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WRITING GUIDELINES: …
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WRITING GUIDELINES:
GENERAL PRINCIPLES & RULES OF THUMB1
Professor David Post2
Beasley School of Law, Temple University
August, 2007
There is nothing more important in the practice of law than your ability to put
together quality written work. I am committed to helping you produce the highest quality
paper you are capable of producing. But be forewarned: Writing is difficult, for everyone at
least, everyone I know of who does it well. If you think you can produce top-quality written
work without pain and hard work you are either (a) incredibly gifted or (b) mistaken.
Please read these guidelines through carefully, and re-read them periodically during the
course of your writing project. I' put most of what I know about writing into them. For those
ve
of you who are in one of my classes, or who are submitting written work for my review, I will
expect that you have actually done not have thought about doing, or have appreciated the value
of doing, or have wondered about what it would be like to be doing, but actually have done the
things I ask you to do in what follows. I have pretty strong views about the process of writing,
and I demand a serious commitment on your part. Please ask yourself, after you have read the
following, whether you are prepared to do what I' asking you to do. If not, please feel free to
m
reconsider working with me; I will not be offended, and we will both will be spared considerable
future unhappiness.
These guidelines are divided into ten " general principles"and nine "rules of thumb." The
general principles are for you to think about; the rules of thumb are for you to obey blindly.
PART ONE: GENERAL PRINCIPLES
1. "Good prose is like a windowpane." [George Orwell, "Why I Write"]
The point of legal writing is not to make the simple complicated for example, by using
lots of impenetrable phrases, long sentences, and big words. The point of legal writing is to make
the complicated simple.
Think about it. Do not be afraid of simplicity. Though we have all been taught that
simplicity is a sign of stupidity, it is not. You want your reader to say, after having read your brief
or your memo or your article, something like: " Well, that was pretty straightforward."
1
This is distributed under a Creative Commons Attribution License (ver 2.5, available at
http://creativecommons.org/licenses/by/2.5/. Please copy, redistribute, and reuse.
2
Comments always welcome: David.Post@temple.edu.
Simple prose does, it is true, reveal weaknesses in our thought; as Orwell put it, " you
if
simplify your English, . . . when you make a stupid remark its stupidity will be obvious, even to
yourself." Turn that to your advantage; learn to recognize when your writing reveals that your
ideas don' work when your argument, for instance, lacks a good transition from one point to
t
the next, or has no logical flow to it. Until you can recognize when your writing is weak you can
never make it strong.
2. "Your language becomes clear and strong not when you can no longer add, but
when you can no longer take away."[Isaac Babel]
Less is more. Say what you need to say. Eliminate unnecessary words. Get to the point.
Here' an excerpt from a student paper:
s
In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), the district court ruled that the
defendant was subject to the personal jurisdiction of the court. In so ruling, the court found that
both prongs of the personal jurisdiction test had been met. First, the court found that the
defendant fell under the District of Columbia's long arm statute, D.C. Code § 13-423, and was
therefore subject to the jurisdiction of the court. Second, the court found that the defendant
possessed the minimum contacts with the District of Columbia necessary for the exercise of
personal jurisdiction to be Constitutional.
Here' my edited version, with the changes marked:
s
In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), the district court ruled that the
defendant was subject to the court' personal jurisdiction. The defendant satisfied both prongs of
s Deleted: of the court. In so ruling, the
the personal jurisdiction test: he fell within the District of Columbia's long arm statute, D.C. court found that
Code § 13-423, and possessed the " minimum contacts"with the District of Columbia required for Deleted: had been met. First, the court
the constitutional exercise of personal jurisdiction. [ADD CITATION] found that the defendant
Deleted: under
Without the redline markings, it reads like this: Deleted: was therefore subject to the
jurisdiction of the court. Second, the court
found that the defendant
In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), the district court ruled that the
Deleted: necessary
defendant was subject to the court' personal jurisdiction. The defendant satisfied both prongs of
s
the personal jurisdiction test: he fell within the District of Columbia's long arm statute, D.C. Deleted: to be Constitutional
Code § 13-423, and possessed the " minimum contacts"with the District of Columbia required for
the constitutional exercise of personal jurisdiction. [ADD CITATION]
The original passage has 99 words; the revised version has 66 exactly 33% fewer. Not
coincidentally, the revised version is also better more direct, clearer, easier to follow.
