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VOL 26 | NR 4 | SUMMER 2011 21

,.# ##&.-%.) #&&(/',) '*.3


*!-2&/-#0&3 ),."*/,*)-) #(!
evaluated on how well they can do that.
On the Papers 0#(!,.."#-2&/-#0&3'#

A NEW A PPROACH TO
.-%."3."("0.)"&*."-./(.-
accomplish it. They teach outlining and

LEGA L W R ITING
thought generation; they demand stu-
dents follow rigid formats not encoun-
tered in the adult, professional world, such
GEORGE D. GOPEN
as the five-sentence paragraph and the
#0*,!,*" ."' ( -)'.#'-
The author is a professor of the practice of rhetoric at Duke University.
most arduously of all, they concentrate on
teaching students how to avoid grammati-
cal error. Students come to believeaccu-
,.&3.".# ."31),%",( #&&."
right number of pages with energy, they
cannot fail. If they improve since last time,
they will do well.
&&) ."#- #&-.)-/#..",&#.#-)
any profession, but especially that of the
trial lawyer. Can you imagine a judge, af-
.,-./3#(!(..),(3-,# 2&#'-
#(!"#-#-.,,#&,# /.3)/"0
1),%",(#.#--)'/"..,."(
Our school systems have taught )'%#...,'%#.-"),., the one you turned in last month, you win
writing inefficiently and ineffec- ,)(! ."- (.",&1),&())(,-
0,&&)1-(.(.)2 how hard the writer tried nor what prog-
tively throughout our history. 1),-,)(! ,--"-('",1,#.#(!#(."
Educators have not understood ,#.."133)/-*%,)(! real world is concerned, the important
well how the communication pro- )-# 3)/,1,#.#(!#-!)),#. person is not the writer; it is the reader.
)/.&)/,)(! The bottom-line question about writ-
cess takes place. As a result, they 0)#."/-) ."0,.) ing quality is simply this: Did the reader
have resigned themselves to treat- ,)(! get delivery of what the writer was intend-
ing the symptoms of bad writing 0,3*,!,*"-")/&-.,.1#." #(! .) -( ." (-1, #- 3- ."
.)*#-(.(,)(! 1,#.#(!1-!))()/!"# #.#-()."
as if those manifestations were 1,#.#(!1-().!))()/!"(#.'.-
instead the causes. In this series of articles, I will try not ters little how impressive or dazzling the
)(&3.)2*&#(1"3."#-)&**,)")- writing seemed to be along the way.
They have labored mightily to eradicate ().1),%/.&-).)')(-.,.'), To get control of writing, litigators
those symptoms in their studentsbeliev- effective way to perceive and control how must understand as much as they can
ing, as it were, that if one never again 1,#..((!&#-" /(.#)(-#(13-*- about how the reader goes about the act of
coughed or sneezed, one would never have cially relevant to litigators. reading. It is insufficient to compose a
a cold. They have bought into a litany of Our school systems traditional ap- sentence that is capable of being interpret-
advice about good writing, so long and *,)".)."#(!1,#.#(!1"#""-#.- ed in the way that best serves your case.
widely accepted as to be considered un- ,)).-#(."#!".(."(./,3"-!)( Instead you must compose it so the odds
questionable. Here are some of the major awry for many reasons, most of which are are as high as possible that an intelligent
pieces of that advice, each followed by my connected to a single underlying problem: reader will be led to interpret it in the way
opinion of its accuracy and helpfulness: They have been concentrating on the 3)/ #(.(  "0 && ( ./!".
wrong personthe writer. They have writing according to what the writer
0)#."*--#0,)(! given all those students a continually should and should not do. The perspective
22 L I T I G AT I O N

should be shifted to consider what readers location of the sentences information. to be. Sometimes this concern for gram-
./&&3)".1#&&.".-%) ."#--- ),-#'*&3-..-,,-1%()1 matical construction will coalesce with the
ries of articles. where.)&))% ),what#(,,-2- concerns for structural location mentioned
The interpretive process any reader pect these answers to appear in specific )0-)'.#'-#.1#&&)( &#.,#.#(!
uses is controlled by three main factors: *&-#(."(!&#-"-(.( &&."#- cannot be made an easy thing; but we can
structural location, grammatical con- 13) &))%#(!.."&(!/!.", get better at it. Thought is hard.
-.,/.#)(()(.2. 2*..#)( **,)" /./, ,.#&- Context. )(.2. )(.,)&- '(#(!
Structural location. The importance 1#&& &))% . " ) ."- +/-.#)(- ( )-#(!&-(.('(-3#.-& /.
of a writer controlling the structural loca- their answers individually. only in combination with the other sen-
.#)() #( ),'.#)(#(-(.(#-."2- Grammatical construction. Readers tences that surround it. That may sound
.,),#(,3(1(1-",,-.% pay different amounts of attention to in- obvious; or it may sound profound. It is
the majority of their clues for the interpre- ),'.#)(*(#(!)(#(1".%#() both. It causes problems when we try to
tive process not from word choice nor from /(#.) #-)/,-#.**,-/(#.) .&%)/.#'*,)0#(!.")(-.,/.#)() 
word meaning, but rather from structural discourse is any group of words that has a given sentencewhich these articles will
location. Where a word appears in a sen- beginning and an endphrase, clause, spend a good deal of time doing. Two dif-
tence will control much of what a reader is sentence, paragraph, section . . . all the fering versions of the same sentence may
&#%&3 .) ) 1#." #.  && %()1 ."- way up to the complete document or )."2&&(. ),.1)# ,(.*/,*)--
things intuitively as readers. I will try to ))%-1&))%.-(.(- '!)#(! -/.#(!#0()(.2.)(1#&&-,0
'%."')(-#)/- ),3)/-1,#.,- to consider only three grammatical units, ..,."(.").", 1#&&.,3.)%*/-
discarding all those complicated terms aware of this as we go.
Trial lawyers, it can you may or may not have had to memorize
#("#!"-"))&)'*)/(&/-)'- Trial lawyers, it can be argued, have the
be argued, have the *&2&/-)'*)/()'*&2&/-
."-.",,.")(-.".')-.
",-.1,#.#(!.-%.",#-'/"",,
than that of doctors or scientists or philos-
hardest writing task influence readers regarding the relative
importance of their contents:
ophers. Legal writing is more difficult not
because the subject matter is more com-
there is. "'#(&/-"#-!,)/*)
*&2."('##(),-#(),-.,.
philosophical thought, but rather because
words has a subject and verb and ) ."(./,) #.-/#("(.")-
(.,3#(!.)'%-(-) ((!&#-" could stand by itself as a complete other professionals write something, their
sentence, the reader needs to perceive the sentence. /#(-()0,%1,-.) #!/,
correct answers to all five of the following "+/&# 3#(!&/-"#-!,)/* out what the writer was trying to say.
essential questions if the reader is to un- of words has a subject and verb but ( -.,% )(.,-. ")10, ." /#-
derstand correctly what the writer was cannot stand by itself as a complete ence for a legal brief is often openly and en-
intending to say: -(.("#(%) &/-.". ergetically hostile. It may be a senior part-
!#(-1#."."1),&.")/!" ner who will try to find every possible
".#-!)#(!)(", have created this term. You will not 1%(--/-)."#(!!.-)/.) ."#-
")--.),3#-."#- #(#.#(."!,'',))%- ) # /(.#& #. #- *, . , #. '3  
)1)-."#--(.()((. "*",-"#-!,)/*) 1),-#- judge, who, while holding in one hand your
%1,.)."*,0#)/--(.( )'*&./(#./.&%-#.",), well-argued brief, in the other hand is hold-
)1)-."#--(.(&( ),1, both a subject and a verb. ing an equally energetically argued brief
to where we might go from here? proffered by the opposition. Or it may be an
".#-."')-.#'*),.(.*#) Quite simply, readers tend to give more adversary who, though completely aware
information in this sentence, which weight to information if it appears in a ) 1".3)/1,.,3#(!.)-31#&&2*(
-")/&,#(!1#."2., main clause than if it appears in a qualify- great energy to show that it doesnt say that
emphasis? ing clauseand even less weight than that or says something else or is essentially non-
if it appears in a mere phrase. This is of far -(-"2#-.() ."")-.#&/#(
',%&3."#(.,*,.#0&/-.) greater importance than has been gener- '%-&!&1,#.#(!."",-..",#-
the answers to all five questions are con- ally understood in any writing of #."."-,.#&-#(Litigation, I hope to
veyed to the reader mainly by structural )'*&2#.3( ),-&!&1,#.#(!.(- be of help to you in fighting that fight. q
Now you could hardly mistake what
was most important to me. If I were to
speak the sentence to you, I could empha-
On the Papers size lazy with my voice; but on the page,

THE IMPORTA NCE OF


that emphasis cannot be heard. It must
somehow be made apparent to the eye.

STR ESS: INDICATING


What if I were to rewrite the sentence
like this: The quick brown fox can jump

THE MOST IMPORTA NT


over the dog because the dog is lazy.
Now more than 90 percent of readers

WOR DS IN A SENTENCE
might guess that laziness is foremost in
my mind. This is a phenomenon peculiar
to the English language.
We value any moment in a sentence
when the grammatical structure comes
GEORGE D. GOPEN
to a full halt. I call such a location the
The author is professor of the practice of rhetoric at Duke University. stress position.
A period always accomplishes this
closure; but the same effect is realized by
any properly used colon or semicolon. It
can never be created by a comma, be-
cause there are too many different sig-
Have you heard the advice, Write nals a comma can send. We always have
actually interpret them correctly. We all to go beyond a comma to find out what
the way you speak? It is bad understand the importance of making kind of pause it is asking us to make.
advice. the best possible decisions concerning Commas never signal full syntactic
word choice; but, surprising though it closure.
When you speakand especially may seem, word location is a far more im- Here is an example I have used with
when you speak in courtyou have a portant tool to master. How can you ma- thousands of students and clients to
number of ways you can demonstrate to nipulate the placement of words to signal teach the efficacy of the stress position:
your listeners which of your words you to your readers when they should be
would like them to emphasize the most. reading a particular term with special As used in the foundry industry,
You can wave your hands or use body lan- emphasis? turnkey means responsibility for the
guage. You can pronounce a word at a It would be nice, would it not, if we satisfactory performance of a piece of
higher decibel level than its neighbors. were allowed to print all such to-be- equipment in addition to the design,
You can vary your soundhigher or low- emphasized words in red? Take, for ex- manufacture, and installation of that
er, softer or louder, faster or slower. But ample, the sentence used in teaching typ- equipment. P et al. agree that this def-
on paper, all these indications of empha- ing: The quick brown fox jumps over the inition of turnkey is commonly under-
sis disappear. You are left only with word lazy dog. If I told you there was only one stood in the foundry industry.
choice and word placement. word in that sentence uppermost in my
You, being the author, know what you mind at the moment, what would be your Take a moment to underline any words
wanted to say. You look at your sentence: chances of guessing that word correctly? in these two sentences that you think the
It seems obvious to you how it should be Given that there are seven important- writer might be wanting you to stress.
performed by any reader. But an author looking words, your chances would be When I ask as few as a dozen students
is often the worst person in the world to close to one out of seven, or 15 percent. or clients to do this, all of the following
estimate how others will read a sentence. How would your chances improve if I terms get underlined by someone: found-
It is insufficient for you to construct sen- were to print that word in red? Or even ry industry; turnkey; responsibility; sat-
tences that can be interpreted the way just in all caps? isfactory performance; design, manufac-
you want. You must construct them so a The quick brown fox jumps over the ture, and installation; P et al.
huge percentage of your readers will LAZY dog. Note that a piece of equipment fails
Published in Litigation, Volume 38, Number 1, Fall 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 1
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
You are your clients
to make this list; and yet, that is the term design, manufacture, and installa-
that occupies the first sentences sole tion; but the industry also uses the

advocate. Your prose


stress position. The author had only one term to indicate responsibility for its
opportunity to indicate his most signifi- satisfactory performance.

must act as your


cant words, and he blew it. As a result, he
left all of us guessing; and in a group of a Important news: Locating the stress-

advocate.
dozen people, almost everyone will worthy information of a sentence else-
choose a different assortment. Everyone where than in a stress position is the sin-
thinks he or she has successfully made gle most widespread and crippling
sense of the sentence; but often not a sin- information you wish the reader to stress problem in professional English writing
gle person has correctly guessed what always appears in a stress positionnext today. Of the 245 MDs and PhDs I have
was in the authors mind. Here is the ex- to a period, colon, or semicolon. (I will re- worked with at a prominent federal agen-
ample again, with his sole intended em- turn to the use of the colon and semicolon cy, only one did not suffer from this epi-
phasis printed in all caps: in a future article.) demic problem.
Am I suggesting that if our author had Most judges will read your brief only
As used in the foundry industry, only transported satisfactory perfor- once. Are you really content to have them
turnkey means responsibility for the mance to the end of a single sentence, guessingsentence after sentencewhat
SATISFACTORY PERFORMANCE of most readers would have understood his word or words they should be emphasiz-
a piece of equipment in addition to the intentions? Yes. Here is one possibility: ing? You are your clients advocate. Your
design, manufacture, and installation prose must act as your advocate.
of that equipment. P et al. agree that As P et al. agree, the foundry industry This is neither a mechanical nor a cos-
this definition of turnkey is commonly uses the term turnkey to signify re- metic concern. Because it involves the
understood in the foundry industry. sponsibility not only for the design, core of your thinking in any sentence,
manufacture, and installation of a you can repair the damage only by re-
In my experience, in a lecture hall piece of equipment but also for its sat- entering your thought process and in-
filled with 200 people, no more than four isfactory performance. quiring, What is the most important
will have underlined satisfactory per- thing I want to say here? It is not an easy
formance and only satisfactory perfor- Now more than 90 percent of readers fix. If you habitually put the important
mance. The failure of communication is will get his message. thing some place other than the stress
that severe. What if P et al.s agreement had also position, your habit will persist unless
Note that no term in the second sen- been something worthy of stress? Then you fight against it, consciously and with
tence of the example is in caps. Any such we might create a second stress position, substantial mental energy.
sentence should not be a sentence. Its in- just for that: Begin by using this new advice as a re-
formation should be tucked into some vision tactic. Write your sentence as you
other sentenceand not in a stress P et al. agree: The foundry industry normally would. Then go back and ask
position. uses the term turnkey to signify re- yourself which word or words you would
When is a sentence too short? When it sponsibility not only for the design, print in red or in caps if allowed to do so.
has no viable candidate for the stress posi- manufacture, and installation of a Get those words right next to a period,
tion. When is a sentence too long? When it piece of equipment but also for its sat- colon, or semicolon. Try it. Youll like it.
has more viable candidates for stress posi- isfactory performance. So will your readers.
tions than there are stress positions. It One last concern: When should you
matters not how many words a sentence What if the other three functions use artificial emphasisitalics, under-
contains. It matters a great deal that the (design, manufacture, and installation) lining, caps, bold, etc.? Use it whenever
number of stress-worthy terms is the were also worthy of stress? Then we the nature of our grammar makes it
same as the number of stress positions. might create an additional stress position impossible or awkward to get the em-
You have probably heard the advice, for them: phatic word next to a colon, semicolon, or
To make a sentence better, make it short- period. For examples, see all the itali-
er. Forget it. It is wrong. Here is a good P et al. agree: The foundry industry cized words in this article. q
replacement for it: To make a sentence as uses the term turnkey to signify re-
good as it can be, make sure that the sponsibility for a piece of equipments
Published in Litigation, Volume 38, Number 1, Fall 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 2
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
How would the employees receive such a
proposal? When the verb seems to tell
us what action is happening, we generally
On the Papers accept that as the truth and proceed from

ENSUR ING R EA DERS


there. If the verb fails to settle that issue,
then we have to seek out alternative can-

K NOW W H AT ACTIONS
didates. But readers tend to hurtle for-
ward toward the end of this sentence

A R E H A PPENING IN
even as they try to locate the missing
action. That attemptto have the mind

