Oregon State Bar Bulletin — FEBRUARY/MARCH 2016
The Legal Writer
Confessions:
The
Mistakes Legal Writing
Professors Make, and
How We Fix Them
By Elizabeth Ruiz Frost, with Megan McAlpin, Joan Rocklin & Suzanne Rowe
A friend recently confessed that she’s nervous to email me because she’s afraid that I, as a legal writing professor, will judge her writing. Well, of course I will judge her writing. But even I, a legal writing professor, send an occasional personal email from my phone that looks like a ransom note written by an illiterate comma-phobe. In truth, I feel the same trepidation my friend feels when I write to my colleagues in the legal writing world.
Buried in our fear is the assumption that writing professors have no bad writing habits. To let you in on a poorly kept secret, we don’t always write well (as some of you have noted in your letters to us over the years), at least not in the first draft. We make mistakes and forget grammar rules, like any mortal writer. But like any good writer, we work to fix them along the way in our writing process. So in this month’s column, some members of the legal writing faculty at the University of Oregon School of Law share some of our writing weaknesses and the strategies we’ve developed to address those weaknesses.
It’s and Its (Megan McAlpin)
I make a lot of mistakes when I write. But the mistake that I make most often is a big one. It is, in fact, so big that writing about it seems a bit like confessing a deep, dark secret. But here it is. I regularly use it’s when I mean to use its. There. I said it.
This mistake has plagued me for most of my life. I once had a professor in college write on a paper, “It’s time to make your peace with its and it’s.” I was mortified. I could barely keep from charging in to her office to defend my grammatical honor and explain that I knew the difference between the two. I wanted to explain that I didn’t need to make my peace.
I still haven’t made peace with its and it’s. But I’ve decided that that’s kind of beside the point. What I really needed to make peace with was the fact that I make mistakes. And while mistakes are inevitable, I am not at their mercy.
Today, its and it’s are on my personal editing checklist. (For a while, I went on a strict, no it’s diet. I now just double-check my writing with an eye for that tricky little apostrophe who — I feel pretty certain — sometimes just shows up on his own.) Do I still write it’s when I mean its? Yes. But now I know that denying that I make this mistake doesn’t do me any good. So I check. And I think that that’s the most peace this very imperfect writer is ever going to get.
Flabby Sentences, Unfocused Ideas (Joan Rocklin)
I didn’t know the weaknesses in my own writing until I had to teach others how to write better. I quickly learned that I need the same advice I give to my students. Now, as I write, I have two mantras that seem to repeat themselves. The first: “Who is doing what? Who is doing what? Who is doing what?” The second: “Do I have a thesis sentence? Where’s my thesis sentence? What am I trying to say here?”
My “who is doing what” mantra allows me to reimagine poorly drafted sentences. Take, for example, this sentence: “Under Title IX, equal athletic opportunities must be provided.” I can find the action in the sentence: “must be provided.” But, who is doing the providing? In the sentence as originally written, no one is providing. By asking “who is doing the providing,” I force myself to identify the subject, and I can rewrite the sentence more clearly: “Under Title IX, schools must provide equal athletic opportunities.” Voila. Passive voice gone.
You can get rid of nominalizations in the same way. Take, for example, this sentence: “The Court’s analysis begins with an examination of the plain meaning of the statutory language.” Here, the “who” is clear: the Court. But what is the court actually doing in this sentence? Examining. That’s my verb. I need to bring it out of the clunky noun, “examination,” and rewrite the sentence this way: “The Court first examines the plain meaning of the statutory language.” Identifying the true subject and verb of the sentence makes for a cleaner, more vigorous sentence.
I repeat “who is doing what” to find the subject and verb in each sentence. Doing so creates clear, active sentences.
My second mantra addresses thesis sentences, my favorite writing device. For every paragraph, I ask myself, “What am I trying to say here?” After I figure it out, I put that idea right where my reader will see it: in the first sentence of the paragraph. Then, I make sure that everything in that paragraph actually relates to that first sentence. If not, I move it out. Finally, I read down my thesis sentences to ensure my overall message is coherent and organized.
It sounds so basic. And it is. When I am confused and muddling around in the muck of my ideas, I ask myself, “What am I trying to say here?” Putting that idea in the first sentence feels like an unbelievable analytical breakthrough — every time.
Procrastination (Liz Frost)
I procrastinate when I write. A lot. I’ve written about procrastination for this column a few times because I’m so keenly aware of my weakness. I focus on it like a vampire spending his days looking up garlic-heavy recipes. And frankly, dwelling on my procrastination has turned out to be a terrific procrastination device. I’ve killed a lot of time looking up methods to kick my time-wasting habit.
Like many others who procrastinate, my procrastination problem is probably rooted in perfectionism. I’m nervous about making mistakes, and I fear criticism, so I delay writing tasks. Of course, delaying only makes me more anxious and more likely to make mistakes when pressed for time.
So first, to overcome my bad habit, I set lots of deadlines for myself. I might lack discipline in some respects, but I have tremendous respect for deadlines — even if they’re totally artificial. If I have a project due at the end of the week, I tell myself that I have to complete it by the end of the day.
Second, I try to divide large projects up into smaller, palatable chunks. Tackling a large writing project is intimidating, but writing an introduction isn’t. Starting with something small, completing it, and feeling successful inspires me to take on a new part of the project, breaking my inertia.
And third, and most crazily, I talk out loud to myself. I have a convincing voice in my head that reassures me when I take a coffee break or surf the web for a while. But my actual voice is even more convincing. Admitting out loud that I’m wasting my time helps me realize it’s true and seems to overrule the lazier voice in my head. It seems I’m the only person more convincing than myself.
Ping Pong Ideas (Suzanne Rowe)
True confession: My early drafts often follow a structure best described as ping pong. “Ping” sentences support my thesis, while “pong” sentences raise opposing arguments. A paragraph can bounce back and forth several times before reaching its conclusion; by then, unlucky readers of these early drafts might feel they’ve experienced a game of beer pong.
I would like to believe that the tendency to write this way comes from one of two sources. The first would be an active intellect that identifies arguments and counterarguments simultaneously and easily embraces the parallels of presenting the two together. Nah.
The second source might be my religious childhood; the Judeo-Christian texts are filled with a structure more academically called A-B-A-B. Here’s an example from Psalms:
Yahweh is my light and my salvation, whom should I fear?
Yahweh is the fortress of my life, whom should I dread?1
In legal writing circles, that ancient poetry sounds like unorganized repetition.
Fortunately, the fix is easy — once I step back from the ideas and think about the structure. Here’s an example, determining whether the client experienced severe shock in a torts action:
Draft: Mr. Bank continues to suffer from an inability to concentrate, although therapy seems to be helping him. Mr. Bank is not able to work effectively with his real estate clients, but medication has made him less anxious.
In revising, I put all of the “ping” together, and then I put the “pong” together. Often the revised structure allows me to delete some repetitive words or ideas.
Revision: Mr. Bank is still unable to concentrate, which affects his work with real estate clients. Therapy seems to be helping him, however, and medication has made him less anxious.
Conclusion
Every writer has her writing blind spots. Even those of us who teach writing have them. One of the keys to becoming a better writer is to know where those blind spots are and to learn how to compensate for them.
Endnote
1. Psalms 27:1, The New Jerusalem Bible (Doubleday 1990).
ABOUT THE AUTHORS
The authors are members of the University of Oregon School of Law Legal Writing Program in Eugene.
An archive of The Legal Writer articles is available here.
© 2016 Elizabeth Ruiz Frost,
with Megan McAlpin, Joan
Rocklin & Suzanne Rowe