3. Read the cases. Read more of them, and read the ones you have read over again.
Only occasionally do students do anywhere close to the amount of research in the case law
that is required for a good paper. That, however, is where the law is not in the law review
articles, not in the treatises, not in the trade publication, not in the ALR annotations, but in the
cases and other primary material (statutes, treaties, constitutions). Secondary sources can be
enormously helpful they can point you to the cases that you need to read, and, on rare
occasions, they can help you to understand the cases you have read. They should, however, never
be used as substitutes for the primary material on which they' based.
re
And if that' not enough of a reason to spend the bulk of your time reading judicial
s
opinions, here' another: They are, by far, the best models for the kind of writing that you are
s
learning how to do. Imitation is the sincerest form of flattery. When you read an opinion (or any
piece of persuasive writing, for that matter anything that works through an argument and
reaches some conclusion) that you think is well-written, well-organized, and effective, read it
again. Writing is a craft. Find others who perform it well and try to emulate them.
You should also read judicial opinions as a way to soak up a way of talking and writing
about legal questions customary phrasings, ways of using and talking about precedent, and the
like. If you read lots of opinions you are much less likely to write sentences like the one I'
m
looking at right now, from another student paper:
"Personal jurisdiction can no longer be missing `
because the defendant did not physically
enter the forum state' Burger-King Corp. v. Rudzewicz. . . . "
.
I have never encountered a judicial opinion (or, for that matter, a statute) that referred to
whether or not personal jurisdiction was " missing." This sentence doesn' convey much useful
t
information to the reader, because the notion that personal jurisdiction might be " missing"is
obscure. What it does convey is that the author has either (a) not read very many opinions
dealing with the question of personal jurisdiction, or (b) has not been paying much attention to
those s/he has read.
Third, you need to read lots of opinions because to be a good writer you must learn to be
a good reader. It' quite obvious, if you think about it for a minute. Writing involves reading
s
what you have written, identifying its weaknesses, and revising to eliminate those weaknesses.
Over and over and over again. (See Principles 8 & 9 below) It' not easy. One way to get better
s
at it is to read the cases critically, identifying their weaknesses. As you read, always ask yourself:
What question(s) is the court answering? How does it get to the answer? Are you persuaded that
it got the right answer?
4. Legal documents are persuasive documents; they answer some question(s), and
they persuade the reader that the answer(s) are the correct one. They are not
"book reports."
Your goal, ultimately, is to (a) state a specific question (or set of questions), (b) provide
the reader with an answer to that question(s), accompanied by (c) a logical argument that
persuades the reader that the answer you have come up with is the correct one. You will not write
a paper " about copyright law" you will pose, and then you will answer, a specific question
;
about copyright law.
All legal writing, I believe, is like this: briefs, judicial opinions, memoranda of law, etc. All
are designed to persuade the reader of something by the force of argument(s).
I cannot stress this strongly enough; far and away, the most common reason that student
papers are unsatisfactory is the absence of any sense that they are designed to marshal arguments
in support of the author' answer to a particular question.
s
Much legal writing is straightforward, in the sense that you know precisely where you are
going when you start. When writing a brief, for example, you know where your argument has to
lead: You are arguing on behalf of a client, and you are trying to persuade the reader that " the
defendant [i.e., your client] is not liable for doing X,"or " defendant [the opposing party] is
The
liable for doing Y,"or " Defendant' motion for summary judgment should be granted/denied,"or
s
" court cannot constitutionally exercise subject matter jurisdiction over the claim in this case,"
The
or . . . .
