BE KIND TO YOUR READER

When you write a brief—to a trial judge or an appellate Justice—you are trying to persuade your target to rule in your favor.  So you’d like that person to like you.  How?

When the judge gets home from work, he or she might well enjoy reading a good book.  Maybe a novel, or poetry—something that makes the best use of some ambiguity and vagueness. 

But during the work day, the judge is reading not for fun, but to get a job done as easily and quickly as possible.  Vagueness and ambiguity just make that job harder.  If you help make the judge’s job easy and fast, the judge is more likely to like you. 

The key to your task is clarity.  Writing clearly requires getting out of your shell as a writer, and thinking about your reader. 

Here are three examples of where I constantly see lawyers screw this up: their use and placement of “only,” “not,” and “its.” 

“Only”

The problem with “only” is where writers place it in a sentence. 

Like this: “John only bought catsup on Tuesdays.”  What is a judge supposed to make of this?  “Only” catsup?  Or “only” on Tuesdays?  

It can get worse.  “John only bought catsup on sale at XYZ market on Tuesdays.”  Possible meanings abound.  “Only” catsup?  Or “Only at XYZ?  Or “Only on sale”?  Or “only” on Tuesdays?  You can guess, but you can’t be sure. 

If the author of these miserable sentences were speaking them out loud, he could resolve these uncertainties by raising his tone slightly before the word he means to modify.  So he might announce, “John only bought catsup at XYZ market on sale on Tuesdays.”  When writing the sentence in a brief, I suppose he might do the same by italicizing the right words, as I just did.

But isn’t it much easier to put the “only” in the right place—which is immediately before the word it is meant to modify?  As in, “John bought catsup at XYZ market only when it was on sale on Tuesdays.”  Simple and clear.  And, incidentally, grammatically correct.

Here’s a rule of thumb you might find helpful.  If you use “only” and “if” in the same sentence, do not put any words between them.  So do not write, “John only buys catsup at XYZ market on sale if it’s on Tuesday.”  The “only” probably modifies “on Tuesday” because of where the “if” is placed––though you need to wait till the end of the sentence to figure this out.  The easy fix: “John buys catsup on sale at XYZ market only if it’s on Tuesday.”  See?  “Only if. . . .”.  Not “Only [then a bunch of words] if. . . .”

“Grammatically correct” is not that important to me.  I’m no grammar maven, and I have no desire to become one.  When my high school English teacher intoned these rules, I sank deeply into a subjunctive mood, and I now barely remember them.  I do, however, recall her warning against misplaced modifiers.  Why?  Because clarity is crucial.  When I read, I want to wend my way through the writing smoothly, without wondering even for a moment about the writer’s intended meaning.  It saves me time, and it makes the reading more pleasurable.

In this, I suspect that I’m like most appellate judges.  They have a lot of work to do, much of it on the tedious side.  As an appellate advocate, I want to make their jobs easier.  If I can accomplish that, they might like my brief, my arguments, my client, and me. 

So when I write, I’m always careful to place my modifiers in the right place, so the judge can breeze through my brief without pausing to wonder, “What does that mean?”

But, you respond, “Get a life, Moskovitz.  Why are you so persnickety?  Can’t the reader tell from the context what word the ‘only’ modifies?”  Yes, often she can.  But that might require her to think about the context––and sometimes require her to go back and read what came before to get the context.  Takes only a few seconds, right?  But recall the last time you had to wait at a red light.  Only a few seconds, but when you’re busy and need to get somewhere, it bugs you.  Same with the appellate judge.  If I can spare Her Honor a handful of precious seconds, my chance of winning the appeal goes up a tiny bit.  I’ll take every bit I can get. 

And there’s another reason to do it right.  When I read a book (or newspaper or magazine) that puts “only” in the wrong place, I feel disrespected.  The writer did not care enough about my time and pleasure to make things easy for me.  He wasn’t thinking about me in particular when he wrote the sloppy sentence, but it feels that way.  I know, I know, I’m too sensitive.  But maybe the judge is too. 

“Not”

Here’s a similar problem.  I’m currently reading a terrific book: The Arc of a Covenant, by Walter Russell Mead.  It’s about the relationship between the U.S. and Israel, back from before the Jewish state was even founded.  Because that relationship can’t be understood without knowing the context—America’s domestic concerns and how they affect our country’s entire foreign policy—Mead takes us through that history, too. 

But Professor Mead’s editors failed him.  They allowed sentences like these two to get into the book:

Egyptian security forces did not refrain from crushing the democracy demonstrations because they thought an irresistible tide of democracy was sweeping the county.  The military let the protests continue as a way of forcing Mubarak to abandon his dynastic ambitions.

On reading the first sentence, I thought Mead meant this: “Egyptian security forces crushed the demonstrations, because they thought democracy was sweeping Egypt.” A quite plausible meaning, I submit.  Then the second sentence jarred me.  The security forces either did not crush the demonstrations, or they initially did crush them but then decided to let them continue (to force President Mubarak to call it quits).

All this confusion was caused by the misplacement of the modifier “not” in the first sentence.  The cure for the conundrum is very simple.  Just put the “not” in the right place—as close as possible to the words to be modified.  Thus:

Egyptian security forces refrained from crushing the democracy demonstrations, not because they thought an irresistible tide of democracy was sweeping the county, but as a way of forcing Mubarak to abandon his dynastic ambitions.

Once again, I could have figured this out by considering Mead’s sentences in context.  His second sentence seemed to change the meaning of the first sentence.  But why make the reader work at it?  Especially when the cure––moving the “not” to the right place—is so easy.  (Plus, I made it shorter––by one sentence.)

“Its”

A related problem arises with pronouns, nasty little devils that are particularly prone to ambiguity. 

Take this one.  While recently reviewing a draft petition for writ to an appellate court, I came across this sentence: “The trial court granted X’s motion for leave to intervene, rejecting Petitioner’s argument that its lien was invalid.”  What???  Because the last party mentioned before “its lien” was the Petitioner, this sentence appeared to say that Petitioner had argued that its own lien was invalid?  

Recovering from my shock, I took a moment to go back and review the “context” and realized that “its” referred to X’s lien, not Petitioner’s.  I was annoyed, but the effect on an appellate judge might be more devastating.  She might simply stop reading, pull out her “Petition Denied” stamp, and whomp the guy’s effort. 

“He,” “him,” “his,” “she,” “her”––all fodder for the same troubles. 

“After Bob’s car ran into Steve’s bike, he collided with a tree.”  Which “he”?  Bob or Steve?  The solution is so simple.  Just substitute the correct guy’s name in place of “he”!  I concede that putting a person’s name in a sentence twice can sound clumsy.  But the goal here is clarity, not beauty.  You are not writing the Great American Novel, but trying to help a busy judge get through her day. 

Be kind to your reader—especially when your reader wears a black robe.  You are a professional, so write like one: very clearly and very carefully. 

And who knows?  It might even help you win a case.