A N Y SENTENCE
travel in two directions simultaneously
produces the fuzzy-headed feeling of
non-comprehension that we all experi-
ence when reading is not easy.
What words do people tend to under-
GEORGE D. GOPEN
line in sentence (1a)? Many underline
The author is professor of the practice of rhetoric at Duke University. would be. Is that an action? I asked the
only person who could know for surethe
writer. I had a long conversation with her
about this, many years ago. She said she
had not intended those words to be an ac-
tion. Why then do so many people under-
line them? Because those two words are
A reader will fail to understand what a usually get anywhere from 14 to 20 dif- part of the verbwould be . . . accorded.
writer meant by a sentence if the reader ferent answers. What a phenomenon: No We can feel that we are approaching the
cannot perceive what actions are sup- group of 20 people can come close to action, because we know we are engaging
posed to be taking place therein. But ex- agreeing on what is happening in this with the sentences verb. We therefore
actly how does a reader go about discern- sentence. read would be with a type of reading en-
ing which words in a sentence are Now do the same task for this revision ergy usually reserved for processing a sen-
intended to convey those actions? Ill give of that sentence: tences action. But if you underlined
the relatively simple answer to that ques- would be, you are already out of the ball
tionan answer taught almost nowhere 1b. How would the employees game: You have failed to perceive the
in our educational systemsafter giving receive such a proposal? writers intention. It is not your fault; it is
you a chance to experience it in the fol- her fault. She signaled to you that would
lowing example, which I have explored In a group of 20 people, usually be- be was the action by making it part of the
with thousands of students and clients. tween 15 and 18 will underline only one verb. No wonder you stumbled.
Take a moment to underline the word wordreceive. The others will usually Between 60 percent and 70 percent
or words in the following sentence that underline two words, one of which is usually underline accorded. She told
you think the writer intended you to per- receive. me that was wrong: I could dispense with
ceive as actions: Why is there such agreement in this the concept of accorded and not dis-
case? It is not because (1b) is shorter than turb her meaning. Why do so many read-
1a. What would be the employee re- (1a). It is not because (1a) uses a passive ers lose this interpretive game at this
ception accorded the introduction of verb and (1b) an active. The discussion of point? Because accorded is the previ-
such a proposal? these two vexed issues will have to await ously missing part of the verb. We have
future articles in this series. been waiting for some time for this sec-
In my experience, in a group of 20 The answer is quite simple: Readers of ond shoe to drop. When it finally drops,
people, some will underline no words, modern English expect that the action of most of us are convinced accorded
while some will underline one word, a sentence will be articulated by its verb. must be the action. After all, not only is it
some two, some three, some four, and We lean forward to the verb, expecting the most important part of the verb, but it
some five. From those 20 people, I will that it will announce what is going on: is the most multi-syllabic and impressive

Published in Litigation, Volume 38, Number 2, Winter 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may 1
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
word in the sentence. Of course it is the which clearly articulates what she was in context. Every verb has meaning. If
action, we think. We are wrong. trying to say: the meaning of that verb is the action of
Some people underline proposal, the sentence in which it exists, I call that
which is a noun made out of a verb. This is 1c. How would the employees a strong verb. The verb to be, for exam-
called a nominalization. The writer told receive such a proposal if the ple, has a number of meaningsit de-
me proposal is not an intended action. executive board introduced it at this notes existence, equality, or character-
About 50 percent underline recep- time? ization. If that is what it does in your
tionanother nominalization. The writ- sentence, it is strong.
er told me that was correct. She had tried Two clauses, two verbs, two actions.
to convey the action of receiving; but You can feel the lean forward clearly: The plaintiffs argument is fatally
since she used a noun and not a verb to do How . . . receive, . . . if . . . introduced? I flawed because . . .
the job, no more than half of her readers had figured out the first clause: It is my
get that message. sentence (1b). But I missed the second In that clause, the only act is the label-
So, with great confidence, I revised clause entirely. The crux of the matter is ing of the argument as fatally flawed.
her sentence and produced sentence (1b). the information now located in the sen- The verb is does an excellent job of
It is shorter than (1a) because I left out yet tences stress position, its important mo- labeling.
another nominalizationintroduction. ment of syntactic closure: at this time. If the meaning or meanings of a verb
It was logically unnecessary: How could It was the timing of the introduction, not have little or nothing to do with the ac-
the employees receive the proposal if it its mere existence, that was the key point. tion of the sentence in which it appears,
had not already been introduced? She (For an explanation of the stress position, then the verb, I suggest, is weak. A fine
looked at my sentence (1b) and replied see my earlier article in this seriesThe example of that is the would be accord-
Importance of Stress: the Most Important ed of sentence (1a) above.

Locate the action you


Words in a Sentence, 38 Litigation 22 If you want your readers to be keenly
(Fall 2011)). aware of what is going on at all times,

want your reader to


make sure the actions you intend them to
My advice to you is conceptually sim- perceive are articulated by your verbs. If

perceive in the
ple, even though it is sometimes difficult you have a legitimate need to undercut
to put into practice: Locate the action you the force of an action because, forcefully

sentences verb.
want your reader to perceive in the sen- stated, it would be impolitic or impolite
tences verb. Most people will find it or downright cruel, then use some other
there. Not only will they read your sen- part of speech to water the action down.
that, elegant and concise though it may tence correctly, but they will use far less Not Dear Madam, we fire you, but rath-
be, it failed to translate adequately her energy in accomplishing that task. er the softer Dear Madam, discontinua-
original (1a). Introduction, she told me, You may recall your high school teacher tion of our employment agreement with
was one of her two actions. In any group admonishing you to use strong verbs and you has become necessary because of . . . .
of 20 people, no more than between zero avoid weak verbs. That was bad advice Nominalizations are neither good nor
and two are likely to have underlined because of what she meant by strong bad in themselves but only in context.
those two and only those two words. In and weak. She had a short list of short When is one of these abstract nouns re-
other words, almost no one ever per- verbs that she labeled weak. That list ally destructive of prose? When it usurps
ceives what she was trying to say. was headed by the verbs to be, to have, and the action from the verb. Reception;
At this point in our discussion, I real- to occur. She might then have given you 10 introduction; proposal: Which of
ized that I had no idea what sentence (1a) much stronger verbs of several syllables thoseor which combination of those
was trying to say, but I could still tell her each and required you to use each in a sen- was meant to be the action of the sen-
how to rewrite her sentence so that her tence for Tuesdays homework. tence? Only the writer knew for sure. q
meaning would become available to a ma- I am offering you different advice:
jority of her readers. All she had to do was Use strong verbs and avoid weak verbs.
to make those two nominalized actions My advice, which sounds exactly the
into verbs, and her meaning would float same as hers, is different because of the
to the surface. Quickly, and with little ef- way I define strong and weak. No
fort, she produced the following revision, verb is strong or weak by itself, but only

Published in Litigation, Volume 38, Number 2, Winter 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may 2
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
becomes the story of the defendant. But
they wont let us do that.
What do they let us do? That is best
On the Papers put not in terms of what they allow, but

W HOSE STORY IS THIS


rather in terms of what we tend to do
most of the timeeven though no one

SENTENCE? DIR ECTING


ever taught us to do it in school. It is what
I call a reader expectation.

R EA DERS PERCEPTIONS
Readers tend to read a clause as being
the story of whoever or whatever shows

OF NA R R ATIV E
up as the grammatical subject of that
clause. They tend to do that no matter
how you as author would like the sen-
GEORGE D. GOPEN
tence to be interpreted. Therefore, for
the three previous sample sentences,
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
most readers will read (A) as the story of
the defendant, (B) as the story of the
plaintiff, and (C) as the story of the re-
fusal to forward the shipment. Since
readers will tend to do this whether you
want them to or not, it makes sense that
you become aware that each of your
clauses will be a narrative told from the
perspective of its grammatical subject.
Please take a moment to rank the follow- you to be telling in any given sentence. In a one-clause sentence, the gram-
ing three sentences by quality of writing. There is no rule hereonly high proba- matical subject will usually be read as
Which is best? Which worst? bilities; but those probabilities are high whose story the sentence will be. But
enough for you to take them into consid- what if your sentence contains two (or
(A) The defendant deprived the plain- eration with every sentence you write. more) clauses? Compare these examples:
tiff of his contractual rights by refus- Sentences (A), (B), and (C) cannot be
ing to forward the shipment. saying completely different things, since (D) Even though the plaintiff deliv-
all three deal with the same two people ered the goods on time, the defendant
(B) The plaintiff was deprived of his and a single action. Howeverthough chose to refuse them.
contractual rights by the defendants perhaps less obviousthe three sentenc-
refusal to forward the shipment. es cannot be identical in meaning, be- (E) The defendant chose to refuse the
cause in each the information appears in goods, even though the plaintiff de-
(C) The refusal to forward the ship- a different order. Word order, word livered them on time.
ment by the defendant deprived the placement, and sentence structure all
plaintiff of his contractual rights. send important signals to readers con- In (D), the first clause is the story of
cerning what function or functions each the plaintiff, and the second is the story
If you chose (A) as the best, you were word is intended to perform. of the defendant. Whose story is the sen-
wrong. If you chose (C) as the best, you If we could make a new rule in English tence as a whole? Most readers will say it
were wrong. If you chose (B) as the best, that a sentence should be read as being is the defendants. In (E), the first clause
you too were wrong. The right answer to the story of whatever person, thing, or is the story of the defendant, and the sec-
that question is always, It depends. On idea is printed in green, then no one (ex- ond is the story of the plaintiff. Whose
what does it depend? It depends in part cepting those who are color-blind) would story is the sentence as a whole? Most
on whose story the sentence was trying ever misperceive an authors intentions readers again will say it is the defen-
to tell. This article discusses how you, as as to whose story it is supposed to be. dants. This tells us that in sentences
a writer, can controlinsofar as that is Color the defendant green in each of with more than one clause, readers tend
possiblewhose story a reader perceives these three sample sentences, and each to read the sentence as a whole as being

Published in Litigation, Volume 38, Number 3, Spring 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may 1
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
the story of whoever or whatever shows designated delivery spot (see Section This revision, (F2), a full 95 words, is
up as the grammatical subject of the 27(B)(i)(a) of the contract), the defen- actually 24 words longer than the origi-
main clause. In both cases here, the dant chose to refuse them. nal, (F1). It is significantly easier to read,
plaintiff shows up in the even though I would argue, because at every moment
clause; the defendant shows up as the It is not the mere length71 words it is so clear whose story is being told.
subject of the main clause. that makes this sentence hard to read; The first main clause is the story of the
I put these terms in quotation marks rather, it is the nature of its structure, defendant. What action did that defen-
because I use them differently from your which shows a lack of concern for or dant do? We look to the verb: The defen-
grammar books. There are only three knowledge of how readers go about read- dant chose to refuse. After the colon,
units of discourse we need concern our- ing. Whose story is this sentence as a we get a series of three main clauses that
selves with in trying to control writing: whole? It is the story of the grammatical form (as the colon had promised) a list
the main clause; the qualifying clause subject of the main clausein this case, that redefines the term extraordinary
(my term); and the phrase. A main the defendant. When do we learn that efforts. Each subject/verb combination
clause has a subject and a verb and can presents us with another "whose

I am opposed to those
stand by itself as a sentence. A qualify- story"/"what's happening" sub-story:
ing clause has a subject and a verb but the plaintiff delivered; the plaintiff ac-

who tell us to make


cannot stand by itself as a sentence. A companied them; and officials called
phrase is a word grouping that lacks ei- ahead.

a sentence better by
ther a subject or a verbor both. For a In a previous issue of Litigation
reader, a main clause has greater weight (Winter 2012), I argued that readers tend

making it shorter.
than a qualifying clause; and a qualifying to look to the verb to find out what is go-
clause has greater weight than a phrase. ing on in a sentence. Combining that with
It is that simple. the whose story argument here, the
A main clause, therefore, tells the sen- identity? Far too late. We have been read- combination of subject-verb tells the
tences main story. The grammatical sub- ing for 66 wordsthe equivalent of about reader whose story it is and what is hap-
ject of that clause is therefore the whose three normal professional sentences pening. That core of information is es-
story of the sentence as a whole. before we are informed that all of those sential for readers of English to have as
That connects to a concern about sen- 66 words had been telling us a story about soon as possible in a sentence. It also
tence length, especially in legal writing. I the defendant. Give us that knowledge up must be accurate. If your main point in
am very much opposed to all those well- front, where we expect it to appear, and this sentence is what the defendant did,
intentioned writing teachers and Plain the same information becomes far easier do not let the plaintiff appear as the
English promoters who tell us to make sen- to digest on first reading. grammatical subject of your main clause.
tences better by making them shorter. That It makes sense, therefore, not to cre-
is a false issue. There are wonderful 150- (F2) The defendant chose to refuse ate sentences with two main clauses on
word sentences and deplorable 10-word the goods, despite the plaintiffs ex- either side of a comma followed by an
sentences. When the length of a sentence traordinary efforts to comply with and.
becomes burdensome, it is usually because the delivery requirements: The plain- The plaintiff did this, and the defen-
something has gone wrong with the struc- tiff delivered the goods on time, with- dant did that.
ture. Consider this lengthy sentence: in two hours of the expiration date as We know whose story each clause is;
explicitly delineated by Section 27(A) but whose story is the sentence as a
(F1) Even though the plaintiff deliv- (2)(d) of the contract; the plaintiff ac- whole? The and fails to tell us how to
ered the goods on time, within two companied them with the appropri- put these two clauses together. It is a
hours of the expiration date as explic- ate papers, duly signed and counter- weak structure: Avoid it. q
itly delineated by Section 27(A)(2)(d) signed by the appropriate officials, as [I will continue this topic next issue.]
of the contract, and accompanied required by Section 27(B)(i)(a) of the
them with the appropriate papers, contract; and, in addition and without
duly signed and counter-signed by being required to do so, those officials
the appropriate officials, who had had called ahead to indicate they
called ahead to indicate they were were soon to be on their way to the
soon to be on their way to the designated delivery spot.

Published in Litigation, Volume 38, Number 3, Spring 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may 2
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
station, fearing he might miss his
train. When he saw the train begin to
move forward, he increased his speed
On the Papers to a dead run. He attempted to leap

CONTROLLING THE
from the platform onto the moving
train. He was aided both by a guard

R EA DERS PERCEPTION
on the train who pulled him up and by
a guard on the platform who pushed

OF YOUR CLIENTS
him forward. Jostled as he was from
two opposite directions, he lost con-

STORY
trol of his package, which contained
fireworks. It fell on the tracks and vi-
olently exploded. The shock of his
GEORGE D. GOPEN
packages explosion overturned a
large scale at the other end of the plat-
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
form, which hit and injured the
plaintiff.