Knowing exactly where you want to go, you can basically work backwards from there to
put together your argument.
With a research paper, on the other hand, you don' really know where you are going
t
when you begin. When you begin, in other words, you don' know the answer to the question
t
you' posing that' why you have to do research. You don' really know (when you begin)
re s t
"whether section 512(c) of the Copyright Act covers the dissemination of decryption software" ;
you don' know (when you begin) "
t whether the purposes underlying the Patent Act are furthered
by Internet business method patents" you don' know (when you begin) "
; t whether courts can
assert personal jurisdiction over foreign website operators" you don' know (when you begin)
; t
"whether clickwrap licenses are enforceable under the Uniform Electronic Transactions Act,". . .
This makes research papers much more difficult to write than briefs; it is hard to construct
an argument when you don' know where the argument is going to go.
t
On the other hand, you can turn this uncertainty about where you' headed to your
re
advantage. You can change your answer indeed, you can even modify the question you' re
asking as you go along. This is a luxury you don' have with work for clients; you can' say to
t t
your client: " Well, I' finished my research and, lo and behold, I have discovered that you are,
ve
after all, liable under section 10(b) of the Securities Act" But with a research paper, you may
!
start out with some thesis e.g., that section 512(c) of the Copyright Act does cover the
dissemination of decryption software but then conclude, after doing research on the question,
that much stronger arguments exist for the opposite proposition (i.e., that section 512(c) of the
Copyright Act does not cover the dissemination of decryption software), and you can then write a
paper taking that latter, stronger, position.
5. Let the process of writing help you think. One of the errors beginning writers make
most frequently is that they begin writing (as opposed to "doing research" much too late in the
)
process. (A related error is that when they do begin writing, they begin with the "Introduction";
see Rule #1 below). It' an easy error to make, which is why you need to guard against it.
s
Here' what I mean. The goal, as I stated above, is to (a) state a specific question (or set
s
of questions), (b) provide the reader with an answer to that question(s), accompanied by (c) a
logical argument that persuades the reader that the answer you have come up with is the correct
one. It might seem logical to assume that you have to first figure out the answer to the
questions(s) you' posed:
ve
Does section 512(c) of the Copyright Act cover dissemination of decryption software?
Are the purposes underlying the Patent Act furthered by Internet business method patents?
Are clickwrap licenses enforceable under the Uniform Electronic Transactions Act? Etc.
and then you can begin the task of communicating your answer to the reader.
It sounds logical enough. It is, however, is a trap. You need to begin writing long before
you have figured out the answer to your question(s) -- long before, in other words, you know
what your argument is going to be and what it is you want to say. If you wait until you' got it
ve
" figured out,"you' never begin, because you' never have it all figured out. That' the nature
all ll ll s
of legal problems. There' an argument that section 512(c) of the Copyright Act covers the
s
dissemination of decryption software, and there' an argument that it does not. Either one will be
s
complicated and many-layered; the only way to evaluate it is to try to write it down to see
whether it makes sense. Unless the question you' posed is a very simple one, you are not going
ve
to be able to figure out the answer without putting your argument down on paper and reading it
through to see if it holds water; it' going to be far too complicated for you to keep the whole
s
thing in your head. Figuring out whether section 512(c) of the Copyright Act covers
dissemination of decryption software is probably going to require you to figure out (a) what do
you mean by " decryption software?,"and (b) " what does 512(c) actually say?,"and (c) "what did
Congress mean by using the word " service provider"in Section 512?,"and (d) " decryption
is
software considered ` speech'so that First Amendment applies to our interpretation of section
512(c)?,"and many other questions like that. You can' possibly keep all of that in your head and
t
figure out where your argument is headed without writing it down and reading it through.
Use your drafts, in other words, to help make your argument better. Don' worry that the
t
argument doesn' " t work"when you' working on your drafts it doesn' have to work, yet.
re t
The point of writing it down is to see where, and how, it doesn' work, so that you can fix the
t
deficiencies in subsequent drafts.
