Factor 2: Verb Surge Powering up this factor: 720 verbs that top brief-writers use more often—and another 90 that they use less often. The verbs fall into three patterns.
TOP BRIEF-WRITERS ARE MORE LIKELY TO . . .
TABLE 6
Punchy Words
Use vivid, conversational words like “afield,” “array,” “beforehand,” “bulwark,” “chance,” “core,” “gap,” “signs,” and “track.” Start sentences with crisp openers like “But,” “Few,” “Let,” and “Only.” Use elegant phrases like “and thus to,” “far more than,” “in turn,” “let alone,” “need not,” “nor did the,” “the same way,” and “to do so.”
Punchy Sentence Openers
TOP BRIEF-WRITERS ARE MORE LIKELY TO . . .
RANDOM BRIEF-WRITERS ARE MORE LIKELY TO . . .
TABLE 4
Punchy Phrases
Length Quality Use vivid verbs like
Use vague verbs like “indicate.”
“alter,” “erodes,” “falter,” “hoodwink,” “override,” “pinpoints,” “refutes,” and “stymies.”
Factor 4: Punchiness and Pizzazz Like all professional writing, legal writing can be spare and con- cise, yet flat and dull. To that end, we’ve identified another 428 terms—loosely de- fined as “punchy”—that you’re more likely to see in the top brief- writers’ work. What unites these 428 terms? Language you’d read in elegant essays or hear in compelling speech. See Table 6 above. Factor 5: Lawyered Down I was especially curious to see how “legalese” fared. It’s easy to lament. It’s harder to define. And it’s avoided more in theory than in practice. We did find meaningful differences in use rates for 165 terms that I’ll divide into two categories: pure legalese, as in “hereto- fore,” on the one hand, and “normal” words and phrases—like “regarding” or “pursuant to”—that many lawyers and judges sim- ply love too much, on the other. Factor 6: A Slight Modification Bans on adjectives and adverbs are as popular as they are unwork- able. The adjective “disguised” matters in “she used a disguised voice,” just as the adverb “rarely” is key to “courts rarely require.” That said, we did identify 100 modifiers that the best writers use less often than average—and another 100 that they use more often. You want “quality” modifiers, so to speak. See Table 8 on the next page. TABLE 7 RANDOM BRIEF-WRITERS ARE MORE LIKELY TO . . . Pure Legalese Use language like “aforementioned,” “foregoing reasons,” “forthwith,” “herein,” and “instant case.” Lawyerisms Use language like “contingent upon,” “i.e.,” “namely,” “prior to,” “proximity,” “pursuant to,” “slippery slope,” “to the extent (that),” and “with respect to.”
Diction Use familiar verbs like “expect,” “mimics,” “signaled,” and “try.”
Use bureaucratic or pretentious verbs like “anticipate,” “effectuate,” and “impacting.”
Factor 3: Passive-Aggressive Rates of the passive voice itself do not differentiate the two sets very well. On the other hand, many of those who decry the pas- sive voice can’t really define it, and I’ve learned that, like the phrase “short and simple,” “passive voice” is more a feeling the reader has than the product of linguistic analysis. Some passive constructions are as popular with top brief- writers as they are with the rest of us: “achieved by,” “undermined by,” and “represented by,” to name a few. Yet others are much less common in the great-briefs set, as you’ll see below. Because the real issue with the passive voice is that it makes it harder to see what’s happening, I include over- used nominalizations in this factor, too. All told, this factor includes 177 cases in which the better brief- writers get active.
TOP BRIEF-WRITERS ARE MORE LIKELY TO . . .
RANDOM BRIEF-WRITERS ARE MORE LIKELY TO . . . Use passive constructions when the focus should be on the actor: “employed by,” “relied upon by,” “caused by,” “permitted by,” “noted by,” and “produced by.” Use nominalizations rather than active verbs, like “achievement,” “alteration,” “compilation,” and “modification.”
TABLE 5
Passive Constructions
Nominalizations Use active verbs like “achieves,” “alters,” “compiles,” and “modifies.”
Published in Litigation, Volume 46, Number 4, Summer 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may 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. 4
Made with FlippingBook - professional solution for displaying marketing and sales documents online