Skip to Content
  • Home
  • About the Bar
  • Mission
  • Forms
  • Sitemap
    • Member Directory
      Last Name:
      First Name:
      Bar Number:
      City:


    • Login
OSB Logo

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:

    The calendar, which was hanging on the wall of the office beside several old newspaper clippings featuring one of the corporation’s president’s granddaughters, who had graduated first in her class and gone on to become a doctor, and had been there for years because the president refused to rely on a calendar and instead was constantly asking his secretary, who was easily frustrated and considering quitting for this very reason, for the date, was turning an unattractive shade of yellow.

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:

    Subject to the termination provisions of [this Agreement], [this Agreement] shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.

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:

    Subject to the termination provisions of [this Agreement], [this Agreement] shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms unless and until terminated by one year prior notice in writing by either party.

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

Conclusion
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.

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

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


— return to top
— return to Table of Contents

  • For The Public

      Public Legal Information

    • Public Information Home
    • Legal Information Topics
    • Oregon Juror Guide
    • Submit Ethics Complaint

    • Getting Legal Help

    • Finding The Right Lawyer
    • Hiring A Lawyer
    • Lawyers Fees

    • Client Services

    • Client Assistance Office
    • Client Security Fund
    • Fee Dispute Resolution
    • Public Records Request
    • Locating Attorney Files

    • Unlawful Practice of Law

    • UPL Information
    • UPL FAQ

    • Volunteer Opportunities

    • Public Member Application
  • For Members

    OSB Login

    • Log In To OSB Site
    • Member Account Setup
    • Non-Member Account Setup
    • Reset Password

    OSB Resources

    • Attorney's Marketplace
    • Career Center
    • Events
    • Forms Library
    • Online Resources
    • OSB Group Listings
    • Performance Standards
    • Rules Regulations and Policies
    • Surveys and Research Reports
    • Unclaimed Client Funds
    • Voting Regions and By-City
      County Information

    Benefits for
    Oregon Lawyers

    • Log in to Fastcase™
    • – Overview
    • – Scheduled Webinars
    • – Inactive Member Subscriptions
    • No Cost Trust & Billing Software

    Legal Ethics

    • Legal Ethics Home
    • Find an Ethics Opinion
    • Bulletin Bar Counsel Archive

    Company Administrator

    • Company Administrator Home
    • Company Administrator FAQ
    • Authorization Form

    State Lawyers
    Assistance Committee

    • SLAC Info

    Volunteering

    • Volunteer Opportunities

    Court Information

    • Judicial Vacancies
    • Court Info | Calendars | Jury Info
    • Oregon Attorneys
      in Federal Court
    • Tribal Courts of Oregon

    OSB Publications

    • Bar Bulletin Magazine
    • – Bulletin Archive
    • – Legal Writer Archive
    • Capitol Insider
    • Disciplinary Board Reporter

    PLF Programs

    • (OAAP) Oregon Attorney
      Assistance Program
    • Practice Management Attorneys
    • Malpractice Coverage
  • CLE/Legal Publications

    CLE Seminars

    • CLE Seminars Home
    • Online Seminar Registration
    • General Info/FAQ

    My Account

    • My Content
    • My Events
    • Order History

    Legal Publications

    • Legal Publications Home
    • Log in to BarBooks®
    • BarBooks® FAQ
    • Online Bookstore
    • Legal Pubs Blog
  • Bar Programs

    Diversity & Inclusion

    • Diversity & Inclusion Home
    • Diversity Story Wall
    • D&I Programs
    • ACDI Roster
    • D&I Staff Contacts
    • D&I Links

    Legislative/Public Affairs

    • Legislative Home
    • Committee Contacts
    • Legislative Sessions
    • Staff Contacts
    • Useful Links

    Legal Services Program

    • LSP Home

    Oregon Law Foundation

    • OLF Home
    • Partners in Justice

    Fee Dispute Resolution

    • Fee Dispute Resolution Home

    Pro Bono

    • Pro Bono Home
    • Pro Bono Reporting
    • Volunteer Opportunities

    Lawyer Referral and Information Services

    • RIS Login
    • Summary of Referral and Information Services Programs
    • Lawyer Referral Service Info and Registration Forms
    • Modest Means Program Registration Forms
    • Military Assistance Panel Training Info and Registration Form
    • Problem Solvers Registration Form
    • Lawyer To Lawyer Registration Form