Then, once you have figured out where you are going once you have written something
that enables you to see the answer to the question that you have posed for yourself you need to
figure out how best to walk the reader through your argument as effortlessly and painlessly as
possible. The reader does not necessarily need to see every step that you took to reach your
conclusion; you may have taken some wrong turns, and gone down some dead ends, in trying to
figure out how to answer the question, and the reader does not need to see all of those (and will
be very confused if you show them to him/her).
Another way to say this: When you begin, you are writing for you, to help you understand
what is going on. As you near the end, you write for your reader.
6. You will not learn to write well by talking to me, or to anyone else about
writing; you will learn to write well by writing.
Talking about writing is like talking about carpentry, or about playing the piano, or about
riding a bicycle you can have an interesting conversation, but it will be of little help in learning
how to do any of these things. To learn how to do them, you have to do them, over and over and
over. It' called "
s practicing." It' the same with writing; actually practicing the skill you are
s
trying to master is almost always more useful than talking about it.
I' not suggesting that I' not happy to talk to you about your project. But talking to
m m
me is much less valuable than most students think it is. I' not suggesting you should not talk to
m
me if you have questions; but if you would like to talk to me about something, write down what
you want to talk about. A sentence, or a paragraph, or an outline, describing your thoughts, or
the question(s) you have, will do. That will not only give you valuable practice in the art of
writing, but I guarantee you that it will make our subsequent conversation much more productive.
7. Give yourself
time. When asked whether she enjoyed writing, Dorothy Parker replied "
No
I enjoy having written."
Writing well is often When asked whether he found writing difficult, Red Smith replied:
painful; it is always difficult " at all you just sit down at the typewriter and open a vein."
Not
and time-consuming. It will
always take longer -- usually
a lot longer -- than you think (or than you' like) to get an outline or a decent draft together, let
d
alone your final product. You must commit to spend however much time it takes to produce a
quality product.
8. Your job is to learn how to read your own work from your reader' perspective.
s
This is, perhaps, the most important principle of all. It sounds easy enough; in fact, it is
very difficult, and takes years, and practice, to master. The process of writing well consists of
writing, reading what you have written from your reader' perspective, and revising what you
s
have written so that it is clear to your reader.
You must, first of all, know (or decide) who your reader is, because you must always be
asking " what I have written clear?,"and you can' answer that question unless you can answer
Is t
the question: " Clear to whom?" Your explanation of why section 512(c) of the Copyright Act
does cover dissemination of decryption software, or why business method patents do not serve
the purposes underlying the Patent Act, will be very different, depending upon whether you are
explaining that to (a) a judge on the Federal Circuit, (b) the Chief Systems Engineer at Comcast,
(c) a reader of the Philadelphia Inquirer, (d) a high school student, (e) a partner at your law firm
specializing in international tax law, etc.
Here' a sentence that might appear in your paper.
s
"Like much of the DMCA, sec. 512(c) provides ISPs with a safe harbor against copyright
infringement claims for monetary damages."
It is either perfectly clear, or complete gibberish. I can' tell unless I know who the reader
t
is, because whether or not it is clear depends on what the reader has in his or her head at the
moment he/she encounters the sentence. What' the DMCA? Who are ISPs? What' a "
s s safe
harbor" What' copyright infringement? What are "
? s claims for monetary damages" Either (a)
?
the reader had some idea what these things meant before starting your paper, or (b) you have
explained earlier what they mean, or (c) the sentence is a failure and needs to be revised because
the reader does not know what it means. Writing well means satisfying yourself that either (a) or
(b) is true, for every sentence in your paper.
