My colleagues and I have developed a set of writing guidelines over the years.  After hearing last night about the “complexification” of transaction documents to the point the clients could not fully understand them, I thought it was a good time to share these.



“Don’t tell me the moon is shining; show me the glint of light on broken glass.” — Anton Chekhov

“Say what you mean. Mean what you say.”  — Jimmy Buffett

  1. Minimize use of adjectives. Things that are clear are not made that way because you use clear to describe them. The facts and description of the thing makes them clear.
  2. Minimize use of adverbs. “Clearly” does not clarify something. “Obviously” often means anything but. Hyperbole does not create support.
  3. Minimize use of pronouns. The reader should never have to figure out to whom or what you are referring. Pronouns create a lack of clarity. Names are useful, clear and definitive.
  4. Minimize the use of superlatives. “Always” and “never” focus the argument on the exception and undermine the principle.
  5. Minimize the use of acronyms. Few acronyms are so universally known that the acronym can be used without risking lack of clarity. Rather than guessing whether an acronym is universally known, avoid them.
  6. Eliminate Latin. It is a dead language. It is not our responsibility to resurrect it.
  7. Avoid Legalese. Judges may have wanted lawyers to “now come” when filing motions in the 1940s, but words and phrases that would never come out of your mouth should never be used because you are using a computer.  If you don’t know how a “true and correct copy” differs from a “copy,” you should never use that phrase.
  8. Short sentences rock. Simplicity is a virtue. The reader should never have to read a sentence more than once to know what you are saying. Think about the discipline imposed by Twitter.
  9. Write like a journalist. Use good headlines and start with something catchy so the judge, clerk or client is interested in your brief or customer communication.
  10. Proof reading is critical. Get a fresh set of eyes if you must, but mistakes, either on the filed copy or the copy shared with the customer, are a setback for the firm.
  11. Minimize attaching exhibits. Exhibits and attachments should be mindfully used. If not essential, think about the waste in compilation and the additional reading it can create for judges, clerks and customers.
  12. Don’t overuse definitions. There is no need to define the obvious. Defined terms may streamline work for the drafter, but often impede understanding for the reader. If the intended meaning is the common understanding of the word, why define it? If different, use the accurate word or phrase instead. If different by design for the creation of ambiguity, that’s just wrong.  A reader will assume ABC means ABC, Inc., the defendant.
  13. When definitions are necessary, use them properly. If it is necessary to define terms, follow your use of the defined term throughout. Do not use the term defined and the definition interchangeably. Follow these rules for definitions in a brief or contract:
    1. State the definition in the context where the term first arises (as opposed to in a separate definition section);
    2. Create a “definitions” section at the end of the document or as an annex, as a cross-reference index and a repetition of the contextualized definition;
    3. Never embed another defined term within a definition; and
    4. Always capitalize it for every use
  14. Eliminate double negatives. Clarity is paramount. If you agree with something, or believe it is appropriate, say so.   “I don’t disagree” and “It would not be inappropriate” imply agreement & permission when often the author intends neither.  Even more irritating is the multiple negative requiring an odd/even counting to determine whether the statement is the converse.
  15. Use bullets and outlines. Embedding a numbered list within a paragraph forces the reader to discern which is subordinate or superior. Organizational structure eliminates ambiguity and enhances comprehension through visualization.
  16. Evaluate your sentence structure. Use the active voice. Use declarative sentences.
  17. Avoid wordiness. Each word must be essential to the sentence. If it isn’t, eliminate it.
  18. Strategically place your strong words. The beginning and, especially, the end of a sentence are the places of prominence and emphasis; therefore put your most important ideas at the beginning and end of your sentences.  A sentence beginning with “it,” “however,” “indeed,” or “there is” is usually stale and often a missed opportunity.  Why say “it is illegal to jaywalk” when you can say “jaywalking is illegal.”