    (LRAP) Loan Repayment Assistance Program

    • LRAP Home
    • LRAP FAQ
    • LRAP Policies
  • Member Groups

    Sections

    • Section Info/Websites
    • Joining Sections
    • CLE Registration Services
    • Standard Section Bylaws (PDF)
    • Leadership Resources
    • Treasurers Tools

    Committees

    • Home
    • Leadership Resources
    • Professionalism Commission
    • Volunteer Opportunities

    House of Delegates

    • HOD Home
    • HOD Resources
    • Meetings
    • Rules (PDF)
    • Roster (PDF)
    • Staff Contacts

    Board of Governors

    • BOG Home
    • Meetings & Agendas
    • Members
    • Liaisons
    • Committees
    • Resources
    • Task Forces

    Oregon New Lawyers Division

    • ONLD Home
    • Law Students
    • Student Loan Repayment
    • Committees
    • Upcoming Events

    Task Forces and Special Committees

    • Task Forces Home

    Volunteer Bars

    • List/Contacts
    • Leadership Resources

    Volunteering

    • Volunteer Opportunities
  • Licensing/Compliance

    Admissions

    • Admissions Home
    • Alternative Admittance
    • Applicants for Admission
    • Admissions Forms
    • Past Bar Exam Results

    Supervised Practice Portfolio Examination

    • SPPE Home

    Licensed Paralegal Program

    • LP Home

    Lawyer Discipline

    • Discipline Home
    • Disciplinary Board Reporter
    • Disciplinary Boards
    • Client Assistance Office
    • (SPRB) State Professional Responsibility Board

    Membership Records

    • Address Changes
    • Good Standing Certificate
    • Request Discipline File Review

    MCLE

    • MCLE Home
    • Program Database
    • Forms
    • Rules (PDF)

    IOLTA Reporting

    • IOLTA Home
    • IOLTA FAQ

    Licensing Fees

    • Licensing Fee FAQ
    • Licensing Fee Payment

    Status Changes

    • Status Changes FAQ
    • Inactive Status Form
    • Retired Status Form
    • Active Pro Bono Status Form
    • Reinstatement Forms
    • Resignation Form A
    • Pending Reinstatements

    Unlawful Practice of Law

    • UPL Information
    • UPL FAQ

    Pro Hac Vice/Arbitration

    • Pro Hac Vice
    • Arbitration

    New Lawyer Mentoring Program

    • New Lawyer Mentoring Program Home

    Professional Liability Fund

    • Professional Liability
      Fund Website
For The Public

Public Information Home
Legal Information Topics
Oregon Juror Guide
Finding The Right Lawyer
Hiring A Lawyer
Lawyers Fees
Client Assistance Office
Public Records Request
Unlawful Practice of Law
Fee Dispute Resolution
Client Security Fund
Volunteer Opportunities
for the Public

For Members

BarBooks®
Bulletin Archive
Career Center
Fastcase™
Judicial Vacancies
Legal Ethics Opinions
OSB Group Listings
OSB Login
OSB Rules & Regs
SLAC Info
Surveys and Reports
Volunteer Opportunities

CLE/Legal Pubs

CLE Seminars Home
Legal Publications Home

Bar Programs

Diversity & Inclusion
Fee Arbitration/Mediation
Legal Services Program
Legislative/Public Affairs
Loan Repayment
Assistance Program

Oregon Law Foundation
Pro Bono

Member Groups

Board of Governors
Committees
House of Delegates
Volunteer Bars
Oregon New
Lawyers Division

OSB Sections
Professionalism
Commission

Volunteer Opportunities

About The Bar

About the Bar
ADA Notice
Contact Info
Copyright Notice
Directions to the Bar
Meeting Room Rentals
Mission Statement
OSB Job Opportunities
Privacy Policy
Staff Directory
Terms of Use

Licensing/Compliance

Admissions
Client Assistance Office
Client Security Fund
IOLTA Reporting
Lawyer Discipline
MCLE
Member Fee FAQ
New Lawyer
Mentoring Program

Professional Liability Fund
Status Changes

Oregon State Bar Center

Phone: (503) 620-0222
Toll-free in Oregon: (800) 452-8260
Facsimile: (503) 684-1366

Building Location:
16037 SW Upper Boones Ferry Road
Tigard, OR 97224

Mailing Address:
PO Box 231935
Tigard, OR 97281

Oregon State Bar location Map

Copyright ©1997 Oregon State Bar  ®All rights reserved | ADA Notice | Mission Statement | Privacy Policy | Terms of Use