Reading your own work from your reader' perspective also means learning how to clear
s
your head of everything you have learned about the subject matter from having worked on the
paper. This is difficult, but indispensable. Your reader does not know what you know, has not
read what you have read, has not been surrounded by articles about this subject matter for weeks
or months, etc. If you keep all of that stuff in your head as you read over what you have written,
even if you conclude that it makes sense and is reasonably clear, your conclusion is worth very
little, because the test is not whether it is clear to you but whether it is clear to your reader, and
your reader doesn' have that stuff in his or her head.
t
One trick I have found useful: reminding yourself that the one thing your reader does not
know, no matter who he or she may be, is what' coming later in your paper. It may well be that
s
you explain, later, what the DMCA is, or what " harbors"are; that doesn' help the reader
safe t
who doesn' know what they mean upon encountering this sentence.
t
Before you submit anything to me an outline, a draft, whatever read it over, from start
to finish, in one sitting, as if you were the person for whom it is being written. Satisfy yourself
that your reader will not be confused by what you have written (or revise as necessary).
Developing this ability to edit your own work in this way is the most important
thing you will get out of your writing project. You are the one editor who will always be at
your disposal during your career, the one person who will always be available to read your work
over and to comment upon it, to help you see which arguments are strong and which are weak,
which sections make sense and which do not.
9. Revise, then revise, then revise again. Repeat.
You need to revise your work as necessary so that it makes sense to that reader. You
don' get to stop when you have completed one, or two, or four, or any fixed number of revisions
t
of your paper; you get to stop when what you have written is clear to your reader (see #8, above).
If that takes five, or fifteen, revisions, that' what it takes. There is, unfortunately, no such thing
s
as an " for Effort"when it comes to written work; you don' get any prizes for the number of
A t
revisions you' done, you get prizes for expressing yourself clearly. The reader doesn' know,
ve t
and the reader doesn' care, how much time you spent producing whatever it is you have
t
produced how much sweat poured off your brow during long nights in the library, how you
neglected your familial responsibilities in order to devote unconscionable amounts of time to the
project, etc. All she has, and all she cares about, is what you put before her in the form of the
written document.
10. Everything you put on the page matters.
Everything every word, every bit of punctuation, every decision to begin a paragraph
with one sentence rather than another, every decision whether to use " shall"or " should"or " may"
or "might,"or whether to use " since"or " because"or " thus"or " moreover"matters. That may
or not be true in other fields, but it is true in ours. This is less an objective fact than an attitude,
an attitude that may or may not come naturally to you but which I urge you to start cultivating.
Care about the words you put down on the page. Give a damn about them. They reflect who you
are as a lawyer, and they are often the only reflection of who you are as a lawyer that your
professional colleagues will get to see.
When Robert Frost' Collected Poems was originally published, it contained these familiar
s
lines (in "Stopping by the Woods on a Snowy Evening"):
" woods are lovely, dark, and deep
The
But I have promises to keep
And miles to go before I sleep
And miles to go before I sleep."
In fact, what Frost had written was:
" woods are lovely, dark and deep
The
But I have promises to keep
And miles to go before I sleep
And miles to go before I sleep."
We are not poets, and the texts we read and write as lawyers are, heaven knows, not
poetry. But consider the following. The Copyright Act of 1874 granted copyright protection to
" engraving, cut, [or] print,"and it provided that
any
" . . in the construction of [this] Act, the words `
. engraving,' cut,'and `
` print'shall be
applied only to pictorial illustrations or works connected to the fine arts."
Question: Were " pictorial illustrations"that were not " connected to the fine arts"covered
by copyright? That depends on whether " connected to the fine arts"modifies both " pictorial
illustrations"and " works,"or just " works." See Bleistein v. Donaldson Lithographic Co., 188
U.S. 239 (1903) (Holmes, J.). Note how the meaning of this phrase would change if there were a
comma after " pictorial illustrations,"so that it read:
" . . in the construction of [this] Act, the words `
. engraving,' cut,'and `
` print'shall be
applied only to pictorial illustrations, or works connected to the fine arts."
