant Variation
Whenever I imagine a creative writer at work, I always think of a person sitting at a small wooden desk with a typewriter, a dictionary and a thesaurus. I have no idea where this (probably wholly inaccurate) picture comes from, but I do know that it always includes that thesaurus.

The creative writer, I imagine, works hard at describing the reasonable person as equitable, fair, feasible, just, levelheaded, logical, moderate, rational or sane. But legal writers don’t have this luxury. While it might be nice, as a writer, to find a way to avoid repeating reasonable person over and over, it would be disastrous for the reader. Imagine your poor reader trying to decide how a rational person is different from a reasonable person and why that difference matters.

And while almost no law school graduate would dare to describe a reasonable person as a logical person, plenty of lawyers do make the mistake of using elegant variation. For instance, a lawyer may introduce factors that a court uses in making a decision and then describe the first principle and the second element. Even if factor, principle and element didn’t have different legal meanings, you would still lose your reader. Legal readers are careful readers. The slightest change in language signals a change in meaning. So, if you describe something first as a factor and then as a principle, a legal reader is going to assume that you mean different things. And then pull her hair out trying to figure out what that difference is.

Random Punctuation
While random punctuation can be very creative, it’s rarely very clear. You are not ee cummings.

Punctuation was created for a reason. And punctuation is standard for a reason. If you don’t consistently follow the rules of punctuation, you risk angering the office curmudgeon or losing your client lots of money. An exaggeration? Nope. The parties to a lease (the actual agreement was a little more complicated than a lease, but I’ll call it a lease for ease of discussion) agreed on the following language:

Well, they agreed on the language until the landlord tried to terminate the agreement within the initial five-year period. The tenant relied on the “you know what we meant” defense while the landlord relied on the rules of grammar. The rules of grammar won. As written, the agreement allows for termination by one-year notice during the initial five-year term. What the parties probably meant was:

The addition of that one little comma cost the tenant over two million dollars. Oops.

Maybe you have an alter ego who writes as creatively as William Faulkner, ee cummings, or even John Grisham. But be careful letting him loose when your client’s interests are at stake.

Anne Enquist and Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style
for the Legal Writer
(2d ed. Aspen Law & Business 2005).

Megan McAlpin teaches Legal Research and Writing at the University of Oregon School of Law. You may contact her at mmcalpin@uoregon.edu.

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