If the plaintiff had been suing the pas-


senger, this narration might support her
case well. Each sentence until the last
one has the passenger (or a reference to
During my first week of law school, we the readers perspective on the facts that him) as its grammatical subject. Even the
were shown a highly effective teaching it would be clear his client was in the last sentence is the story of his package.
film. It pictured a car accident taking right. How is that possible? It is relatively clear from this narrative
place at an intersection. The cameras In the last issue of Litigation, I ar- that the passengers actionsreckless
perspective was from the southeast cor- gued that most readers of English per- and intentionalcaused her injuries.
ner. It was clear to us that X was at fault, ceive a clause as being the story of who- But the plaintiff was suing the rail-
and Y was the hapless victim. After a ever or whatever is its grammatical road. How should we change this narra-
brief disquisition on liability, we were subject. Jack loves Jill is the story of tion if we wanted this story to be sub-
shown the scene again, this time shot Jack; and Jill is loved by Jack is the sto- stantially the railroads fault? We should
from the northwest corner. It became ap- ry of Jill. If you want to tell Jills story, make as much of the narrative as possible
parent to us that we had it all wrong: Y the latter sentence is far superior to the the story of the railroadby keeping the
was at fault, and X was the hapless victim. formerdespite its greater length and its railroads personnel up front as the
Now we were privy to the truth. Then passive voice. A multi-clause sentence is grammatical subjects.
we saw the scene a third timefrom the the story of whoever or whatever shows
northeast corner, from where it was clear up as the grammatical subject of the sen- Version B: Guard A, on a train that
that nothing was clear. From that angle, tences main clause. was beginning to move out of the sta-
liability was impossible to assign. Where While this is an important reader ex- tion, perceived a would-be passenger
stories are concerned, perspective makes pectation to understand for any given looking like he was going to try to
all the difference. sentence, it is yet far more important jump into the moving car. Instead of
This is equally the case for presenting when considering how to construct a warning the man not to make this ef-
stories in prose. Context controls mean- continuing story. As a writer, you can fort, he offered his help to pull him
ing, and perspective creates context. control which corner of the intersection aboard. At the same time, Guard B, on
Clarence Darrow used to boast to his will be the home of the camera. the platform, instead of prohibiting
opponents, If you let me state the facts, Here is a story you might remember. the passenger from making the leap,
I will let you argue the lawand I will forcefully tried to support him in his
win. He did not mean that he would sup- Version A: A passenger, carrying a risky effort. By jostling the passenger
press facts necessary to his opponents package he had wrapped in newspa- from two different directions, the
case, but rather that he could so control per, ran onto the platform at the train guards helped dislodge from his arms

Published in Litigation, Volume 38, Number 4, Summer/Fall 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or 1
disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
a package he was carrying, wrapped sentences to keep your reader interested. 1928), he did not try to slant the readers
in newspaper. Their actions caused Perhaps that was good advice back then; perception in an adversarial manner.
the package, which contained fire- it is very bad advice for you now. Back Instead, he presented the actions as hav-
works, to fall several feet to the tracks, then, your reader was primarily (and ing a number of different agentsspread-
where it exploded. The resulting maybe exclusively) Miss Grundy. As ing whose story it was appropriately over
shock overturned a large scale at the everybody. That left open the question of
other end of the platform, which hit responsibility, which he would then dis-

You can control which


and injured the plaintiff. cuss. Here is his narration, with the
grammatical subjects italicized:

corner of an intersection
From this continued perspective of
the railroad employees, we get a strik- Version D: Plaintiff was standing on a

will be the home of


ingly different story. The guardsas sub- platform of defendants railroad after
jects of those verbsare doing all the buying a ticket to go to Rockaway

the traffic camera.


problematic actions. In English, we read Beach. A train stopped at the station,
from left to right and through time. bound for another place. Two men ran
Whatever we encounter on the left con- forward to catch it. One of the men
textualizes whatever we discover to its reached the platform of the car with-
right. This story is slanted against the wonderful as she might have been, there out mishap, though the train was al-
railroad, in the same way Version A was was no way she could possibly be inter- ready moving. The other man, carry-
slanted against the passenger. ested in 42 essays on Why I Like the ing a package, jumped aboard the car,
We could slant the story in favor of the Spring, with their topic sentences, their but seemed unsteady as if about to fall.
plaintiff if we were to present each of the conclusions, and their compulsory list of A guard on the car, who had held the
details from her perspectiveby making three examples: door open, reached forward to help
her the grammatical subject as continu- him in, and another guard on the plat-
ously as possible. I like the spring because of the pretty form pushed him from behind. In this
flowers. I like the spring because of the act, the package was dislodged, and
Version C: The plaintiff was waiting tulips. I like the spring because of the fell upon the rails. It was a package of
for her train to arrive, standing on the roses. I like the spring because of the daf- small size, about fifteen inches long,
platform next to a large weighing fodils. I like the spring because of the and was covered by a newspaper. In
scale. She noted a commotion devel- pretty flowers. fact it contained fireworks, but there
oping at the other end of the platform was nothing in its appearance to give
as a train began its exit from the sta- She didnt mean interested; she notice of its contents. The fireworks
tion. She saw a would-be passenger meant sane. Daffodils are another when they fell exploded. The shock of
trying to leap aboard the moving reason I like the spring. Vary the way the explosion threw down some
train, with the guards on the platform you begin your sentences to keep me scales at the other end of the platform,
and on the train attempting to help from going insane! many feet away. The scales struck the
him. She noticed the passengers You do not have to keep your reader plaintiff, causing injuries for which
package drop to the tracksand then interested. Your reader is being paid to she sues.
was overwhelmed by the sounds and read you. You need to keep your reader
sights of a huge explosion. Suddenly controlled. Keep the grammatical sub- Palsgraf, 248 N.Y. at 34041.
she felt a great weight crack against jects of your sentences the same for as
her head and shoulders as she crum- long as you are telling that particular It is the judges job to consider every-
pled to the ground under the over- story. Then, by changing whose story the bodys and everythings story, knit to-
turned scale. She remained there in next sentence is, you will (silently) con- gether in the logical and chronological
great pain, pinned by the heavy scale, vey to your reader, . . . and now we are way that makes the best sense. It is an
until rescued. changing the focus of our attention to advocates job to tell the story as fetch-
this next story. ingly from the clients perspective as pos-
You may remember Miss Grundy, your When Judge Cardozo wrote the facts sible. Control whose story it is at all times,
middle school English teacher, admon- into his opinion in Palsgraf v. Long Island and you control the perspective from
ishing you to vary the way you begin your Railroad, 248 N.Y. 339, 162 N.E. 99 (N.Y. which the reader perceives that story. q

Published in Litigation, Volume 38, Number 4, Summer/Fall 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or 2
disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
seems obvious to them that a reader will
perceive the proper agency as long as a
sentence contains all the correct infor-
On the Papers mation. Howeverrepeating something I

W HO DONE IT?
have said before in this series of articles
it is insufficient to produce a sentence

CONTROLLING AGENCY
that is merely capable of being interpret-
ed the way you wish. You must structure

IN LEGA L W R ITING
the sentence so that it will be highly like-
ly to lead most readers to perceive your

PA RT I
thought. To do that, you have to know
what readers expect to find where. You
have to know what I call reader
expectations.
When you use the passive, you are in
GEORGE D. GOPEN danger of having the identification of
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
agency become ambiguous. The passive
is not bad; it is only dangerous. (I will lat-
er devote a whole article to the good uses
of the passive.) For now, we can define
the passive as a mode through which the
object of an action can become the gram-
matical subject of a sentence that de-
scribes it.
When Agatha Christie writes an engag- have to name the agent explicitly and,
ing mystery, the question of agency is so even more important, they have to place 1a. Jack loves Jill.
compelling that we refer to the book as a that agent in the right location in the 1b. Jill is loved by Jack.
Who Done It?. Where agency is con- sentence. 1c. Jill is loved.
cerned, the aim of a legal brief should be In a previous article (Whose Story Is
quite the oppositenot to mystify, but This Sentence? Litigation 38:3, Spring In (1a), Jack is the agentthe lover;
rather to clarify. It is probably obvious 2012, at 17), I have argued that readers of and Jill is the object of that action of lov-
that the macro-issues of who was respon- English perceive the grammatical sub- ingthe lovee. When that which might
sible for doing the major actions in a case ject of a sentence as the agent that per- have been the grammatical object of a
must be attended to with energy and care. forms the action, and they perceive the verb becomes the subject of that sentence,
It may be far less clear how important the action as being whatever the verb an- the agent can remain present through
question of agency is in every clause of ev- nounces it to be. While this may not be the use of the word byas in (1b); or the
ery sentence. This article begins a discus- the case 100 percent of the time for 100 agent can disappear altogetheras in
sion of how to control a readers percep- percent of readers, it is, I argue, the de- (1c).
tionor non-perceptionof agency at the fault value expectation, happening more Look what can happen when writers
micro-level of clauses and sentences. than 90 percent of the time. If that is the are so aware of agency that they lose
The agent of a clause or sentence is case, you, as a writer, are identifying the sight of what readers will perceive.
quite simply the person or thing that per- agent of the action every time you use the Consider this example:
forms the action. If the sentence is writ- active voice: The agent is the grammatical
ten in the active mode, the agent and the subject of your sentence. For your readers 2a. A study was performed on the
grammatical subject are one and the to understand your thought, that subject- causes behind the decrease in the
same; if it is written in the passive mode, verb combination must represent the identification of child abuse among
the agent may be elsewhere or missing agent-action you are trying to convey. emergency room service by the social
altogether. Most often, but not always, This poses a real problem for writers, services staff.
writers need to let the reader know who because they tend to know in their own
is doing what. In other words, writers minds quite clearly who did what. It I have used this example hundreds of

Published in Litigation, Volume 39, Number 1, Winter 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 01
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
times in legal writing workshops. I ask answer my questionWhat did the agent somebody raises the mystery of who
the participants who is the agent? and do?by starting at the beginning of the that somebody was: SomebodyI dont
what action is the agent doing? Their sentence. Immediately they encounter A know who, but will they ever hear from
response is invariably the same. Take a study was performed. Because that con- me when I find outbroke the window.
moment before reading further to an- stitutes a reasonable answer to my ques- If that mystery is a distraction from
swer those questions yourself. tion, they tend to cease searching. the importance of the broken state of
There is always general agreement I believe this signals an important the window, the agency should be sup-
that the agent here is the Social Services general tendency we have as readers: We pressed, as it is in (3a).
staff. That is correct. There is also over- tend to cease any act of interpretation as In English, we have two main ways of
whelming agreement (usually more than soon as we are allowed to do so. The mo- suppressing agency:
95 percent) that the action done by that ment a sentence makes some sense, we
staff was either to perform a study or presume that is the sense it was intended (a) We can articulate the action not as
to study something: The social services to make. We are often wrong to assume a verb but as a noun. Then no one has
staff studied why hospital staff were not that whatever interpretation we come to be around to do that action: It just
identifying child abuse in the ER. upon first is the one the writer intended; happens.
That is perfectly possible. It is also but we are safer in making that assump-
perfectly probable. But equally possible, tion when we are reading the prose of an Then X and Y discussed the issue.
and equally probable, is that someone excellent writer. Alas, there are precious Then discussion ensued.
from the outside studied why the social few excellent writers among us these days.
services staff were decreasing their iden- Excellent writers control when agen- (b) Alternatively, we can substitute
tification of child abuse in the ER. And cy should be made clear and when it the passive for the active, which will
equally possiblebut we hope less prob- should be repressed altogether. There then allow for the jettisoning of the
ablewould be that someone from the are good, logical, ethical, and sensitive agent:
outside was studying why someone from reasons for not stating agency:
the inside was decreasing in identifying X broke the window.
the fact that social services staff were No one knows or cares who did the The window was broken by Chris.
abusing children. action. The window was broken.
This ambiguity can be neatly resolved The identity of the agent is irrelevant
by making the social services staff the and would be a distraction if men- (There is a third possibility, known as
grammatical subject of whatever verb tioned. the ergative mode, in which the action
would express the action they actually Everyone knows who did it, even is described by its effect instead of by its
performed: without your telling them. being done: The door opened. This oc-
To mention who did the action would curs so rarely that we need not further
2b. The social services staff studied be unkind, insensitive, impolitic, or attend to it here.)
the causes. . . . [or] downright cruel. Whenever you need to suppress agency,
2c. X [from outside] studied why the I urge you to use the passive. (This is only
social services staff were decreasing Most of the time, however, your reader one of a number of excellent uses for the
their identification of . . . [or] will do well to know precisely and with- passive.) That will allow you to keep the
2d. X [from outside] studied why Y out much effort who is doing what. action articulated not by a noun but rather
[from inside] were not noticing that Sometimes agency is not the issue of by a verb. Readers will far more easily per-
the social services staff were abusing the moment and would act as a distrac- ceive what the action is if, when they go to
children. . . . tion if suggested. This is often the case the verb to find it, it is still there.
when the agent is not known: In the next article in this series, I will
If all three of these are equally possi- explore the damage that can occur to the
ble, and two of the three are equally prob- 3a. The window was broken. identification of agency when we articu-
able, why then do 95 percent confidently 3b. Somebody broke the window. late action in nouns instead of verbs. I
vote for only the first of the three inter- will also consider the ethical questions
pretations? I suggest this is the case be- If the broken state of the window is that arise when agency is suppressed by
cause in English we read from left to right the issue to be considered, (3a) is supe- any means: Mistakes were made. q
and through time. People begin trying to rior to (3b). Articulating the agency of

Published in Litigation, Volume 39, Number 1, Winter 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 02
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
accurate, then a decision could be
made.

On the Papers The author of (1a) tells me she meant

W HO DONE IT?
to refer to three specific actions. Here it
is again, with her actions italicized:

CONTROLLING AGENCY 1b. If there could be the presentation of

IN LEGA L W R ITING,
data that would indicate the represen-
tation of the status of the problem was

PA RT II
accurate, then a decision could be made.

Did that help you better understand


the sentences meaning? If you think you
now understand it, you are still deceiving
GEORGE D. GOPEN
yourself. And that is not your fault: It is
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
a trick nominalizations play on readers.
The fault lies in the writer. Heres why.
Because readers look to the verb to dis-
cover the action of a sentence, putting it
elsewhere hides it from the reader. When
actions are articulated as active verbs,
their subjects necessarily and automatical-
ly reveal the agents who did those actions.
If we revise (1a) so that the three actions
In our culture, lawyers have an affinity to believe that the same immediate associ- appear as verbs, we discover how ignorant
for abstract nouns. The original fault is ation will happen in the minds of all their we have been of who is doing what:
Aristotles. Before him, most people had readers. To make matters worse, readers fool
noticed that things moved. Aristotle turned themselves into thinking they understand 1c. If [ ? ] presents data that would indi-
this into an abstract concept by using the a sentence as long as it sounds professional cate that [ ? ] had accurately represent-
Greek equivalent of the word motion. and makes some sense. As soon as a sentence ed the status of the problem, then [ ? ]
An idea stated as a noun tends to sound makes some sense, readers tend to assume could decide to . . . .
far more profound than when it is stated that is the sense it was intended to make.
as a verb. We call nouns made out of verbs It is insufficient to write a sentence that is Not only do we not know who these
nominalizations. They successfully keep merely capable of making the sense you in- agents are, but we cannot even tell how
nonprofessionals at a distance from the con- tend. The sentence is sufficient only when it many people are involvedone, two, or
cepts being invoked. is highly likely to communicate that thought three. Put the same person in all three
Legal writing is often attacked for rely- to more than 90 percent of its readers. brackets: The sentence makes sense. Put
ing too heavily on these nominalizations. Nominalized sentences can sound so three different people in the three brack-
But the problem here is neither their na- intellectually professional that readers are ets: The sentence makes a different kind
ture nor their number: It is their use at in- not aware of how incomplete the commu- of sense. Put any combination of one-and-
appropriate moments. Quite simply, nomi- nication actually was. Here is an example two or two-and-one in the brackets: The
nalizations are consistently treacherous of multiple nominalizations making readers sentence makes six additional kinds of
when they are allowed to state what is go- mistakenly believe they know what the sen- sense. We are woefully ignorant of what
ing on. That job should be left to the verb. tence is saying. How well do you understand this writer was trying to conveyno mat-
Lawyers are so in touch with who did the following sentence on first reading? ter how hard we have tried nor how suc-
what in their cases that any word they cessfully comprehending we might feel.
use to refer to an action will immediately 1a. If there could be the presentation of When these nominalizations-repre-
bring to their mind the people and events data that would indicate the representa- senting-actions pile up in great numbers,
involved. As legal writers, they would like tion of the status of the problem was leaving agency continually unarticulated,

Published in Litigation, Volume 39, Number 2, Spring 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 01
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
readers have great trouble following the (1) The corporation or its authorized (In the 1970s, strip mining companies
story. Another example: agent explicitly acted to enter the would cut down all the trees on a hill, ex-
contract; or tract the minerals from the ground, and
2a. To obligate a corporation upon a con- leave a ravaged-looking mess behind when
tract to another party, it must be proven (2) the corporation implicitly ad- finished.) I have italicized the nominalized
that the contract was its act, either by opted and ratified the contract phrases that disguise the actions.
corporate action, that of an authorized when it acquiesced in or accepted
agent, or by adoption and ratification its benefits. 3. The Secretary also concedes that sur-
and such ratification will be implied by face coal mining operations will destroy
acquiescence or the acceptance of the In this second circumstance, the other wildlife. He contends that while re-
benefits of such contract, it being es- party must show that when the corpo- duced populations will result from in-
sential to implied ratification that the ration accepted the benefits of the con- creased human activity in the areas and
acceptance be with knowledge of all tract, the corporation knew all the from the loss of habitat, no adverse long-
pertinent facts. pertinent facts. term impact is anticipated.

