68  n  For The Defense  n  April 2011

n  Albert J. D’Aquino is one of the founding partners of Goldberg Segalla LLP, a firm that has grown from seven attorneys in 2001 to well over 100 in 2011. His trial practice focuses on the defense of attorneys and physicians in professional lia-bility actions, trucking companies in catastrophic injury cases, and manufacturers in product liability actions. He has tried cases to verdict throughout the great state of New York for 25 years and writes the appellate briefs in those of his trials that are appealed. Mr. D’Aquino is a member of the DRI Appellate Advocacy Committee. Writers’ Corner, continued on page 72

Many attorneys hope to find some easy, magical way to produce the writing that most impresses us. In 1978, Richard C. Wydick’s unparalleled contribution to the discipline of persuasive legal writing was published: “Plain English for Lawyers,” 66 Cal. L. Rev. 4, 1978. Many law school curricula have included study of this 38-page article, and all should. More than 30 years later the concepts introduced in Wydick’s guide to great legal writing are as relevant as ever. In our firm we have cir-culated copies to our lawyers, and I find it helpful to reread the article each year to perpetually ingrain its effect on my writing. Wydick’s rules are neither mag-ical nor easy, but they do produce the result to which we aspire: writing clearly, effectively and persuasively to communicate a legal argument.

Wydick articulated several important, concrete steps to improve a letter or brief. Summarizing them into one edict, they amount to edit, edit again and, in that pro-cess, strive to eliminate excess verbiage, strive toward economy of language. The reward for those who under-take this effort is elegant, persuasive writing. Achiev-ing the final result definitely takes time, but it is time well spent. After years of adhering to Wydick’s tenets, a writer can produce the desired result—economy of lan-guage rich with meaning—with fewer edits and in less time. In this article, I will acquaint readers with some of Wydick’s central themes and hopefully instigate interest in reading his article for all its lessons.

Abandon “Throat-Clearing” Phrases“Throat-clearing” phrases are those that, when added to or removed from a sentence, do not alter the meaning: they are useless. Lawyers use them thinking that they need them, similar to the way that major league pitch-ers wind up to deliver a strike across the plate. Pitchers’ wind-ups, however, serve a mechanical purpose in deliv-ering a pitch. When your reader is a court, writing, “It is important to note that the defendant did not deny his guilt,” does not have a purpose. Writing, “The defendant

did not deny his guilt,” conveys the same meaning, and a court will know that this is important. Why say in 13 words what we can say in seven?

Once a writer accepts this concept, he or she can eas-ily avoid “throat-clearing,” prefatory, wind-up phrases. Examples abound: “It should be remembered that,” “In this regard it is of significance that,” “Of all of the many rationales offered by the parties,” and the list could con-tinue. For some it seems a nebulous, grandiose right of lawyering to employ such phrases, which may, in fact, have a place in oral arguments when used sparingly for maximum effect. In writing, however, they add nothing. Cumulatively, they make a written product unnecessar-ily long and may fatigue a reader to the detriment of a good argument by burying it in verbosity. Which would you rather have, a two-page letter to a court that leaves you feeling satisfied with your use of prefatory phrases, or a one-page letter whose import you make evident to a court upon its first reading? We know what judges pre-fer. Give it to them.

Reduce Compound PrepositionsThese are the cousins of ‘throat-clearing’ phrases and, as their relatives, add nothing to the meaning of a sentence. Why write and make your reader read “prior to” instead of “before,” “in the event that” instead of “if,” “until such time as” instead of “until,” or “the fact that” instead of, well, nothing else? “The fact that the treasurer removed the clause from the contract may have caused the board to reject it” is better as “The treasurer’s removal of that clause may have caused the board to reject the con-tract.” And it uses fewer words. Compound prepositions abound in some legal writing, and you can easily reduce them by simply considering whether in removing them you lose meaning in a sentence.

Redundancy Is Only That Nothing More (Sorry, That Was Redundant)Unfortunately one generation of lawyers passes down redundant phrases to the next with nary a thought to ending the legacy. Why tell someone that their failure to perform the terms of a contract have rendered the contract “null and void”? If it were only termed null, do you risk that a court may later find that contract valid? Is a copy of a document less “true” or less “correct” if you describe it as one or the other rather than as “true

Writing to Win

‘Plain English for Lawyers’ Redux 2011By Albert J. D’Aquino

W R I T E R S ’ C O R N E R

© 2011 DRI. All rights reserved.

72  n  For The Defense  n  April 2011

Writers’ Corner, from page 68and correct”? Is payment of a fee less than total if it is only “full payment” or only “complete payment” rather than “full and complete payment”? While these exam-ples may seem nitpicky, excellent writ-ing results from nitpicking. Cumulatively, each seemingly small change in style such as this yields a sense in a reader that they understand the message without lingering doubts about the meaning of certain pas-sages, or without having to endure fatigue to make it through a brief laden with point-less redundancies. Eliminate redundancies and synonyms in the same sentence.

Omit Surplus WordsSurplus words are easy to find and destroy through editing. They almost jump out at you when you read keeping their existence in mind. “Despite the fact that she was injured she walked to the station” means the same as the economizing, “Though she was injured she walked to the station.” Omitting surplus words from one sen-tence alone may not seem important, but in an entire brief, the effect is compelling. It is perfectly acceptable to simply use one word—“probably”—instead of more than one word—“in all likelihood”— to convey

the sentiment that an event is, well, proba-ble. This is a major tenet of Wydick’s article.

Use Shorter SentencesThis is where the rubber meets the road in refined persuasive writing. Some resist it in an effort to write sentences that soar with passion and allusions and end up including too many thoughts in one sentence. When writing for an opponent or a court, it is bet-ter to write sentences that hit like punches rather than flurries that don’t quite hit the mark. Wydick’s rule is simple: limit your-self to one main thought or assertion per sentence whenever possible. In editing, divide a sentence with more than one main thought into as many sentences. Wydick’s article includes an appendix of exercises to learn how to do this.

Use Familiar, Concrete WordsDon’t use common “lawyerisms” unless you absolutely must. Typifying superflu-ity, “lawyerisms” also distract from your in-tended point. To this day lawyers will write, “The contract specified said lessee was re-sponsible for removal costs and any related cleaning costs.” Would your brief involve a “phantom” lessee? Not likely. Substituting the word “the” for “said” in the sentence

would suffice. Using “said” only makes a reader pause to consider who, exactly, “said” refers to. If more than one lessee was involved in a transaction, then refer-ence each by name for clarity. Using “said” is one of many examples of poor, outdated word choice. Your goal is clarity, not to ex-emplify the vestigial verbiage of an obso-lete concept of “impressive” legal writing.

ConclusionWydick’s humble yet seminal article is filled with many other lessons for serious legal writers too numerous to address here. He counsels using the active, not passive, voice and shows how to do so. He reviews closely structuring subject-verb-object agreement in a sentence and artfully using “elegant vari-ation” to avoid reusing the same word in a sentence as a finer point of creating an in-teresting written product. The dividends that you can reap from Wydick’s methods include greater persuasiveness and clarity. Fewer words usually suffice; brevity and common-usage words equal clarity; redundancy is pointless; and editing is always needed. The more subtle message to your readers is that an excellent lawyer must have written the compelling letter or brief that they just fin-ished reading. Let that lawyer be you.