By: Ryan Koopmans on January 17th, 2013
Friend and former colleague Brian Boone has co-written a funny little article about the age-old debate: “pleaded” versus “pled.” I’m a “pled” man myself, but Brian makes a persuasive case for“pleaded.” Read the competing arguments and vote for your favorite word here.
By: Ryan Koopmans on December 19th, 2012
The Green Bag (the “Entertaining Journal of Law”) has released its 2012 Exemplary Legal Writing honorees. The list includes familiar judges, law professors, and practitioners, and covers everything from judicial opinions to commencement addresses. Reading these authors will make you a better writer. So do it, time permitting.
But don’t end there. As legal guru Bryan Garner says, lawyers should also take cues from non-lawyers. Garner recommends reading The Economist and The New Yorker, and I dutifully subscribed to the Economist after attending my first Garner lecture. But a favorite of mine, recommended by friend and former colleague Brian Boone, is Rolling Stone movie critic Peter Travers. His conversational tone speaks volumes in few words. Here’s a snippet from Travers’ review of Lincoln:
It’s a hell of a thing, this Lincoln, a portrait of America as a parade of eloquent, stubborn, patriotic, rebellious, manipulative, passionate talking heads spoiling to be heard. Spielberg and Kushner don’t stop for flashbacks and backstory. Lincoln is all forward thrust and hot-damn urgency. Of course, to audiences who prefer visual stimulation to verbal fireworks, Lincoln may seem like a lot of white dudes in wigs shouting at one another. To each his own.
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Though Day-Lewis plays Lincoln as the calm center in this storm, the actor is expert at letting us see tensions roiling inside him. At home, he soothes his depressive wife – he calls her Molly – who demands that he forbid their eldest son, Robert (a splendid Joseph Gordon- Levitt), from enlisting. Molly spends days brooding in the room of their son Willie, who died of typhoid in 1862, leaving her husband to care for their youngest son, Tad, 12. Field is a live wire as a first lady who won’t bend to convention. She is hard on advisers who criticize her spending on a White House she calls a “pig sty.” She accepts that history will lionize her husband and dismiss her as “a crazy lady.” The role is a tour de force for Field, and she fills it with flame and inner terror.
Most lawyers wouldn’t stand for this conversational tone in legal writing. The mere sight of a contraction irks them—because someone long ago told them that it should irk them. But read an opinion by Chief Judges Easterbrook or Kozinski–both of whom make Green Bag’s exemplary-writing list year after year–and you’ll find something similar. You’ll also understand what they’re saying. And that, of course, is why we speak in a conversational tone: We want those listening to understand.
For legal writing with Travers-like prose, read Judge Gorsuch’s dissent in U.S. v. Rosales-Garcia, which earned him a spot on Green Bag’s list:
Of course, we’re all guilty of venial syntactical sins. And our federal government can claim no exception. Which takes us to USSG § 2L1.2(b)(1) and this jumble of prepositional phrases—
If the defendant previously was deported, or unlawfully remained in the United States, after—(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded thirteen months … [add a sentencing enhancement].
This has to be a sentence only a grammar teacher could love. We have here our old nemesis the passive voice, followed by a scraggly expression of time (“previously … after”), then a train of prepositional phrases linked one after another and themselves rudely interrupted by a pair of parenthetical punctuations.
Happily, our role isn’t to grade the grammar, only discern the meaning. And often a speaker’s meaning can be clear even when his grammar isn’t. We know from context what the child means when talking about the telescope (because background knowledge tells us, say, that the child has a telescope and the man and hill do not). Context likewise explains what the newspaper is getting at (because, for example, the first sentence of the article makes clear the brothers hadn’t seen each other in years). Even when the grammar’s gnarled, meaning often can be straightforward enough.
And that well describes this case. At first blush, one might wonder whether only a conviction for a drug trafficking felony must precede a defendant’s deportation—or whether the conviction and the imposition of a full 13 month sentence must both predate the deportation. The grammar and language of the guideline provision before us supply ample support for each of these competing readings. But, as with much in life, when we bother to consult the directions (the relevant context in this case), what at first appears confusing proves disarmingly simple.
It’s easy to miss the informality there—“scraggly expression of time,” “our role isn’t to grade the grammar,” “explains what the newspaper is getting at”—and that’s because we speak that way. And we’re used to reading authors, like Travers, who seamlessly write that way.
So who’s your style guide? Email me at email@example.com, and I’ll compile a list to share.