A non-lawyer will be dizzied by this Even non-lawyers recognize this as What did he say? It sounds like he was
sentence. Lawyers will be less dizzied, be- English they could understandif they telling us that although there may be some
cause they have to read so much prose like had a pressing enough need. But, you might rough moments along the way with strip
this; but they will be severely hampered in query, how did this become two sentences mining, everything will be just fine in the
their comprehension all the same. I asked instead of onewith the first of these di- long run.
the author to bold-face the terms that de- vided into two subsections? That happened Let us look at the italicized noun phrases.
noted the actions he intended to convey. because the author discovered the shape Increased human activity refers to the
Here is what he bolded: of the story he was telling. This is no mere act of strip mining.
cosmetic or mechanical revision process Reduced populations does not refer to
2b. To obligate a corporation upon a I am suggesting: It is a controlled way of groups of people losing weight: The appro-
contract to another party, it must be revisiting your thought process. priate verb-centered translation might be
proven that the contract was its act, ei- While doing this revision, my client re- kill the bunnies.
ther by corporate action, that of an au- alized that he had been referring to two Loss of habitat does not refer to crea-
thorized agent, or by adoption and rati- main alternatives, and he had then offered tures misplacing their houses: It translates
fication and such ratification will be a smaller qualification of the second one. to the verb phrase destroy their homes.
implied by the acquiescence or the ac- It made sense to state the general rule in a
ceptance of the benefits of such con- single sentence, reserving the smaller quali- Given this, by whom is no long-term im-
tract, it being essential to implied rati- fication for a separate sentence. He created pact [to be] anticipated? Not by the bun-
fication that the acceptance be with the numbers and indentations for the first nies; but rather by the people who stand to
knowledge of all pertinent facts. sentence when he realized its two-fold na- profit from the strip mining.
ture. The structure of the revision flowed The full translation: By strip min-
Note that after the first two, all the oth- from the inherent re-organization of the ing, we kill the bunnies and destroy their
er ten are nominalizations. thought. We have a technical term for this homes; but it doesnt bother us.
I then asked him to change the bold- healthy relationship between structure and When we explore this environmental
faced words to verbs and to supply the ap- substance: We call it good writing. problem by using grammatical subjects to
propriate subject for each verb. With this The moral of this tale: When agents and identify the agents and verbs to identify the
list of agent-actions now expressed as sub- actions are constantly expressed as subjects actions, we get to the core of the debate. On
ject-verbs, I asked him to reconstruct the and verbs, the story is likely to be perceived the one hand, bunnies suffer; on the other
story he had wanted to tell us, expressing by most readers with great clarity. hand, people benefit. That, in a nutshell,
the action as verbs. Another example: The constant omission of agency can is the environmental problem. How much
raise ethical issues. Here is a quote from suffering by the bunnies are we willing to
2c. For a contract to obligate a corpora- a news report of a 1972 press conference impose in order for us to benefit from the
tion to another party, the other party in which the secretary of the interior was activity? The problem is no longer hidden
must prove that the corporation acted intentionally understating the downside of by the language. q
in one of two ways: the controversial practice of strip mining.

Published in Litigation, Volume 39, Number 2, Spring 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 02
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
But worst of all is the case when the in-
terruptive material is the information the
writer wanted us to emphasize the most. Its
On the Papers structural location tells us one thingDont

HOW TO OV ER BUR DEN


pay much attention to me because youre still
waiting for the verb to arrive; but the author

YOUR R EA DER :
intends that information to be shouting, Look
at me! Im the most important thing here! That

SEPA R ATE YOUR SUBJECT


is the most serious problem with sentence (1a)
and thousands of sentences just like it.

FROM YOUR V ER B
The moment we read the grammatical sub-
ject conclusion, we gear up to experience the
arrival of its verb. But instead of the verb, we
get a that clause. During the reading of the
that clause, much of our reading energy must
GEORGE D. GOPEN be set aside to continue anticipating the arrival
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
of the main verb.
But within the interruptive that clause, we
encounter a second subject-verb combination.
When that subordinate subject appears, we for-
mulate a second verb-arrival expectationthis
time for the verb of the that clause. We are
now dealing with two expectations aimed at
We should stop evaluating the readability process, we need to hear them rever- the arrival of two separate verbs, the second of
of our sentences by looking at the combi- berating at the same silent decibel level. which must arrive first. That is a complicated
nation of the meanings of words and look Waiting for the verb to appear is like wait- reading task.
instead at the structure in which the ing for the second shoe to drop. If that ar- When that second verb finally arrives, so
words are assembled. Take this sentence, rival is delayed long enough, eventually it long awaited, it tells us nothing that we did
for example: commands all available attention. not already know about the subject. Then we
As a result, anything that intervenes encounter a negative label, clearly erroneous,
1a. The trial courts conclusion that the between subject and verb is read as inter- and the door slams shut. We realize that what-
defendants made full disclosure of all ruptive. If the interruption is brief and eas- ever the sentence was meant to communicate,
relevant information bearing on the ily distinguishable, it causes no problem: we have missed it.
value of Knaebels stock is clearly We tend to blame ourselves for such a lack
erroneous. SUBJECT, however, VERB. . . . of comprehension. If that describes you, then,
please, stop feeling bad. The fault here is not
The sentence is hard to read. Why? It If it is slightly longer, but digestible in yours, but the writers. If you have been paying
feels long, but not because it contains 24 one gulp, it still will not be likely to over- a modicum of attention to a sentence but find
words. Nor are any of its words unfamiliar. burden us: its sense imperceptible even though its words
It is hard to read because of its structure. are recognizable, it is most likely the fault of the
Its verb (is) is separated from its subject SUBJECT, except on Tuesdays, VERB. . . . writer. Perhaps all the necessary words are on
(conclusion) by 17 words71 percent of the page, but they do not appear in the proper
the sentence. This is a burdensome wait If, however, that interruption grows structural locations to send you the necessary
because of the readers expectation that to great length, we begin to grow weary instructions for the interpretive process.
every grammatical subject will be followed under the burden of continually having We can repair the damage easily enough:
almost immediately by its verb. to wait for the verbs arrival: Just move the verb next to its subject and
The subject tells us who is doing the ac- reconstruct further as seems necessary.
tion; the verb tells us what is happening. SUBJECT, except on Tuesdays, but not For our sample sentence, we can move the
Those two pieces of information need to if it is raining, unless it had also rained main verb, is, next to its subject, conclusion.
be experienced together. In our reading on the previous Monday, VERB. . . . The revision of the first clause:

Published in Litigation, Volume 39, Number 3, Summer 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 01
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
1b. The trial courts conclusion is clearly 1b. The trial courts conclusion is clear- In (1f), no piece of information arrives for
erroneous. . . . ly erroneous. . . . which we are not already somewhat pre-
pared; and
Is is the verb; but is it the action? The Let us turn now to the contents of the The arrival of every new word seems to
author told me he intended two actions that clause: lean forward with possibilities as to
conclusion and erroneousthe second of where we might go from here.
which was more important than the first. We . . . that the defendants made full dis-
can signal that to the reader by making them closure . . . These are two benchmarks of good, clear
both verb forms, but giving the main verb over writing. To demonstrate how these function
to the more important action: Once again the author had failed to com- in sentence (1f), here is a slow-motion replay
municate to us the action by announcing it in of how a reader well might experience the
1c. The trial court clearly erred in conclud- the verb. The defendants did not make any- interpretive journey:
ing that. . . . thing; they disclosed somethingor failed The trial court . . .
to disclose it. We can make that action clearer (Well, what did they do ?)
Notice how we are now free to pay full at- by making it the verb: clearly erred . . .
tention to whatever comes after the that. We (Made a mess of things, did they? How
are no longer holding something in reserve, 1e. . . . that the defendants fully did they do that?)
waiting for a main verb that has yet to arrive. disclosed . . . in concluding . . .
We also are now informed that we should color (In concluding what?)
everything in the that clause stupid. If we opt for the strongest version of the that the defendants . . .
We must understand, however, that version initial clause, here is our complete revision: (And what did they do?)
(1c) is not necessarily the right version, or fully disclosed . . .
even a better one. It certainly is stronger in 1f. The trial court clearly erred in conclud- (What did they disclose?)
the force of its accusation of the courts error, ing that the defendants fully disclosed everything they knew . . .
but there are times when such strength can be everything they knew that was relevant (Knew? About what?)
a drawback. What, for instance, if the writer to the value of Knaebels stock. that was relevant . . .
will have to appear in front of this court two (Relevant to what?)
months later to argue a different case? Under The concepts communicated by sentence to the value of Knaebels stock.
that condition, The trial court clearly erred (1f) are not as difficult as they appeared to (Ah, yes.)
in concluding that . . . could now be too strong. be in sentence (1a). The sentence no longer
In such a case, what could we do? seems long, even though it has the same num- Important: I am not suggesting a new rule
The court had done two actions: (1) it had ber of words as the original. The big differ- that we should never interrupt between a
erred, which it was not supposed to do, and ence: Sentence (1f) does not misuse reader subject and its verb. Rather, I am indicating
(2) it had concluded, which it was supposed energy by mis-locating its information. To that whenever you do this, the intervening
to do. To soften the accusation, we could shift experience how powerful that mis-location material will be read with far less emphasis.
the focus to the more acceptable action by can be, read once again the original sentence Sometimes that is to be desired.
making concluded the main verb. We would (1a), noting how difficult the sentence re-
reduce the inappropriate action to the gram- mains, even though we have just spent a great 2a. You may never, except on Sunday, park
matical status of an adjective: deal of energy contemplating its contents: in the A lot.

1d. The trial court erroneously concluded 1a. The trial courts conclusion that the 2b. You may never park in the A lot, except
that. . . . defendants made full disclosure of all rel- on Sunday.
evant information bearing on the value of
This is softer than (1c). Knaebels stock is clearly erroneous. Sentence (2a) undercuts the exception;
Might there be a situation in which (1d) is sentence (2b) emphasizes it. Reader expecta-
still too harsh? If so, to soften it even further, As long as we have to wait for the arrival of tions should serve you not as rules, but rather
add marshmallow: We could have the court the verb, we cannot be paying enough appro- as tools. q
do nothing, by not allowing it to be the gram- priate attention to the intervening material.
matical subject. We could put the blame on There are two additional reasons (1f)
the conclusion: reads with so much more ease than (1a):

Published in Litigation, Volume 39, Number 3, Summer 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 02
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
campaign speech by Walter Mondale,
who was the Democratic candidate up
against Ronald Reagan seeking a second
On the Papers term.

THE STY LE PROCL A IMS A. I have refrained directly from criti-

THE L AW Y ER : YOU A R E
cizing the President for three years.
Because I believe that Americans must

W H AT YOU W R ITE
stand united in the face of the Soviet
Union, our foremost adversary and be-
fore the world, I have been reticent. A
fair time to pursue his goals and test
his policies is also the Presidents right,
I believe. The waters edge is the limit
GEORGE GOPEN
to politics, in this sense. But this can-
not mean that, if the President is wrong
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
and the world situation has become
critical, all criticism should be muted
indefinitely.

Would this passage, in 1984, have made


you want to jump out of your chair and
find the nearest polling booth? Mondale
was a long-term senator, respected by
most of his colleagues on both sides of
the aisle, moderate in his tone, and pleas-
So often in professional lifelife in any whether you wish it to or not, it makes ant in his demeanor. And yet he lost that
professionwe exist in the minds of oth- great sense for you to be in charge of that election by the largest electoral margin
ers only through our writing. They know self-portrayal. in U.S. history, carrying only his home
us only through their acquaintance with In eight previous articles in this se- state and the District of Columbia. Exit
our letter of application or publication ries, I have explained some of the details polls suggested that even a majority of
or trial brief. The 18th-century French of what I call the Reader Expectation Democrats felt Mondale was not strong
naturalist Georges-Louis Leclerc, Comte Approach to the language. To know enough to face up to the continuing threat
de Buffon (in an age before gender-free whose story a sentence is, readers look posed by the powerful Soviet Union.
pronouns) put it memorably: to the grammatical subject; to know what Why should this have been the case?
actions are happening, readers look to the All those voters did not know the man
Writing well consists of thinking, feel- verbs; and to know what words are to be from long conversations with him or
ing, and expressing well, of clarity of read with the most emphasis, readers look from a careful review of his voting his-
mind, soul, and taste.... The style is to the sentences stress position or posi- tory. They knew him mostly from the few
the man himself. [Le style est lhomme tionsthe moments of full grammatical sound bites they heard from him on tele-
mme.] closure that are indicated by the presence vision. I suggest that it was sound bites
of a colon, semicolon, or period. Here I such as this speechnot even written
Man or woman, it matters not: Ones will use this last expectationthat of the by himthat proclaimed his supposed
writing style proclaims to a reader who stress position containing the most stress- weakness.
and what the writer is, personally, mor- worthy informationto explore an exam- None of the individual sentences can
ally, and intellectually. It is of the utmost ple of what great negative consequences be considered ungrammatical or intel-
importance as a lawyer for your prose to were produced by a political speechwrit- lectually vacuous; but the weakness of
proclaim accurately not only what is go- ers stylistic habit falsifying the character every single stress position suggested a
ing on in the case but also who and what of a major political candidate. political impotence that accorded with
you are. Because it will convey all these Here is a paragraph from a 1984 his overwhelming defeat.

Published in Litigation, Volume 40, Number 1, Fall 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 01
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The stress position occupant of the But this cannot mean that, if the believe a President should be given fair
first sentence emphasizes that our can- President is wrong and the world situ- time to pursue his goals and test his
didate has done the action of refraining ation has become critical, all criticism policies.In this sense, politics should
for three years. Since that is exactly how should be muted indefinitely. stop at the waters edge.But this cannot
long Reagan had been president, three mean that all criticism should be muted
years translates into forever. He might The negative verb (cannot mean) is indefinitely, no matter how wrong a
as well have said, I have refrained direct- so far separated from its resolving clause President may be or how critical the
ly from criticizing the president forever. (all criticism should...) that its negative world situation may become.
Vote for me. quality is undermined. As a result, we get
It is a strange claim to make. He a stress position strangely filled with all The style of this revised paragraph
continued: criticism should be muted indefinitely. It presents us with a man who is a tower of
almost produces this comical argument: strength, a man of clear vision, a man who
Because I believe that Americans must Because all criticism should be muted in- can lead us all forward. A forward lean
stand united in the face of the Soviet definitely, you should vote for me, because is created primarily by each sentences
Union, our foremost adversary and be- I have made a good start on that, having leaning forward, as the structural ex-
fore the world, I have been reticent. said and done absolutely nothing, forever. pectations would have us do, toward the
Of course, that was not his intended argu- stress position.
The long because clause increases ment; nor is it a logical interpretation of
our expectation of a powerful resolution his words. But because it is a compilation
in the main clause to follow. When that of everything he has put into his stress
main clause arrives, not only is it disap- positions, it subliminally becomes part of
We are all
pointingly anticlimactic, but it also fea- his message.
tures a stress position that once again The weak stress position poisons every creatures of
rhetorical habit.
highlights the candidates reticence. single sentence. Potentially important ar-
Putting the two sentences together, valu- guments for his side appear, but never in
ing the stress position occupants as the the stress position, where they would have
most important information, we get a been most noted and most valued. The
strange message: I have said and done speechwriters prose presents the image I am not saying he would have won;
nothing, forever. Why should we vote of a man who cannot see things to their but he would not have lost by such a huge
for a man with this record? More telling- conclusions, who cannot stand up for his margin. In looking at several others of his
ly, why should we vote for such a man? own insights, who is, in short, lacking in speeches from that campaign, I have not
(The style proclaims the man.) power and forceand will not be able to found a single sentence with a strongly
In the third sentence, he makes a point stand up to the Soviet Union. filled stress position. The weak stress po-
that at first sounds forceful: A fair time Am I suggesting that if his speechwriter sition was a major component of his style
to pursue his goals and test his policies is had only filled all the stress positions with rather, of the style he was given.
also the Presidents right; but then in the the important material of the sentence, his Through this faulty stylistic habit (the
stress position, he backs away with the stylethat is to say, his characterwould weakly filled stress position), the speech-
limp qualification I believe. Did he want be so transformed that he would appear a writer essentially created a literary char-
his claim to be taken as mere belief? man of strength and force and insight? Yes. acter, lacking in strength, and falsified the
If that were a sole instance of such Here is a revision of this passage in which character of the actual candidate. We are
a rhetorical retreat, it would not define something of import has been moved into all creatures of rhetorical habit; and the
his character; but he does the exact same every stress position. sum of all our rhetorical habits becomes
thing in the next sentence. The waters the identity of the character we show to
edge is the limit to politics, he declares B. For three years, I have refrained the reading world.
with some force; but he then undercuts from directly criticizing the President How are your stress positions? q
it by ending the sentence with in this of the United States.I have been reti-
sense.Nothing ends decisively. cent because I believe that Americans
The final sentence of the paragraph, must stand united before the world,
given this context, descends almost to particularly in the face of our foremost
the comical: adversary, the Soviet Union. I also

Published in Litigation, Volume 40, Number 1, Fall 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 02
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
1. Whose Story Is This?
Jack loves Jill. According to most read-
ers, this is Jacks story. Jill is loved by
On the Papers Jack. According to most readers, this is

W HY THE PASSIV E
Jills story. Readers expecteven assume
that a clause is the story of whoever or

VOICE SHOULD BE USED


whatever shows up first, as the grammati-
cal subject.