  19. Avoid weasel words. Weasel words do not refer, as is commonly thought, to lawyerly evasions, phrases that seem to say something but allow the speaker to denying having said it.  They refer rather to the habit of weasels to poke a small hole in an egg, suck out the yoke, and leave a hollowed-out egg.  Certain words, like “somewhat,” “quite,” and “very,” likewise hollow out the words they’re attached to.  To say “somewhat improper” blunts and obscure the meaning of improper.  If something is improper, it is enough to say “improper”; if it is something less or more than improper, there is likely a better word.  If something is “somewhat improper,” use irregular, odd, or questionable; or, use illegal, abusive, or flagrant, if it is “very improper.”
  20. Use strong verbs. The verb animates the sentence; it is where the action is.  You can give your writing vigor by using clear, direct, and vivid verbs.  Few things deaden writing more than a succession of sentences using “is” as a verb. “Is” merely equates two ideas and is most useful for summing up or setting forth a proposition to be proved.
  21. Think about the rhythm of your writing. Like good music, good writing holds and, as need be, heightens attention and effect through variations in tone, tempo, and form.  A common example is following a long sentence with a short, pithy one.  Or starting a writing with short, direct, and forceful sentences that state your main points conclusively; and, after that, using longer sentences to explain ideas and illustrate their connection to one another.  Different forms do different things well.  Repetition of the same form or tempo grows tiring and boring.  Variety is the spice of good writing, and it is pungent when it reflects and reinforces your meaning and is not used for its own sake.
  22. Avoid “orphans” that disrupt flow. Quotes or part of a bulleted list that spill over from one page to the next disrupts the flow for the reader.  Conforming to page limits or default Word formatting are the most likely culprits.  Try to plan spacing to allow the entire quote or list to appear together.
  23. Use familiar words. If a familiar word works, use it. The familiar will be better understood.
  24. Use words with a precise meaning. Vague words make your writing unclear.
  25. Avoid long subjects. A sentence with a long or complicated subject, such as one with a subject and verb or subordinate clauses, lacks force and is difficult to digest.  They can be useful or necessary to sum up.  But too many compound subjects can make your writing tedious and annoy your reader.
  26. Avoid invective. Indignation is created by recitation of the facts needed to justify the emotion. Denouncing opposing counsel or use of disparaging language does not create the feeling. If the judge does not agree with you, your position is injured.
  27. Be accurate. Your reputation for honesty and accuracy follows you. The number one way to lose a judge’s, clerk’s or customer’s support or confidence is to misstate or conceal a weakness in your position. Credibility and reputation take a long time to build and a moment to erode.
  28. Use good law. Always check your cited authorities.
  29. Use consistent citation form. Whether you use Bluebook, ALWD, or any other style, be consistent in your citations both to your authorities. Be consistent in your citation to facts.
  30. Maximize the potency of section headings. Weak or confusing language in your headings will undercut your arguments, while powerful language will immediately give you a leg up. And especially if your brief contains a table of contents, your headings, when read alone, should tell your story.
  31. Do not use all caps. All caps are hard to read and carry the connation of yelling. They are not needed.
  32. Avoid conclusory language without supporting reasoning. Conclusions without facts are wasted space.
  33. Avoid beginning sentences with “throat clearing.” An example is “In conclusion, it is thus undeniably apparent that….” The first few words of every sentence are critical.
  34. Don’t pander. Don’t “respectfully” ask or submit. “With all due respect” often means “I think no respect is due, but by saying this, what follows can be disrespectful.” If you are respectful in your writing, the respect of the request or submission will be self-evident.  And if it is not self-evident, how you characterize it will not matter.
  35. Use footnotes sparingly. Footnotes may disrupt the flow of your paragraph, or they may go unread.  If it’s important, put it in the body of your brief.  Thoughtfully use footnotes for points that are significant enough to note, but that do not make or break your argument.
  36. Avoid speculation. Keep to the facts. The reader may not agree with you speculation. This is critically important in the root cause portion of an after action assessment.

I hope you find these useful.