Or how it would change if there were commas after both the words "pictorial illustrations"
and "works":
" . . in the construction of [this] Act, the words `
. engraving,' cut,'and `
` print'shall be
applied only to pictorial illustrations, or works, connected to the fine arts.".
The 1874 Copyright Act is much less beautiful than " Stopping by the Woods on a Snowy
Evening." (And section 512(e) of the 1976 Copyright Act is even less beautiful than that see
the Appendix). The moral of the story, however, is that in legal prose, as in poetry, everything
you put on the page matters. If you don' start cultivating that attitude towards your own
t
writing, you will never learn to write well.
Needless to say, this means that if you are not a good proofreader, find someone who is.
The details matter not only because they can affect the meaning of what you written, but also
because your attitude towards the details gets communicated to your reader. Typographical
errors matter. Not because they affect the meaning of what you have written, because generally
speaking they do not; it is easy enough for the reader to realize you meant "ideas"when you
wrote " ideax,"or " Copyright Act"when you wrote " Copyrihgt Act,"or that you meant to
the the
write " employer' liability for monitoring employee emails depends upon its status under
an s
section so-and-so . . . "when you wrote " employer' liability for monitoring employee emails
an s
depends upon their status under section so-and-so. . . " etc. They matter because they
communicate your own lack of attention to your own writing; if you had seen the word " ideax,"
surely you would have corrected it, so the fact that it remained in your document suggests that
you didn' read it yourself. And if you didn' even read it, why should I?
t t
" man may take to drink because he feels himself to be a
A
failure, and then fail all the more completely because he
drinks. It is rather the same thing that is happening to the
English language. It becomes ugly and inaccurate because
our thoughts are foolish, but the slovenliness of our
language makes it easier for us to have foolish thoughts.
The point is that the process is reversible."
George Orwell, "Politics and the English Language"
PART TWO: CRITICAL RULES OF THUMB FOLLOW THESE OR DIE!!
1. Write your Introduction LAST. Orwell' Six Rules (from "
s Politics and the English
Your paper will, usually, consist of three basic Language" :
parts: an Introduction, an Argument, and a
1. Never use a metaphor, simile or other figure of speech
Conclusion in that order. It would, obviously, which you are used to seeing in print.
be silly to begin writing your Conclusion first, 2. Never use a long word where a short one will do.
before you know exactly what you are going to 3. It if is possible to cut a word out, always cut it out.
say. It is equally silly to write your Introduction 4. Never use the passive where you can use the active.
first. You must know where your argument is 5. Never use a foreign phrase, a scientific word, or a
going in order to write a decent Introduction, jargon word if you can think of an everyday English
equivalent.
because the function of the Introduction is to tell 6. Break any of these rules sooner than say anything
the reader what' coming. Once you know what
s outright barbarous.
your argument is going to be, it is very easy to
write an Introduction; before you know what
your argument is going to be, it is very difficult almost impossible to do so.
2. Use topic sentences. Each paragraph in your paper should make one point, and each
paragraph should begin with a declarative sentence stating that point. These " topic sentences"are
enormously important. Read your paper over, frequently, reading only the first sentences in
each paragraph. Ask yourself: If you knew nothing else about this subject matter, would this
reading of the paper, topic sentence by topic sentence with nothing else, have made sense to you?
If the answer is "no,"you' not finished revising.
re
3. Eliminate the passive voice from your papers.
Do not say " the Internet grew, new uses for domain names were found . . . " indicate
As ;
who found them (e.g., " the Internet grew, users found new uses for domain names . . . "
As ).
Do not say " 5-step test for determining likelihood of confusion under the Lanham Act
The
was crafted . . ." indicate who crafted it ( " Eighth Circuit crafted the 5-step test for
; The
determining likelihood of confusion under the Lanham Act . . . " ).
Do not say " Where there is no general jurisdiction, the possibility of specific jurisdiction
must be examined" indicate who must examine it ( "
; Where there is no general jurisdiction, the
court must examine the possibility of specific jurisdiction" ).