A ND A PPR ECIATED
When all we have is Jack, Jill, and their
passion, this may not seem a weighty con-

NOT AVOIDED
cern. But when legal sentences refer to
more information than this, it is another
matter altogether. Consider the following
set of sentences:
GEORGE D. GOPEN
a. Smith had notified Jones on the
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
morning of April 7 concerning the
lost shipment.
b. On the morning of April 7, Jones
had been informed of the lost ship-
ment by Smith.
c. The lost shipment had been dis-
closed by Smith to Jones on the
Our English teachers taught us to avoid To change this to passive, first we morning of April 7.
the passive. They said it was weaker and make the object (Jill) into the subject.
more cumbersome than the more energet- Then we replace the verb (love) with a All three are correct and informative
ic, more compact active voice. That was form of the verb to bein this case sentences, but they mean differently. To
bad advice. Very bad advice. Lawyers can- isplus a verbal adjective made out of choose between them, you must not use
not write sophisticated, powerful prose the previous verbin this case, loved: not your ear but rather your eye and your
without a skillful use of the passive voice. mind. If you are trying to inform us what
I could offer you a theological proof: God Jill is loved by Jack. Smith did, then your best choice here is
would not have created the passive had it (a). If it is Joness story you wish to tell,
no use. Or perhaps you might prefer the In the passive, the subject is the one choose (b). If the story is intended to fo-
Darwinian argument: The passive could acted upon. cus for the moment on the lost shipment,
not have survived unless it was fittest What does the passive accomplish (c) will do the job best. Getting the right
for something. But I prefer this circular for us? It moves the furniture around. whose story into the whose story po-
reasoning: The passive is better than the It is the feng shui of grammar. Why is sition is essential for clear legal prose. If
active in all cases in which the passive that important for us? Readers take the only way to do that furniture moving
does a better job than the active. It only most of their clues for interpretation is to use the passive, as in (b) and (c) above,
remains for a writer to recognize those not from word choice but from word then thank goodness we have the passive.
cases and to know how to handle them. placementfrom struct ural loca-
Since grammar is often left untaught, tion. Wherea word appears controls 2 . The Pa ssive More Ef fec t ively
I had better demonstrate the distinction most ofwhatthe reader will do with Indicates Passivity
between active and passive. In the active it. When the only way to get the right If we are writing the statement of facts
voice, the grammatical subject of the sen- word into the right place is to use the for a plaintiff in a torts case, we probably
tence is the agent (the doer) of the action: passive, then we must be thankful for should have a section in which the plain-
its existence. tiff is constantly up front as to whose sto-
Jack loves Jill. Here are the four most important ry it is, with many of the verbs being pas-
ways in which the passive allows us to sive. The plaintiff wasdone untoby the
Jack, the subject, does the loving. communicate far better than the active. nasty defendant. But in the section that

Published in Litigation, Volume 40, Number 2, Winter 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 01
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
describes all the terrible things the defen- 3. These false representations by When you wish to get rid of agency, I
dant did, the defendant should constantly Jones led Smith to give up his in- urge you to avoid nominalization and use
be up front, with active verbs showing all terest in the property. instead the passive. By using the passive,
the nasty deeds the defendant actively did. 4. Smith was convinced to cede his you retain the announcement of the action
interest in the property by the false in the verb, which is where readers expect
3. Get the Correct Information into the representations of Jones. to find it. If you give sentence (2) to 12 read-
Stress Position ers, they will vary in their interpretations:
The single most important structural All four of these sentences are cor- Four are likely to judge it to be featuring
location in a sentence is the stress posi- rect English. They all sound fine. We the action of predicting; four are likely
tion, defined as any moment in which the cannot pick a winner by using the ear. to say it is featuring the production ris-
grammatical structure of the sentence Once again, we have to use the eye and ing; and four others might swear that it is
comes to a full halt. This happens at every the mind. The first three are in the ac- stressing producing. Give sentence (3) to
period, but it also happens at any prop- tive; the fourth is in the passive. If we the same 12 readers, and 11 or 12 will say it
erly used colon or semicolon. Those are want to continue the long-standing story is emphasizing the predicting. Sentence
the moments when readers tend to sum- of Smith and wind up pointing the finger (3) will be by far the best if the next sen-
mon extra emphasis. Putting the most im- of accusation at Jones, then sentence (4), tence focuses on the prediction: That pre-
portant information elsewhere than in a despite its passive construction, will do diction turned out to be inaccurate....
stress position is the single most preva- by far the best job. Smith is once again Our English teachers have always
lent problem in legal writing today. If the in the whose story position, since this taught us that to produce clear, forceful,
passive is the only or the easiest or the continues to be Smiths story; but the communicative prose, we must constantly
best way to get the important words to emphasis provided by the stress position avoid the passive. It is perhaps the single
the end of the sentence or just before a turns the readers attention, with energy, worst idea we teach about the English lan-
colon or semicolon, then thank goodness to the false representations of Jones. We guage. It is impossible to write sophisti-
for the passive. could not have accomplished that with- cated legal prose about complex matters
For an example, here is a set of facts: out the passive. All the other sentences without skillfully employing the passive
are good sentences, but they do not serve voice. With it, we can change the location
Jones made false representations to our present purpose as well. of particular pieces of information so that
Smith about a piece of property in they appear in the structural locations in
which Smith had a substantial interest. 4. Use the Passive to Get Rid of Agency which readers expect to find those pieces
In English, there are two main ways of of information. Taken together, those loca-
As a result of those false representa- ridding a sentence of agencyof stating tions control how readers go about reading.
tions, Smith ceded his interest in the who did the action. One is nominaliza- The action of a sentence is expected to be
property. tionmaking the verb into a noun. Here announced by the verb. The perspective
is an active sentence: of the actionwhose story the sentence is
Let us say we have been telling Smiths meant to beis expected to be revealed by
story for several sentences: Smith did this 1. We predicted a 4 percent rise in whoever or whatever is the grammatical
Smith did thatand Smith did this other production. subject of the main clause. The most im-
thing. Now is the appropriate moment for portant piece of informationto be read
us to tell about his giving up his interest We is the agent. To get rid of us, make with greater emphasis than all the other
in the property; but more important to us the verb predicted into a noun. informationis expected to appear at the
than the ceding itself is our opportunity moment or moments of full grammatical
to point the finger at the villainous Jones. 2. The prediction was for a 4 percent closure, signaled by the presence of a co-
Which of these sentences would do the rise in production. lon, semicolon, or period. These are the
best job for us at this crucial moment? concerns that control the interpretive
The agent has disappeared. process of most readers of English.
1. By these false representations, The only other way to rid a sentence of If the only way we can get the right
Jones tricked Smith into ceding agency is to use the passive: information into the right places is to use
his interest in the property. the shape-changing passive voice, then
2. Because Smith believed Jones, he 3. A 4 percent rise in production was thank goodnessor God, or Darwinfor
ceded his interest in the property. predicted. the passive. q

Published in Litigation, Volume 40, Number 2, Winter 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 02
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
lost and the convention adopted a pro-
gram resembling Gitlows Left Wing
Manifesto.
On the Papers

CONTROLLING
(Note: Benjamin Gitlow (18911965) was
a prominent socialist who helped to found

CROW DED SENTENCES


the Communist Party, U.S.A. After years
as a leading American communist, Gitlow
found himself so at odds with Stalins gov-
ernment that he transformed himself into
a right-wing conservative, writing two
books that became highly influential in
the McCarthy movement against commu-
nism. But at the time of the convention at-
GEORGE D. GOPEN
tended by Whitney, he was a far left-wing
communist.)
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
Whitney had been found guilty of help-
ing to criminalize syndicalism. Justice
Brandeis (joined by Justice Holmes) wrote
a memorable concurring opinion, warning
that freedom of speech issues were involved
in Whitneys support of peaceful and law-
High school students can continually get demonstrate how the same sentence fits ful actions.
all As on essays if they construct one- his case perfectly. The question then be- The issue at hand for us, however, is not
clause sentences and put them in an or- comes this: How can a writer control the one of free speech but rather of clear and
der so that teachers will be able to infer use to which the reader will put all the convincing writing. Our example sentence
the logical connections that assumably semantic material assembled into a long, contains three major facts:
connect them. This works well because information-packed sentence? There are
teachers almost always know more than answers to this question, some of which Whitney was supporting peaceful and
the students about the topic at hand. But we deal with here. lawful methods of change.
professionals, especially lawyers, are I use as my example a sentence from Her resolution lost.
usually writing for audiences that do page 1121 of the textbook Constitutional Gitlows far more extreme manifesto
not yet know all the writer has to say. Law by Edward Barrett Jr., and William won.
Professionals are people paid to articu- Cohen (Foundation Press 1981)a book
late the necessary connections. I chose at random from my shelves and The example sentence, however, con-
Lawyers cannot tell judges, Here are a page to which I opened at random. In tains only one stress positionthat created
the facts; here are some precedents; we other words, these principles will apply to by the sentences period. (For a discussion
win. The other side might well be able any multi-clause sentence you can find. At of the nature of the stress position, please
to turn in the identical brief, leaving the issue was the case of Whitney v. California, see my earlier article on the subject in
judge to figure it all out for herself. My fa- 274 U.S. 357 (1927). The defendant was Litigation, Vol. 38, No. 1 (Fall 2011), at 20
vorite appellate judge claimed that about Anita Whitney, who in 1919 had joined 21.) A stress position is any moment of full
95 percent of the briefs submitted were the new Communist Labor Party. She syntactic closure. This occurs at any prop-
of almost no help to her in the decision- was a delegate to a convention to orga- erly used period, colon, or semicolon. It can
making process. nize a California branch of the party. Our never occur at a comma. The occupant of
Having gotten all the right compo- sample sentence from the textbook follows: the stress position tends to be what a reader
nents into a single sentence, lawyers will perceive as being the sentences most
believe that all that material will be re- 1a. There she supported a resolution stress-worthy material. Its location there
assembled in the readers mind just the which would have committed the orga- has the same force as if those words had
way the author intended. The opposing nization to the use of peaceful and lawful been printed in red, bold, italics, or capital
lawyer, however, might well be able to methods of change, but this resolution letters. As a result, the example sentence

Published in Litigation, Volume 40, Number 3, Spring 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 01
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
above (for most readers) calls our attention ful methods of change. This resolution 1d. Whitney having failed in her resolu-
to the victory of the Gitlow manifesto above lost. Instead, the convention adopted a tion to require peaceful and lawful meth-
the rest of its contents. program resembling Gitlows Left ods of change, the convention adopted a
What if that was not the authors inten- Wing Manifesto. program resembling Gitlows Left Wing
tion? None of their words, nor their facts, Manifesto.
would be incorrect; and yet most readers I do not hold with those who advise
would read the sentence in a way that was to make it better, make it shorter. The
not in accord with the authorial intention. brevity of these sentences is not their Variation No. 4
As writers, we have effective ways to control strength; it represents rather their equal- If, instead, the authors had wanted to pres-
what most readers will tend to emphasize. ity of weight and focus. ent us with a two-part narration, the first
These ways are not 100 percent surefire. Any of which deals with and stresses Whitneys
avid pro-communist or anti-communist or efforts, and the second part of which spot-
free-speech reader might well find what he Variation No. 2 lights the Gitlow victory, then summoning
or she wants to find. But for the 90-plus per- If, instead, the authors had wished us to a semicolon to produce stress for her sug-
cent of the readers who are trying their best understand that Whitneys losing and gestion would give her the Part 1 of the
to understand what the authors are trying Gitlows winning should attract our atten- story; and the final period would then give
to say, the reader expectations about giving tion equallyeven though the two state- Gitlows approach the victorious Part 2.
extra emphasis to material in stress positions ments about winning and losing add up
will carry the interpretive day. to the same resultthen they could have 1e. There she supported a resolution
Againno rules here. Each of the revi- accorded her effort a stress position by the which would have committed the orga-
sions that follow here will affect most read- use of a colon. A colon followed by a main nization to the use of peaceful and lawful
ers most of the timewhich is a great im- clause (one able to stand by itself as a sen- methods of change; this resolution hav-
provement over letting the readers figure tence) functions as a kind of equals sign. ing been defeated, the convention ad-
out how to assemble the 36 words for them- It states, Im saying the same thing again, opted a program resembling Gitlows
selves. Many Plain English experts claim a but in a different way. In these cases, the Left Wing Manifesto.
sentence is too hard to read if it exceeds 29 colon should be followed by a capital letter,
words. That is wrong. After 29 words, sen- which warns the reader to expect a main
tences just become harder to write. Clear clauseand not just a list of examples. (The Variation No. 5
writing can produce clear sentences of well latter is the more common use of the colon.) If, instead, the authors had wanted to build
more than 100 words. sympathy for Whitney, they could have given
So let us look at four revisions of this sen- 1c. There she supported a resolution her information two stress positions instead
tence, each of which controls reader empha- which would have committed the orga- of one, drawing more attention to her efforts.
sis by manipulating the placement of infor- nization to the use of peaceful and law-
mation in stress positions. ful methods of change, but this resolu- 1f. There she supported a resolution
tion lost: The convention instead which would have committed the or-
adopted a program resembling Gitlows ganization to the use of peaceful and
Variation No. 1 Left Wing Manifesto. lawful methods of change; but this
If the authors wished us only to know cer- resolution lost. The convention instead
tain facts existed, without their offering a adopted a program resembling
way for us (at the moment) to connect them, Variation No. 3 Gitlows Left Wing Manifesto.
they would do well to give each of the three If, instead, the authors had wanted to subject
major facts its own, separate, and therefore her efforts to a mere supporting role, saving As we can see, these four marks of punc-
potentially equal, stress position. They could the sole emphasis for the Gitlow triumph, tuationthe period, the colon, the semico-
do this by using the same punctuation mark then they could have done the following: lon, and the commacan be used by writers
for eachthe period. This would result in to control how readers will go about assign-
three separate sentences: Demote the material on her to some- ing function, weight, and prominence to the
thing less weighty than a main clause. same facts. Punctuation marks do these
1b. There she supported a resolution Mark the end of the information on her tasks whether we intend them to or not. It is
which would have committed the orga- efforts by a comma, which lacks the important we control them to make readers
nization to the use of peaceful and law- power to create a stress position. function the way we want them to function. q

Published in Litigation, Volume 40, Number 3, Spring 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 02
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
2. The qualifying clause. It has a
subject and a verb but cannot stand
by itself as a sentenceusually be-
On the Papers cause it starts with a word like

THE NUMBER TWO


that or although.
3. The phrase. Although recogniz-

PROBLEM IN LEGA L
able as a unit, it lacks either or both
a subject and a verb.

