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For The Defense
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April 2011
n Albert J. DAquino 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. DAquino is a member of the DRI Appellate Advocacy Committee. Writers Corner, continued on page 72
Many attorneys hope to fnd some easy, magical way
to produce the writing that most impresses us. In 1978,
Richard C. Wydicks 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 Wydicks guide to great legal
writing are as relevant as ever. In our frm we have cir-
culated copies to our lawyers, and I fnd it helpful to
reread the article each year to perpetually ingrain its
efect on my writing. Wydicks rules are neither mag-
ical nor easy, but they do produce the result to which
we aspire: writing clearly, efectively 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. Te reward for those who under-
take this efort is elegant, persuasive writing. Achiev-
ing the fnal result defnitely takes time, but it is time
well spent. Afer years of adhering to Wydicks tenets, a
writer can produce the desired resulteconomy of lan-
guage rich with meaningwith fewer edits and in less
time. In this article, I will acquaint readers with some of
Wydicks central themes and hopefully instigate interest
in reading his article for all its lessons.
Abandon Throat-Clearing Phrases
Troat-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, Te 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 signifcance that, Of all of the many
rationales ofered 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 efect. 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 satisfed with your use of prefatory phrases,
or a one-page letter whose import you make evident to a
court upon its frst reading? We know what judges pre-
fer. Give it to them.
Reduce Compound Prepositions
Tese 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? Te fact that the treasurer removed
the clause from the contract may have caused the board
to reject it is better as Te treasurers 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 fnd 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 2011
By Albert J. DAquino
WRI T ERS CORNER
2011 DRI. All rights reserved.
72
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For The Defense
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April 2011
Writers Corner, from page 68
and 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 Words
Surplus words are easy to fnd and destroy
through editing. Tey 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, Tough
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 efect is compelling.
It is perfectly acceptable to simply use one
wordprobablyinstead of more than
one wordin all likelihood to convey
the sentiment that an event is, well, proba-
ble. Tis is a major tenet of Wydicks article.
Use Shorter Sentences
Tis is where the rubber meets the road in
refned persuasive writing. Some resist it in
an efort 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 furries that dont quite hit the
mark. Wydicks 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. Wydicks
article includes an appendix of exercises to
learn how to do this.
Use Familiar, Concrete Words
Dont use common lawyerisms unless
you absolutely must. Typifying superfu-
ity, lawyerisms also distract from your in-
tended point. To this day lawyers will write,
Te contract specifed 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 sufce. 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.
Conclusion
Wydicks humble yet seminal article is flled
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 fner point of creating an in-
teresting written product. Te dividends that
you can reap from Wydicks methods include
greater persuasiveness and clarity. Fewer
words usually sufce; brevity and common-
usage words equal clarity; redundancy is
pointless; and editing is always needed. Te
more subtle message to your readers is that
an excellent lawyer must have written the
compelling letter or brief that they just fn-
ished reading. Let that lawyer be you.