Do not say " arbitrators'
The decisions are enforced by the imposition of monetary
penalties on wrongdoers" indicate who enforces them (" CFTC enforces the arbitrators'
; The
decisions by the imposition of monetary penalties on wrongdoers" )
Do not say " modern framework for analyzing a question of personal jurisdiction was
The
developed in International Shoe Co. v. Washington, 326 U.S. 310 (1945); indicate who
developed it ( " Supreme Court developed the modern framework for analyzing questions of
The
personal jurisdiction in International Shoe Co. v. Washington, 326 U.S. 310 (1945)" ).
Do not say " Despite the radio broadcasters' argument that they made little profit on
broadcasts, ASCAP was authorized to demand payment for the broadcast of copyrighted works" ;
indicate who authorized it ( " Despite the radio broadcasters' argument that they made little profit
on broadcasts, Congress [or " FCC,"or " Communications Act,"or whomever it was]
the the
authorized ASCAP to demand payment for the broadcast of copyrighted works." ).
Do not say " this paper, theories of intellectual property protection are discussed"
In ;
indicate who discusses them ( " this paper, I discuss theories of intellectual property
In
protection.").
Write so that the reader can tell who the actor is who is performing the action described in
your sentences.
4. Quote first; explain later. The actual words used in the statutes or the opinions
under discussion always matter. Do not tell me what you think a statutory section means until
you have given me the actual language in the statute; do not tell me what you think a court meant
until you first tell me what it said. If the statutory language (or court' opinion) is clear, then it'
s s
clear and nothing more need be said. If it needs explanation and interpretation (as it almost
always does), explain and interpret after you tell me what the words are that you are explaining
and interpreting. I don' want to know your opinion about the statute or the case I want to
t
know (a) what it says, and (b) what it means.
5. Do not thump on the table. Do not ever say " is clear that . . . .,"or " is obvious
It it
that." Do not use the words " clearly,"or "obviously,"or " undoubtedly,"as in " statute clearly
the
authorizes law enforcement officers . . .,"or " Feist opinion obviously changes copyright law
the
in important ways." If it is clear, or obvious, then there if no need to say so the reader will
already see it, because you have made it so clear and obvious. Ninety-nine times out of 100, you
use these words or phrases as crutches, to obscure the fact that you have not made something
clear, or obvious, when you should have. Saying that something is clear does not make it any
clearer than it was the moment before you said so.
6. Use parallel structure. If you are talking about general and specific jurisdiction and
one paragraph begins, " order for there to be general jurisdiction, the defendant must have . . .
In
.," then begin the next paragraph about the parallel topic (specific jurisdiction) the same way: " In
order for there to be specific jurisdiction, the defendant must have . . ." Make it simple for your
reader.
7. Avoid unnecessary introductory and transition words. Words or phrases like
"Moreover,"" addition,""
In Furthermore,"" such,""
As Notwithstanding,"are sometimes useful,
but rarely; most of the time they get people into trouble. They tend to be inserted when the
logical transition between your sentences or paragraphs makes no sense, in the hopes that saying
"moreover"or " furthermore"will cover up that unfortunate fact. If you have two sentences that
do not belong together, throwing in an " addition"at the beginning of the second sentence will
In
not help. Use these devices very sparingly.
8. Watch out for " explained below"and " explained above." These are signals
as as
that your work is not yet properly organized. What is a reader supposed to do when he/she
encounters " explained below"in a paper? Stop reading and go "
as below"to wherever you
explain what needs to be explained? If something needs to be explained now, explain it now.
Always remember: readers read from front to back, and from left to right; do not make the
reader' understanding of something depend on something that you say later.
s
9. Read your work aloud. Writing, Lawrence Sterne wrote (in Tristram Shandy), is
conversation. He was correct. If your paper, or outline, or memo, or letter, or brief, or . . . does
not make sense to a listener, chances are very good that it won' make any sense to a reader, and
t
vice versa. Read your work aloud to yourself if need be, or to someone else (preferably
someone who knows little or nothing about your topic) if possible.