W R ITING: SOLV ED It is essential to know the difference


between these three because readers
value the information in a phrase much
less than the information in a qualify-
ing clause; and they value the informa-
tion in a qualifying clause much less
GEORGE D. GOPEN
than the information in a main clause.
If a writer puts the most important in-
The author is Professor Emeritus of the Practice of Rhetoric at Duke University, Durham, North Carolina.
formation in any unit other than a main
clause, the reader may well not perceive
its importance.
The number two problem in legal writ-
ing is simply this: In creating a sentence
with two or more clauses, lawyers tend
to start with a main clause and end with
a qualifying clause.
MAIN CLAUSE [comma], QUALIFY-
The number one problem in legal writing for a nonspecialist in language to under- ING CLAUSE [period].
in this country, which afflicts more than stand, it is not. You will understand it by The problematic moment for the read-
90 percent of legal writers, is the failure the end of this article. er occurs at the comma that follows the
to place the most important information A unit of discourse is a group of main clause. At this moment, the reader
in the sentences stress position. The stress words that has a beginning and an end- is receiving conflicting instructions from
position is any moment of full syntactic clo- ing. Thus, a phrase, a clause, a sentence, the writer:
suresignaled by the presence of a period a paragraph, or a whole document are
or a properly used colon or semicolon. For all units of discourseof different siz- Instruction No. 1:
a fuller discussion on the stress position, es, shapes, and functions. Our grammar Dear reader, this is a main clause.
see my earlier article in this series, The teachers in high school tried to teach us Thus, the information in it is meant to
Importance of Stress: Indicating the Most about many sentence-level units of dis- be considered of the utmost importance.
Important Words in a Sentence, Litigation, course. Their efforts, and ours in trying Emphasize it.
Vol. 38, No. 1 (Fall 2011), at 2021. Failing to learn the material, were sadly wast-
to place the material to be emphasized in a ed. You may have struggled with trying Instruction No. 2:
stress position will disguise its importance to understand the difference between a Dear reader, this comma tells you there
far more often than one might imagine. compound clause, a complex clause, and is no stress position here. Thus, you should
The number two problem, discussed a compound-complex clause. Forget it. not read the previous information as con-
below, is a subset of the number one prob- None of that information is of any help taining anything of utmost importance.
lem. Readers get reading instructions in writing. You need to know about only
from a writer not only by structural lo- three units of discourse: Which of these conflicting messages
cations like stress positions but also by is the reader to rely on?
the weight of the kind of unit of dis- 1. The main clause. It has a subject At that precarious moment of encoun-
course in which information appears. and a verb and can stand by itself tering the comma, readers are faced with
Although that might sound too technical as a sentence. a number of interpretive choices:

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not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
(a) Emphasize something in that first idea it was going to cause such problems Version (1c), which follows, is revised
clause. (But then the reader would for our readers. to create the number two problem in legal
have to decide which piece of infor- Here is an example. We begin with writing: It begins with the main clause
mation to weigh most heavily.) sentence (1a), a long but perhaps unprob- and ends with a weaker unit of discourse:
(b) Do not emphasize anything here; lematic sentence.
wait instead for the emphasis to be 1c. The defendant persisted in prom-
provided by the period at the end of 1a. Although the plaintiff had sent ising its customers the inventory
the sentence. several notices about the necessi- would be available as previously
(c) Delay the decision concerning em- ty of delaying the shipment, three scheduled, even though the plaintiff
phasis until the rest of the informa- of them in January alone, the de- had sent several notices about the
tion in the sentence has been encoun- fendant persisted in promising its necessity of delaying the shipment,
tered. (But then the reader will have customers the inventory would be three of them in January alone.
to revisit the whole sentence retroac- available as previously scheduled.
tively. Once the reader travels back- All the same information is present in
ward, the writer is in trouble.) The although clause is a qualifying (1c) as in the original version. The writer
clause; three of them in January alone knows exactly how much emphasis the
Why is this problem so widespread? is a phrase; and the rest of the sentence, reader is intended to exert in reading all
Until we were about 16, most of our sen- beginning with the defendant, is a main three main pieces of information; but the
tences contained only a single clause. We clause. Most readers will read this sen- reader has to figure out that important mat-
had gradually constructed a sentence-writ- tence with the greatest emphasis on the ter of emphasis by guessing. Read (1c) again,
ing machine in our brain that functioned main clausein part because of its status as if the defendants actions were the most
like this: To write a sentence, first choose as a main clause, and in part because it con- important. It can be done. But read it yet
a subject; then choose a verb; then unravel tains the sentences only stress position. again, this time assuming the plaintiffs
your complement; then end with a period. The qualifying clause, concerning the actions are to be most highly emphasized.
When we went to college, we were plaintiffs actions, will be read with some Again, it can be done. Reread it a third
handed reading assignments, in all dis- weight; but that weight will be in support time, emphasizing the three notices in
ciplines, written by professional authors. of the later arrival of the information in the January as the most important informa-
We noticed that all these important people main clause. tion. Again, it can be done. So with sen-
sounded different from usfor two main Because the fact that three notices were tence (1c), we still have all the informa-
reasons: (1) They used many hard words sent in January exists only as a phrase, tion; but we lack an instructors manual
unknown to us; and (2) their sentences most readers will consider it not to be the for how to read it. That manual should
extended at least twice as long as ours did. sentences most important information. be provided by the sentences structure.
(Professionals tend to use multi-clause If that interpretation is what the writer To solve the number two problem in
sentences about 50 percent of the time.) intended, all is well. But if the writer in- legal writing, become aware of when
We knew we should begin to use some of tended us (e.g.) to give equal weight to the the unit of discourse you are composing
those hard words ourselves; and we tried plaintiffs actions, this sentence would fail is a main clause, or a qualifying clause,
to sound more professional by extending to send the proper reading instructions. or just a phrase. Put the most important
the length of our sentences. The solution would be to give both the de- material in the main clause; and, as of-
Writing those college papers, we quite fendants and the plaintiffs actions equal ten as possible, give that main clause a
naturally relied on our long-trusted sen- structural weightby making them both mark of punctuationperiod, colon, or
tence-writing machine. But our wish to cre- main clauses: semicolonthat will create for it a stress
ate longer sentences caused the machine to position. Sometimes youll find your-
malfunction: Choose a subject; choose a 1b. The plaintiff had sent several no- self moving that main clause to the end.
verb; unravel your complement; end with ticesthree of them in January Sometimes youll find yourself reaching
a periodwait! No! Insert a comma, and aloneabout the necessity of de- for that salt shaker full of colons or that
keep on going. Because for so long begin- laying the shipment. Despite this, pepper shaker full of semicolons.
ning a sentence was the same for us as the defendant persisted in prom- Problem solved.
beginning a main clause, we persisted in ising its customers the inventory I will go into these solutions in greater
beginning our sentences in that old, now would be available as previously detail in the next issue of Litigation. q
unhelpful way. We still do. We had no scheduled.

Published in Litigation, Volume 40, Number 4, Summer 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may 2
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
it. Everything that could go wrong did
go wrong. At 9:30, you make your way
down to the parking lot, through wind
On the Papers and rain. You fight your way through 90

MISCONCEIVING THE
minutes of crosstown traffic and finally
find yourself battling the dark and the el-

W R ITING TASK: THE


ements on Route 95 as you head toward
Connecticut.

TOLL BOOTH SY NDROME


Just before you leave the state of New
York, you see a sign: Toll booth, 1 mile, 40
cents, exact change, left lane. You search
in your pocket for change and find you
have precisely three coinsa dime, a nick-
el, and a quarterjust the right amount.
GEORGE D. GOPEN
You enter the exact change lane. In front
of you is a shining red light, but no bar-
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
rier; to the left of you is the hopper. You
are tired and irritable as you roll down
the window, the wind and rain greeting
you inhospitably. You heave the change
at the hopper. The quarter drops in; the
dime drops in; but the nickel hits the rim
and bounces out. What do you do? Do you
put the car in Park, get out, and grovel
in the gravel for your nickel? No. Do you
put the car in Reverse and switch to an-
Lawyers are educated people. Lawyers makes good sense: How do I know what other lane where a human being can make
are smart people. Lawyers write for a liv- I mean till I see what I say? Naturally, if change for your dollar bill, after which
ing. Why then is so much legal writing a writer believes the thought process has you can return to your original lane? No.
so unnecessarily hard to read? At least been completed before the writing be- You go through the red light. It is rain-
in part, it stems from a misconception of gins, then the writing process becomes ing; it is nearing midnight; there are no
the nature of the writing task. sheer drudgery. But this misconception police in sight; and if you did get caught,
We learn to write in schoolrooms. For of the process of writing is based on a you would be able to show the proof of
a great majority of professionals, even af- deeper misconception of the purpose your good intentions in the gravel. The
ter they have long left those schoolrooms, of writing. This latter misconception can alternatives are just too burdensome. You
writing remains an academic kind of be described in a metaphor I call the toll go through the red light.
taska burden to be dispensed with at booth syndrome. If you do this, I would argue you do
the earliest moment possible. They re- it because you have chosen to ignore the
ceive an assignment; they talk with the fundamental purpose of paying tolls. You
appropriate people; they search through The Toll Booth Syndrome do not think that in order to continue on
the library; they read whatever they need The year is 1980. Picture the following: that road, you must transfer 40 cents of
to read; they organize their thoughts, You are well known in your field. You your accumulated wealth to the state
perhaps in some sort of outline form; and havebeen summoned for three weeks government, with which it will keep the
then, when the thinking has mercifully to New York to consult on an impor- roads in good repair and pay toll booth
come to an end, they write it up. They tant case. Staying with friends in sub- operators. Instead, you rationalize that
reduce it to words. urban Connecticut, you commute by car in order to continue on the road, you must
Wrong from the start. Writing is not into Manhattan at 5:30 a.m. to avoid the be dispossessed of 40 centsandyou have
something that happens after the think- rush hour. On one particular day, you been. It is therefore moral, if perhaps a bit
ing process has ceased. It is a thinking have spent from 6:00 a.m. to 9:30 p.m.in risky, for you to plunge further on into the
process. The English teachers one-liner the office, with nothing to show for Connecticut darkness.

Published in Litigation, Volume 41, Number 1, Fall 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 1
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The same holds true for the writing itself. Or she might be a judge who has in private to ask if it really is necessary
task. Most writers do not care primarily your brief in one hand and an oppos- to make such a carefully constructed
that the intended audience actually re- ing one in the other, balancing them to outline before writing. There were two
ceive their 40 cents worth of communica- weigh their strengths and weaknesses; possible answers the questioner might
tion; they care only that after digesting all or it might be an adversary whoper- find distressing: One was yes; the other
that information and forming all those fectly aware of what it is you were try- was no. Yes was painful to those who
ideas, they now need only dispossess ing to saywill bend over backward to had not made a single outline since grade
themselves of it all onto the paper. That demonstrate that it does not or cannot 12; No was painful for those who had
done, all is done. If a reader complains of say that. Legal writers must write clearly spent 9 percent of their career making
the lack of X later on, the writer can lead and forcefully enough to controlinso- such outlines and then disposing of them
the reader to the hidden spot in the grav- far as that is possiblethe interpreta- so no one would know they had been cre-
el where some traces of X exist, faintly tional acts of all possible readers. The 40 ated. In both cases, the questioners were
gleaming through the grime in which it cents worth of ideas must not be merely wondering if their careers might have
has become embedded. possible to perceive; it must become the blossomed a good deal more had they
For students, the rhetorical act of dominant interpretation that almost known the truth about outlining.
writing is not communication; rather it all readers will be led to perceive. It is My answer to all such questioners: It
is a demonstrationthat work has been insufficient to produce a sentence that is absolutely essential to make a carefully
done. That works in school. There, stu- is merely capable of being interpreted numbered and lettered outline of your
dents are usually rewarded for demon- in the way you want; the sentence will writing if you cannot write without one.
strating that they have done a great deal be sufficient only when it demands that Otherwise, dont bother. No one cares.
of work, have found the right facts, and most readers assent to the interpretation No one is going to give you credit for
have devised a way to get them down you intend to convey. having made the outline if the final prod-
on the page. The teacher will recognize uct was not successful. Over-outlining
the work has been done and will reward can be really debilitating. The rest of the
it with an acceptable grade. Students The legal reader is writing process might then be limited to
tend to assume that the teacher already filling in the missing parts for those out-
knows what thoughts can and should be often partially or lined sentence fragments and eradicating
made out of the facts recorded on the all the numbers and letters. That is the
page. More often than not, they are right wholly hostile. process that produces all those mind-
to assume this. Down deep, students are numbingly dull and pedestrian student
convinced writing is all performance, a papers. Teachers like outlines. Clients
private charade between student and That control of the interpretation like results. q
teacher, with both in on the game. process can be gained by knowing what
In the professional world, it mat- most readers are likely to do with the
ters not how much work the writer has prose you give them. Knowing what
done; it matters only that the reader readers expect to find where in a sen-
actually gets delivery of precisely that tence depends on understanding the
which the writer had intended to send. reader expectations this series of ar-
Communication in that professional ticles has been exploring.
world requires that the 40 cents worth I have room here to explore one fur-
of thought actually be received by the ther issue. I have briefly mentioned the
readernot just that it be jettisoned into process of arranging your thoughts in
the air and onto the page by the writer. an outline before writing. Many of us
For legal writing especially, the reader were taught to do this in grammar school
will often not be anything like a teacher, and high school. After you get your in-
who gives the writer credit for having formation, you make a carefully lettered
done the job. The legal reader is often and numbered outline, from which you
partially or wholly hostile. He might be then generate your prose. Early in my
a senior partner who insists Nothing consulting career, lawyersespecially
gets out of this firm until it is perfection lawyers in their 50swould approach me

Published in Litigation, Volume 41, Number 1, Fall 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 2
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Because the facts remain the same
throughout the four sentences, the in-
structions for interpretation must have
On the Papers been sent by the structures in which the

COMMU NICATING
facts are differently deployed. The same
facts in differing structural locations will

PR EFER ENCE: FR ED
produce differing interpretations.
When two clauses compete with each

A ND HIS DOG
other for attention and emphasis, there
are three dominant structural/syntactical
factors that influence the reader:

1. End placement. Readers tend to


give greater emphasis to the final
GEORGE D. GOPEN
clause because it contains the stress
positionthat moment of closure
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
that tells readers to give additional
emphasis.
2. The main clause (as opposed to
the qualifying clause). Readers
emphasize the main clausea
clause that can stand by itself as
It is insufficient to create a sentence that thumbs down. Here are the stunningly a complete sentencebecause its
is merely capable of being interpreted the consistent results. completeness signals the presence
way you want. The sentence is sufficient of the main thought. A qualifying
only when it leads at least 95 percent of 1a. Although Freds a nice guy, he beats clause has a subject and a verb but
your readers to perceive precisely what his dog. cannot stand by itself as a sentence,
you wanted them to perceive. usually because it begins with a
Let us meet Fred and his dog. We will as- Unanimous or nearly unanimous word like although or that.
sume the dog is nice. We have to figure out thumbs down on Fred. 3. Length. A disparity in length be-
not what we think of Fred, but rather what tween two clauses invokes a dis-
the writer wants us to think of Fred. Here 1b. Although Fred beats his dog, hes a parity of emphasis to be given
is the same information about Fred offered nice guy. by the reader. The longer clause
in four different sentence constructions: usually receives greater attention.
Nearly unanimous thumbs up on Fred. Sometimes the shorter clause can
1a. Although Freds a nice guy, he beats invite emphasis if it acts as a kind
his dog. 1c. Freds a nice guy, but he beats his dog. of punch line.
1b. Although Fred beats his dog, hes a
nice guy. Some up, some down, many hesitat- The consistency of the communal judg-
1c. Freds a nice guy, but he beats his dog. ing to vote, and some demonstrating a ments on Fred and his dog can now be
1d. Fred beats his dog, but hes a nice guy. vacillating hand motion of ambivalence. explained. Because the clauses in each of
Overall, somewhat more negative than the four sentences are of approximately
I have worked through this example positive, but definitely split as a group. equal length, we need only consider the
with more than 350 groups of people. The Some people are split within themselves. effects of emphasis derived from the first
results have been the same in essentially two of the three indicators.
every case. Taking each sentence by it- 1d. Fred beats his dog, but hes a nice
self, I ask the participants to determine guy. 1a. Although Freds a nice guy, he beats
whether the writer wants us to approve his dog.
or disapprove of Fred and to indicate Same varied response as (1c), except the End placement: dog-beating
their decision by a show of thumbs up or overall result is noticeably more positive. Main clause: dog-beating