Appendix
Here' another, much more complicated, statutory illustration of the significance of a
s
single comma. Section 512(e) of the Copyright Act provides:
" When a public or other nonprofit institution of higher education is a
(e)
service provider, and when a faculty member or graduate student who is an
employee of such institution is performing a teaching or research function, for
the purposes of subsections (a) and (b) of this section such faculty member or
graduate student shall be considered to be a person other than the institution,
and for the purposes of subsections (c) and (d) such faculty member's or
graduate student's knowledge or awareness of his or her infringing activities
shall not be attributed to the institution, if--
(A) such faculty member's or graduate student's infringing activities do
not involve the provision of online access to instructional materials that are or
were required or recommended, within the preceding 3-year period, for a
course taught at the institution by such faculty member or graduate student;
(B) the institution has not, within the preceding 3-year period,
received more than two notifications described in subsection (c)(3) of claimed
infringement by such faculty member or graduate student, and such
notifications of claimed infringement were not actionable under subsection (f);
and
(C) the institution provides to all users of its system or network
informational materials that accurately describe, and promote compliance with,
the laws of the United States relating to copyright."
Read it again, carefully. Here' a little problem of statutory interpretation. Assume that:
s
(a) Temple University is a "nonprofit institution of higher education"that is a "service
provider"within the meaning of subsection (e);
(b) A faculty member call him " Professor Post" is an employee of Temple University
and is "performing a teaching or research function"within the meaning of subsection
(e);
(c) Temple University does not provide " informational materials that accurately describe,
and promote compliance with, the laws of the United States relating to copyright"to
all users of its system, i.e., it does not meet the condition laid down in subparagraph
(C) of the above provision.
The question: Is Professor Post " person other than the institution"for " purposes of
a the
subsections (a) and (b) of this section"(whatever subsections (a) and (b) might be)?
The answer is "No." Why? Because " the purposes of subsections (a) and (b) of this
for
section"Prof. Post "shall be considered to be a person other than the institution"only if the
conditions in sub-paragraphs (A), (B), and (C) are satisfied. Because the condition in sub-
paragraph (C) is not satisfied, Prof. Post shall not be considered to be a person other than the
institution. [If you don' see that, re-read the section over until you do].
t
Note what happens if we omit the comma before the word " at the end of the first
if"
paragraph. The section now reads as follows:
" When a public or other nonprofit institution of higher education is a
(e)
service provider, and when a faculty member or graduate student who is an
employee of such institution is performing a teaching or research function, for
the purposes of subsections (a) and (b) of this section such faculty member or
graduate student shall be considered to be a person other than the institution,
and for the purposes of subsections (c) and (d) such faculty member's or
graduate student's knowledge or awareness of his or her infringing activities
shall not be attributed to the institution if --
(A) such faculty member's or graduate student's infringing activities do
not involve the provision of online access to instructional materials that are or
were required or recommended, within the preceding 3-year period, for a
course taught at the institution by such faculty member or graduate student;
(B) the institution has not, within the preceding 3-year period,
received more than two notifications described in subsection (c)(3) of claimed
infringement by such faculty member or graduate student, and such
notifications of claimed infringement were not actionable under subsection (f);
and
(C) the institution provides to all users of its system or network
informational materials that accurately describe, and promote compliance with,
the laws of the United States relating to copyright."
The answer to the question presented is now " Yes." Removing the comma has completely
changed the meaning of the subsection. Now, for " purposes of subsections (a) and (b) of this
the
section"Prof. Post " shall be considered a person other than the institution"full stop. The
conditions in sub-paragraphs (A), (B), and (C) apply only to determining whether the faculty
member will be considered to be a person other than the institution for purposes of subparagraphs
(c) and (d). (If you don' see that, read the section over again possibly aloud until you do).
t