Published in Litigation, Volume 41, Number 2, Winter 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 1
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Both indicators of emphasis point the in somewhat greater influence than its All three indicators are positive. The
reader to the negative material, thus ex- competitor. sentence translates into Although Fred
plaining why almost all thumbs are down Now let us complicate the matter by beats his dog, he is wonderful, wonderful,
on Fred. introducing the factor of length: wonderful, wonderful! Fred for presi-
dent! By the time the sentence ends, the
1b. Although Fred beats his dog, hes a 1e. Fred is a good husband, a caring fa- dog has disappeared from view.
nice guy. ther, a fine colleague, and an alto- From these experiments, we can de-
End placement: nice guy gether nice guy, even though he rive tactics (not rules) for structuring sen-
Main clause: nice guy beats his dog. tences that have two clauses competing
1f. Even though he beats his dog, Fred for reader attention. Lets say you are a
Both indicators of emphasis are posi- is a good husband, a caring father, a member of Congress and must vote on the
tive, producing mostly thumbs up for Fred. fine colleague, and an altogether expensive and highly controversial MRX
nice guy. plan. With an election coming up, you poll
1c. Freds a nice guy, but he beats his dog. your constituents and find they are split
End placement: dog-beating Audience responses to these are just as 5050 on the issue.
Main clause: nice guy. consistent as those in the previous four You feel you must take into account
examples: (1e) engenders great conster- both of those strong feelings and dem-
The two indicators point in different nation and a good deal of inability to vote onstrate you are open to both points of
directions. This explains the hesitation at all; and (1f ) engenders unanimous or view. Tactic: State your decision clearly
and indecision of certain readers and the nearly unanimous thumbs up. in the main clause; but do not place that
ambivalence of the group as a whole. Some clause at the end. Let the risks attract the
follow one sign, some follow another, and 1e: End placement: dog-beating attention provided by the stress position.
others cannot decide which to follow. In Main clause: nice guy Thus: We should invest in the MRX
general, however, the vote is notably more Length: nice guy plan, even though the risks are high.
negative than positive. Perhaps instead of demonstrating
As we saw with (1c) and (1d), when end ambivalence, you wish, while noting the
1d. Fred beats his dog, but hes a nice guy. placement and the main clause compete risks, to indicate a firm support for the
End placement: nice guy for attention, end placement wins a nar- MRX plan. Tactic: Put the risks in a quali-
Main clause: dog-beating row victory, due to the power of the stress fying clause at the beginning; put your
position. What happens when the influ- opinion into the main clause, and place it
The fact that the emphasis indicators ence of length is added to the influence at the end. Your opinion will seem firm
once again diverge in their instructions of the main clause in that struggle? Does to a majority of your readers.
accounts for another ambivalent response. the combination of length and the main Thus: Even though the risks are high,
But the response to (1d) is consistently clause outweigh the power of the stress we should invest in the MRX plan.
more positive than the response to (1c). position? Or will the stress position main- Do you wish to push harder for the
That suggests that whenever end place- tain a certain dominance no matter what MRX? Tactic: State your opinion in the
ment and the main clause compete with is placed in opposition to it? Neither of main clause, place it at the end, and beef it
each other for attention, slightly more these turns out to be the case. Instead, up with additional length. This will pro-
readers tend to favor the end-placed clause: reading communities respond keenly to duce a sense of urgency for a majority of
The attraction power of the main clause is the turmoil raised by the structural con- your readers.
not quite as strong as the attraction power flict. If, after all that information about Thus: Even though the risks are high,
of the stress position. It is clear that this Fred being a nice guy, he ends up beat- we should draw upon whatever funds are
does not hold for all individuals, for that ing his dog, then something is drastical- available and invest in the MRX plan.
would once again have produced a unani- ly wrong with Fred. He needs help. It is It is insufficient to create a sentence
mous vote. But it is just as clear (from the the turmoil, the conflict, the friction that that is merely capable of being interpreted
consistency of the outcomes) that it does wins the readers attention. the way you want it to be interpreted. If
hold for a community of readers taken as you understand Fred and His Dog, you
a whole. The end placement of a qualify- 1f: End placement: nice guy can manipulate how most readers will
ing clause will not eliminate the influence Main clause: nice guy weigh and balance the conflicting mate-
of an earlier main clause; it only results Length: nice guy rial you hand them in a single sentence. q

Published in Litigation, Volume 41, Number 2, Winter 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 2
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Court held X. X in this case happens
to be a whole qualifying clauseeverything
from that until the end of the sentence.
On the Papers Unfortunately for the reader, the qualify-

IMPORTA NT: AVOID


ing clause contains all the sentences most
important information.

BEGINNING SENTENCES
If we can imagine a readers reading
process in ultra-slow motion, note what

WITH THE COURT


happens when the reader reaches the
word that: The reader has to keep those

HELD TH AT . . .
four initial words in mindsomewhere in
mindall the way to the end of the sentence.
Otherwise, the sentence cannot reach its
full syntactic conclusion. The energy the
GEORGE D. GOPEN
reader uses to do this is energy that should
have been reserved for reading the impor-
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
tant information that follows.
What to do? Demote the main clause to
a qualifying clause; promote the qualify-
ing clause to a main clause. Then the im-
portant information will be located in the
unit to which we naturally pay our greatest
attention.
While this may sound highly technical,
The Court held that . . . . The plaintiff verb but cannot stand by itself as a sen- and probably difficult to accomplish, it is
alleged that . . . . This construction is tenceusually because it starts with a word usually quite a simple revision. In this case,
littered over the history of legal writing. It like although or that. And a phrase has demote The Court held that from main
does a great deal of damage to the readers a beginning and an end but lacks either a clause to qualifying clause by changing it
interpretation process. It usually should be subject or a verb or both. to As the Court held. This allows you to
avoided. Lawyers often tell me they have no The major significance of these dis- get rid of the that. (Think of it as a four-
problem reading such a construction: That tinctions: Readers value the information letter word.) What used to be the qualifying
they have been doing it all their professional in main clauses more than that in qualify- clause, no longer burdened by its beginning
lives. They insist it does not obscure mean- ing clauses. Placing the sentences most im- with that, now becomes the main clause,
ing. They are right in one sense only: Having portant information in qualifying clauses with no further revision required:
become so habituated to it, they do not per- makes it harder for the reader to perceive
ceive the damage it does to them as readers, the authors intended meaning. The same 1b. As the Court held, the defendants
sentence after sentence. This article explains holds true for wasting main clauses on had not complied with the require-
that damage and how to avoid it. unimportant information. Put these two ments established in the original con-
Background: Last summer in these pages, flaws together in one sentencelike one tract in a timely manner.
I explained that there are only three units that begins The Court held that . . .and
of discourse we need to control in order your reader quietly and unknowingly suf- Note the difference in the use of reader
to indicate to readers the various levels fers double damage. energy. When we get to the comma after
of importance they should give our in- held, we can toss away the whole four-
formationthe main clause, the qualify- 1a. The Court held that the defendants word qualifying clause that preceded it
ing clause (my term), and the phrase. See had not complied with the requirements (As the Court held...); in turn, that al-
The Number Two Problem in Legal Writing: established in the original contract in a lows us to summon a fresh here comes
Solved, 40 Litig. 21 (Summer 2014). timely manner. the main clause breath of energy for the
A main clause has both a subject and a new main clause. Our energies are prop-
verb; it can stand by itself as a sentence. A The problem with this sentence is not its erly summoned and efficiently expended.
qualifying clause has both a subject and length but its structure. The main clause is The unimportant material is treated as

Published in Litigation, Volume 41, Number 3, Spring 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 1
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
unimportant; the important material is nominalized word decisionalthough, the story of the Court. When we revised the
read with focused emphasis. according to the author, it was not intend- sentence, that changed:
Sometimes the wasted main clause at ed to be.
the beginning can be demoted all the way To make the actions more immediately 1b. As the Court held, the defendants had
down to the level of a phrase: and more easily perceivable, we need only not complied with the requirements es-
change the nominalized action words into tablished in the original contract in a
2a. The plaintiffs alleged that the defen- verbs: timely manner.
dants had not complied with the require-
ments established in the original con- 3b. The CEO decided to review the Now the subject of the main clause is
tract in a timely manner. matter. the defendants, whose story the sentence
really intended to tell.
The plaintiffs alleged X can be reduced However, if the CEO notices a growing So am I heading in the direction of a new
to a phrase by the elegant replacement of discontent among people who perceive her rule that says never begin a sentence with
the verb alleged with its related nomi- as increasingly tyrannical, she might do a short main clause followed by a much
nalization, allegations: well to opt for the (3a) version, in which the longer that clause? No. I have only one
actions are softened and undercut. The (3b) rule (other than the grammatical rules,
2b. According to the plaintiffs allega- version is not better than (3a); it just does which are ruleswrong-headed though
tions, the defendants had not complied things differently. Your rhetorical needs they sometimes manage to be). That rule
with the requirements established in the should dictate your rhetorical choices. is NO RULES. Any rule you have heard
original contract in a timely manner. So changing (2b) to read According to about producing good writing is wrong at
the plaintiffs allegations unplugs the ac- least some of the time. Some of our most
Nominalizations are often the scourge tion-type energy emitted by the (2a) version, hallowed pieces of writing advice, rigidi-
of legal writingbut not here. In a previous which began The plaintiffs alleged that . . fied into rule-ish demands, are outright
column, I spent a good deal of time warning . . We wanted to undercut the energy on outrages:
about the use of nominalizationsa techni- alleged, sending the verbal, action-type
cal term for nouns related closely to verbs. energy forward to had not complied. Avoid the passive. (Wrong.) (For a dis-
See Ensuring Readers Know What Actions cussion of this, see my column, Why the
Are Happening in Any Sentence, 38 Litig. 2b. According to the plaintiffs allega- Passive Voice Should Be Used and
15 (Winter 2012). Like most things in life, tions, the defendants had not complied AppreciatedNot Avoided, 40 Litig.16
nominalizations should be judged neither with the requirements established in the (Winter 2014).)
good nor bad in and of themselves, but only original contract in a timely manner.
on the basis of the context in which they To make it better, make it shorter.
appear. As I explained there, nominaliza- Here is a good use of nominalizations. (Wrong.)
tions usually do damage when they usurp There is yet a further good achieved by
the action from the verb. both revisions (1b) and (2b). A multi-clause To determine the quality of your sen-
For example: sentence appears to most readers as being tence, read it aloud. (Wrong.)
the story of whoever or whatever shows up
3a. The CEO made a decision to conduct as the subject of the main clause. (For a full- Write the way you speak. (Wrong.)
a review of the matter. er discussion of this, see my column Whose
Story Is This Sentence? Directing Readers When would it be good writing to be-
If the author of this sentence intend- Perceptions of Narrative, 38 Litig. 17 (Spring gin a sentence with The Court held that
ed the italicized words to be its main ac- 2012)). Here again is example (1a): . . .? When held really is the main ac-
tions, the nominalizations make those ac- tion you want to feature. If you are trying
tions harder to identify. The main verb is 1a. The Court held that the defendants to distinguish between the Court merely
wasted on made. The CEO wasnt mak- had not complied with the requirements remarking in dicta and the Court holding,
ing something. To conduct sounds sus- established in the original contract in a then a pair of sentences beginning The
piciously like an important action, even timely manner. Court observed that . . . and However,
though it is a second-class verb form the Court held that . . . would do very
not a main verb, but merely an infinitive. Because the Court is the subject of the well indeed. Context controls meaning. q
It sounds more action-packed than the main clause, the sentence asks to be read as

Published in Litigation, Volume 41, Number 3, Spring 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 2
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
this sentence on first readingwith the
exception of people who already knew so
much about this area of the law that they
On the Papers did not need to read it in the first place.

A MICRO-JOUR NEY
The default value reader expectation:
The moment a grammatical subject ap-

THROUGH A SENTENCE
pears, a reader expects the appropriate
verb to follow almost immediately. If it

OF HOR RORS
takes some time for that verb to arrive,
a substantial part of the readers inter-
pretive energy will be used to retain the
memory of having encountered the sub-
ject. Without the subject in mind, the
reader will not be able to put the verb to
GEORGE D. GOPEN
use. I want to explore here, in slow mo-
tion and great detail, what happens to a
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
reader during this kind of wait. Please be
patient. It is necessarily hard to read why
a sentence is hard to read, even if the ex-
planation is itself written clearly.
We begin with the opening word,
Similarly. How do we expect an English
sentence will unfold? We expect to find
a subject up front, followed immediately
by a verb, and then the unfolding of its
complement. Similarly is not a gram-
I am going to explore a single sentence. would be made only for actual quanti- matical subject. But we have experienced
It was written by one of my legal writ- ties of work completed, transformed initial adverbs many times and know how
ing students at the Harvard Law School the contract into a requirements to store them in mind as we then look for
who later produced a book that won the contract. the subject.
Pulitzer Prize. In other words, he was al- But we do not get the subject. Instead,
ready a smart and accomplished fellow. The underlying structural problem we get in Weaver. Now we want our
He knew what he wanted this sentence here often oppresses legal readers: The subject. We do not want to encounter the
to say. If you told him you were having author has separated his grammatical words a case in which, because we then
trouble reading it, he could unpack it and subject (the qualifying word estimate) know it might be the fourth line down
repack it in five minutes of discussion, from its verb (transformed) by 47 words. before we get the desired subject.
and you would come away understanding (For a fuller discussion of this problem, We need not have feared. The next ar-
his intended meaning. But a sentence is see my earlier article in this series, How rival is that longed-for subject, the D.C.
supposed to do all that work without the to Overburden Your Reader: Separate Your Court of Appeals. Fine. Now we want its
author being present, and on one reading. Subject from Your Verb, Litigation, Vol. verb. We get it: held. That verb is fol-
Take a look at it. 39, No. 3 (Summer 2013), at 14.) If we get lowed by one of our trouble words, that.
that subject and its verb together, the When we see a that, we know to expect
Similarly, in Weaver, the D.C.Court of rest of the revision process falls easily the immediate arrival of yet another sub-
Appeals held that the qualifying word into place. ject-verb duo.
estimate used in conjunction with the The journey through his subject/verb And we get subject 2, the qualifying
stipulations and conditions that the separation, burdensome enough by itself, word estimate. We are already deal-
quantities were to be used to canvass is rendered almost unendurable by the ing with similarly and the D.C. Court
bids and not to be the basis for any seemingly harmless presence of two small of Appeals held that. This is already a
payment by the ultimate consumer of words: and and that. I have never met small handful, but as legal readers, we are
the products and that payments anyone who was capable of understanding used to this kind of verbal chunking. Now

Published in Litigation, Volume 41, Number 4, Summer 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may 1
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
our main need is to meet verb 2 while in a bifurcated sub-unit of a bifurcated We drown.
we still have subject 2 fresh in our mind. sub-unit of a qualifying unit of the main Yes, the subject-verb separation causes
Unfortunately, verb 2 is not what we next clause. We need to know as soon as pos- the central problem; but it is the damage
encounter. Instead we find a qualification sible what this and is connecting. We done to us by the bifurcating and and
of subject 2used in conjunction with see the quotation marks just before and the subject-verb-expecting that repeat-
the stipulations and conditions. . . . The just after the and. Good. We now know ed multiple times that do us in entirely.
handful is growing larger. that the and connects two quoted items. The revision is simplicity itself: Get
This new arrival contains a word that A new expectation sets in: We want subject 2 and verb 2 together. It then be-
causes us just a bit of an extra burden, the two units connected by and to bal- comes clear that the three quoted items
beyond that of our needing to recognize ance each other neatlyjust like stipula- are the three reasons that support the
the words and their meanings. The new tions and conditions did earlier. When conclusion: This contract was trans-
arrival is our second trouble word, and. we experience a phrase like to be used formed into a requirements contract.
And tells us to be prepared to receive a to canvass bids, as readers we weigh
second element that will talk to, and neat- it, hoping its length and depth will be Similarly, in Weaver, the D.C.Court of
ly balance, whatever element appeared counterbalanced by the quoted item that Appeals held that the qualifying word
just before the and. Our new task here comes after the and. This phrase has estimate transformed the contract
is an easy one: The and connects two three accented syllables: to be USED to into a requirements contract because
single, similar words, stipulations and CANvass BIDS. We therefore prepare it was used in conjunction with the
conditions. We can handle twin words for the second quoted item to have three following stipulations and conditions:
like these well enough; but we are now accents, which would make it as easy as (1) that the quantities were to be used
in a bifurcated sub-unit of a qualifying possible to handle the two of them as a to canvass bids; (2) that they were not
unit of the main clause. And all this while unified duo. to be the basis for any payment by the
we are still awaiting the arrival of verb 2. Unfortunately, this second item is not ultimate consumer of the products;
But now we are confronted by a four- so easy to handle: not to be the basis for and (3) that payments would be made
letter word that so often causes major any payment by the ultimate consumer only for actual quantities of work
problemsthat. This that is that 2. of the products. The words not and completed.
That is not offensive here by itself, but basis and payment use up the quota
only by what it promises: the arrival of of three musical beats we were expect- By the way, this is a 77-word revision
another subject-verb duo, the third such ing; but three gets extended all the way of the original 68-word sentence. q
unit in this sentence. Here is where the to sixNOT to be the BASIS for any
reading task becomes seriously challeng- PAYment by the ULTimate conSUMer of
ing. The arrival of subject 3, the quanti- the PROducts. This makes our balancing
ties, makes us generate that unique kind act a very difficult one indeed.
of reading energy that we reserve for the The next two words, our silent assas-
arrival of verbs. We need to be able to fin- sins, defeat us entirelyand that. The
ish this part of the reading task as soon as and adds yet another sub-level of bifur-
possible: Subject > VERB! The problem cation. That 3, even worse, leads us to
is that we are already waiting to experi- expect subject 4 and verb 4, which ar-
ence this kind of closure with the arrival rive on cuepayments would be made.
of verb 2. At this moment, therefore, we Whatever verb-reading energy we had
have to generate the verb energy for verb managed to conserve for the arrival of
3 while somehow continuing to maintain verb 2 must now be expended on verb 4.
a similar kind of verb energy in expecta- And we are now faced with another, in-
tion of the later arrival of verb 2. That is superable problem: Does that 3 qualify
complicatedand burdensome! that 2, which in turn qualifies that 1?
Verb 3werearrives immediately, Or are 2 and 3 parallel with each other?
thank goodness. The moment after this, Or . . . ! We are now using all of our read-
we learn those quantities were to be used er energy to figure out the sentences
to canvass bids; but we then encounter a structure; we have none left with which
most troubling wordand. We are now to contemplate the sentences substance.

Published in Litigation, Volume 41, Number 4, Summer 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may 2
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
language of the intellect. French was the
language of society; Latin was the lan-
guage of professional thought. Those first
On the Papers grammar books were not created from

IR R ATIONA L RULES:
scratch, but were rather translations/
adaptations of Lilys Latin grammar (c.

MINUSCULE MYSTER IES


1500), the most popular contemporary
textbook. Many English grammatical

OF GR A MM A R
rules were therefore crafted for another
language. Therein lies the problem.

DEMYSTIFIED
In Latin, the infinitive was formed not
by adding a separate word, but rather by
adding an ending to the verb stem. Rogo
meant I ask. If you wanted to say to
GEORGE D. GOPEN
ask, the form was rogere. Therefore, if
you were translating Latin for your school
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
assignment, you would be in error to in-
troduce anything between the to and
the ask. The infinitive had to remain
an uninterrupted unit. Hence, the rule
not to split your infinitive.
So why does to fully understand not
defeat comprehension in English? For the
answer, I return to the principle I have
been exploring for more than four years
in these columns: Language functions on
If we were taught grammar at all, we were and turn the ridges of his ears red. All expectation. E.g.: Because readers expect
asked to memorize rules and enjoined not that energy expended on his part, wasted. the action of a sentence to be articulated
to break them. Many of usespecially An infinitive is the form of a verb that by its verb, then our writing becomes eas-
those schooled after the mid-1970s incorporates the word toto do, to go, ier and clearer for them to read if we use
were never taught grammar. Studies to boldly go. The third of these was con- the verb to say what is going on.
had proved there was no connection sidered a sin: If you allowed any word to Once we encounter the word to
between success on grammar tests and intervene between the to and the verb, when we know it will be part of an in-
writing well. In the 1990s, grammar faint- you had split your infinitive. Points de- finitive, what are we expecting will arrive
ly returned; but many of its teachers had ducted. Red ears. To boldly go was a fa- next? We expect the verb that announces
not themselves been educated in its mys- mous split infinitive, part of the opening the action, immediately. To fully under-
teries. We have failed to understand that credits for Star Trek, a well-watched tele- stand is effective English because the
grammar should be approached not as vision show of the mid-1960s: To boldly action being expressed is the sum of the
rules but as toolstools to help readers go where no man has gone before. force of the two words fully and un-
read. In this article, I look at three rules I fail to fully understand what all the derstand taken together. This two-word
that are not founded on reasonthe kind fuss was about. I ask you: Did you notice action immediately follows the to. To
of rules that convinced us the rules were that I just split my infinitiveto fully un- fully understand is an action I try to ac-
in the service not of readers but only of derstand? Even if you did, did it keep you complish many times a day. It is different
English teachers. from understanding my meaning? Why from either fully to understand or to
all this fuss? understand fully. You might have indeed
1. The Split Infinitive The source of the fuss goes all the way felt burdened or annoyed had I written
The kind and learned man who hired me back to the beginning of the 17th century, to fully and without any possible doubt
at Duke University, 30 years ago, was so when the first English grammars were understand, because all those interrup-
offended by the presence of a split infini- produced. English was used for centu- tive words cannot blend together easily
tive that the blood would rush to his head ries before it was generally accepted as a and forcefully to modify understand.

Published in Litigation, Volume 42, Number 1, Fall 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 1
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
So here is my advice: For the next all punctuation marks other than the 1a. A, B, and C
1015 years, never split your infinitive in comma and the period: or
professional prose. Starting around the 1b. A, B and C ?
year 2030, go for itas long as the intrud- I just hate these arcane and nonsensi-
ing word blends seamlessly with the verb cal rules! Most grammar books will tell you,
that follows. Why wait for 2030? Because with great confidence and appropriate
until then, the people in charge of things But for the comma and the period, the solemnity, that both are completely ac-
will be of the generation that had their (unreasonable) rule is different. The com- ceptable. Ridiculous, say I.
knuckles rapped (or at least had points ma and the period always go within the The principle behind all grammatical
deducted) by their teachers when they quotation markif you are writing west of rules, I suggest, should be based on one
youthfully split their infinitives. Once the Atlantic Ocean. They always go outside conceptreadability. Whatever is better
these elders are no longer in power, the the quotation markif you are writing east for the reader ought to be considered the
rule of reason will be free to take over. of the Atlantic Ocean. Extraordinary: Two proper usage.
equally absurd but equally stringent rules, The second comma, in example (1a)
2. The Comma, the Period, and depending on whether your editor lives in above, is often referred to as the Oxford
Quotation Marks New York or London. comma or the serial comma. It helps
This rule is far more outrageous than the Most grammar books offer no expla- readers. The single comma, in example
rule prohibiting split infinitives. When a nation for this. Here is mine. In the 18th (1b) above, always raises a momentary
comma or a period appears next to a quo- century, the people of the American colo- ambiguity. Ambiguities are a waste of a
tation mark, should it be placed inside or nies waged a revolutionary war to free readers energy. If a reader is aware that
outside the quotation mark? themselves from the rule of the British a list is unfolding, the comma after B,
It would be lovely if this question was crown. Having won, they took whatever followed by the and, unambiguously
resolved by the following perfectly rea- small opportunities they could to dif- announces that the third and last mem-
sonable and reader-friendly answer: ferentiate themselves from their former ber of the list, C, will arrive immedi-
authorities. They decided that British ately. But without that Oxford comma,
*If the comma or period is part of what words like colour and honour would the and that follows B might be an-
is being quoted, it goes inside the quo- express a new-found American freedom nouncing either the arrival of the third
tation mark. If it is not part of what is if they were relieved of those unnecessary and final list member or the second half
being quoted, its goes outside. (*An u vowels. Color and honor shrieked of a bipartite second member, B and C.
asterisk indicates a statement consid- with freedom whenever they appeared If (1a) is good for readers and (1b) is bad
ered incorrect.) on a page. for readers, then (1b) should be wrong
I think they did the same kind of thing and (1a) should be right. Given that the
That makes sense. If the whole sen- when they moved the comma and the pe- grammatical pundits offer you the choice,
tence is a quotation, the period should riod from outside to inside the quotation choose the good one.
be part of the sentence and therefore mark. They turned up their collective Punctuation was invented in the fourth
should be placed inside the closing quo- noses at this ridiculous British rule and century CE as an aid to Christian mission-
tation mark. demonstrated that they could create their aries traveling far and wide to introduce
own ridiculous rule if they moved those the Scriptures to the heathens. A confused
Damn the torpedoes; full steam punctuation marks within the sheltering conflation of words that were meant to be
ahead. safety of the quotation mark. They left separated from each other could result in
the sensible rule for question marks and the loss of souls. The dots and squiggles
If only the last word of the sentence quotation marks as it was, because that were added to the holy texts to aid the
requires the quotation marks, then the rule was, well, sensible. It will take an missionaries as training wheels aid the
period should follow the closing quota- international treaty to resolve this puerile beginner bicyclist. The dots and squiggles
tion mark. stubbornness. I do not look for it to hap- worked so well, they were never discarded.
pen during my lifetime. As long as weve got them, they ought to
*I just hate these arcane and nonsensi- continue to benefit readers. q
cal rules. 3. The Oxford Comma
Which of the following is the proper
That indeed is the applicable rule for punctuation for a series?

Published in Litigation, Volume 42, Number 1, Fall 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 2
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
what if next you find R. R? That doesnt
help. And then you find S. By this time, you
have so much new material to deal with,
On the Papers you have to give up the attempt to make

THE PROGR ESS OF


the backward connection. Making sense
of this sentence by itself will be success

THOUGHT: TO MOV E
enough; but your attempt to follow the
writers thought progression has been se-

FORWA R D, LINK
verely compromised.

BACK WA R D
2. The second bad possibility is even
worse. Using sentence example
ABCDEFG, let us say that the author
wants us to continue forward with G;
GEORGE D. GOPEN
but not knowing anything about how
readers link backward, the author
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
begins the new sentence by men-
tioning B. Disaster. The reader, see-
ing B, makes a link backward to the
previous sentences B and is now on
the wrong track forward. Once such
a mistaken connection is made, it is
difficult to undo its damage.
When a writer is in the process of writing, Without those early instructions, bad
no matter how long or short the document things can happen. Readers need to know as soon as pos-
will eventually be, most of the writers at- sible how a new sentence is intended to
tention is focused on the creation of a sin- 1. Imagine you have just finished read- link back to its predecessor. If you tell
gle sentence. Once the sentences contents ing a sentence that contained seven them, explicitly, as soon as possible, their
have been deposited on the page, without major bits of information, represent- train of thought will stay on the tracks you
error, and with some sense of elegance, the ed here as A B C D E F G . intended.
writer can comfortably consider that task To explore the problems and solutions
well accomplished. The same process can The next sentence could connect back- involved with this backward link, let us con-
continue, sentence after sentence. ward in a great variety of ways: sider a sentence from Chief Justice Warrens
For a reader, however, the primary unit majority opinion in the Miranda case:
of thought is not the sentence but rather to any one of the seven individual bits
the paragraph. Readers do not experience of information; The use of physical brutality and vio-
sentences in isolation from one another, to any combination of two or more (AB, lence is not, unfortunately, relegated to
but rather in a flow that begins with the BC, DEF, and so forth); or the past or to any part of the country.
paragraphs opening sentence and contin- to a concept not made explicit by any
ues until the paragraph ends. Without ex- single previous element, but suggested Miranda v. Arizona, 384 U.S. 436.
plicit instructions from the writer on how by a combination of them. There are many linkage possibilities
to link these sentences together, 10 readers for continuing forward from this sentence,
might well come away from the paragraph As the reader, you begin the next sen- even though it contains only 21 words. The
with 10 or more different interpretations. tence, eager to knowneeding to know next sentence could hark back to any one of
It is a crucial part of the writing act to send what this backward connection will be. or any combination of the following terms:
those instructions for logical connection Without it, you will have trouble know-
as soon and as clearly as possible. This ar- ing what to do with the new sentences physical
ticle attends to the instructions that help a contents. But the first bit of information brutality
reader connect a new sentence to the one you encounter is Q. Q? There was no Q in violence
that preceded it. the previous sentence. You move on; but unfortunately

Published in Litigation, Volume 42, Number 2, Winter 2016. 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 1
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
relegated recently in Kings County, New York, the brutally beat, kicked and placed lighted
the past police brutally beat, kicked and placed cigarette butts on the back of a potential
any part of the country lighted cigarette butts on the back of a witness under interrogation for the pur-
potential witness under interrogation for pose of securing a statement incriminat-
Here is the beginning of a number of dif- the purpose of securing a statement in- ing a third party.
ferent sentences that could logically follow criminating a third party.
the sample sentence: Miranda, 384 U.S. at 446.
Miranda, 384 U.S. at 446. This is relatively clear prose. We could
Mental brutality and violence can often He connected backward to both the improve it by making two changes to the
follow, . . . past and any part of the country. The sentence citing the 1961 study: (1) Make it
Such physical brutality has pervaded connection works and is easy to follow be- the story of some policemen, which would
police investigations . . . cause the target words came at the end of make it the backward link (there was no
Equally unfortunate, courts have long the previous sentence. They were the last Commission in the previous sentence); and
ignored . . . thing on the readers mind; and they occupy (2) end the sentence with physical force,
All the way back to the era of the what I call the stress positionthe mo- which makes it easily available as the target
Pilgrims, . . . ment of syntactic closure that invites read- of the next sentences backward link:
Only recently in Kings County, New ers to exert extra emphasis. (For more on
York, the police . . . the stress position, see The Importance of As the Commission on Civil Rights in
Stress: Indicating the Most Important Words 1961 found quite rampant, police often
Or the new sentence might strike out in in a Sentence, 38 Litig, no. 1 (Fall 2011), at 20). obtain confessions by resorting to physi-
a direction not charted by any single word But a new sentence cannot always take cal force.
in the sample sentence: off from where the last sentence ended.
Were that a hard and fast rule of composi- Once we have done that, we note that
To date, there has been no outraged pub- tion, writers would never be able to spend the only new information in this sentence
lic outcry demanding . . . more than one sentence on a given story. is the citation of the 1961 report. Why waste
The new sentence might need to continue a whole sentence on that? The solution: Just
Any of these are possible and intelligible. the story that was being told by its prede- cite the report. The resulting paragraph:
If the new sentence begins with some- cessor. Because a sentence tends to be read
thing not appropriately connectable, read- as the story of whoever or whatever was In a series of cases decided by this Court
ers are left to their own devices to create a the grammatical subject of its main clause, long after these studies, the police re-
linkageone that may or may not be what that previous subject is an equally viable sorted to physical brutalitybeating,
the writer had in mind. How would you stay and readable candidate for the new sen- hanging, whippingand to sustained
on track if the new sentence began with tences backward link. and protracted questioning incommuni-
The presence of an attorney . . .? Here is our example again, expanded to cado in order to extort confessions.
But even worse than not knowing what include the two sentences that preceded it: (Report of the Commission on Civil
the link should be is to have the new sen- Rights, 1961.) The use of physical brutal-
tence begin with something not intended to In a series of cases decided by this Court ity and violence is not, unfortunately, rel-
be the link. Readers will make that linkage long after these studies, the police re- egated to the past or to any part of the
with the first piece of information capable sorted to physical brutalitybeating, country. Only recently in Kings County,
of it. Because readers are going to make hanging, whippingand to sustained New York, the police brutally beat,
that connection whether you like it or not, and protracted questioning incommu- kicked and placed lighted cigarette butts
give them the correct backward link as nicado in order to extort confessions. on the back of a potential witness under
near to the beginning of every sentence as The Commission on Civil Rights in 1961 interrogation for the purpose of securing
is possible. found much evidence to indicate that a statement incriminating a third party.
Here is what Chief Justice Warren some policemen still resort to physical
wrote: force to obtain confessions. The use of The backward-linking connections are
physical brutality and violence is not, made up front targeting either the whose
The use of physical brutality and violence unfortunately, relegated to the past or story or the stress position of the previous
is not, unfortunately, relegated to the past to any part of the country. Only recently sentences. Linking backward moves your
or to any part of the country. Only in Kings County, New York, the police reader forwards. Thought flows. q

Published in Litigation, Volume 42, Number 2, Winter 2016. 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 2
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.