Writer’s Workshop: Write as if the Reader Will Be a Human Being

BY STEPHEN J. RICE

The Netflix show Ozark concludes this year with a season that Netflix is releasing in two blocks of episodes: one block was released in early 2022, and the second block came later. The other day my wife and I finished the first block. Ozark is an outstanding show that has taken its place in our “golden-age-of-TV,” so we were naturally eager to know: when will the second block of episodes be released?

For the answer, I somewhat inartfully asked Siri (the iPhone’s virtual assistant): “When is Ozark coming out?” Siri answered literally, as one would expect a computer to do: “Ozark was released in 2017.” Obviously this was not the answer I was seeking.

And so I switched to Google’s assistant. Answer: “Ozark will return for its final episodes on Friday, April 29 on Netflix.” Google understood the question like most humans would have done.

One of my favorite legal maxims is “words have meaning by the company that they keep.” (You like your fancy canons? Then noscitur a sociis.) The company that a word keeps can be the words around it, or more broadly the circumstances in which their meaning exists. (E.g.: “I did it:” Is there a dead man on the ground, or a new car in the driveway?) Siri was too literal-minded about the question I asked, and it supplied an answer that we would expect from a computer. Google’s assistant responded like a human being.

WHY THIS ANECDOTE?

Because it relates to how attorneys write. Aspects of standard “attorney writing” are Siri-esque, in that the prose is often too literal. “This is a feature and not a bug,” you might be thinking. Stephen J. Rice is an Assistant State’s While it can sometimes be a feature, it is quite often a bug. Let me give you a pedestrian examAttorney in ple. You’re drafting a motion to compel the Civil Di- after failing to work out a compromise vision of the Lake County State’s Attorney’s with your opposing counsel. Quite commonly, the prose will look like this: On March 5, 2022, counsel for the Office. He plaintiff sent the defendant’s counwas the sel an email asking when discovery 2019-2020 President of the Lake County Bar Association. would be tendered. On March 15, 2022, defendant’s counsel responded that he needed more time. On

March 17, 2022, counsel for the plaintiff wrote that he would give defendant’s counsel until March 23, 2022, to tender discovery. On March 24, 2022, counsel for the defendant emailed that “we stand on our objections and will produce nothing more.” On

March 25, 2022, the parties had a status call before this Court and informed the Court that this motion would be forthcoming. The Court gave counsel for the plaintiff until April 5, 2022, to file the motion. (Are you mentally exhausted yet? Did you even bother to read that block quote?) Remember: your reader—the judge, or maybe her clerk—loves motions to compel. After all, we all studied law to participate in such things, right?! So anything you can do to make such motions even remotely more digestible will be to your advantage. And so, compare:

A few annotations about the changes: (1) The first date written above contains the year. That is perhaps unnecessary but still sensible, particularly because a reviewing court may read this many years after the fact. But after the first date, no other dates need to contain the year: it is plain from the context that this is an unbroken series of dates that are proximate to each other. Google’s assistant would understand that. (If your judge is Siri, the year is the least of your problems.) (2) “Plaintiff” and “defendant” are shorthand for

“counsel for the plaintiff” or “defendant’s counsel.”

The legal reader will understand who’s doing what without you spelling it out explicitly. Again, Google’s assistant would understand! (3) Formatting: Many attorneys write as if their word processor only has the functionality of a typewriter. A typewriter could not bold or italicize words (some typewriters could underline, from whence the practice of underlining case titles came, I suspect). A typewriter could not automatically number paragraphs or insert formatted bullet points.

Your word processor, of course, can do all of these things! Note how perhaps the clearest, best change that I made above is not the textual tweaking, but rather the formatting. Particularly when you’re dealing with a chronology, as above, some simple formatting makes the point both come alive and be easily digestible to your reader. Any attorney reading this column can execute the formatting above, even if you are extremely tech-challenged otherwise.

Below is a more complex formatting example, which involved the timeline for a statute-of-limitations defense I asserted:

Ponder briefly what the prose version of the information above would look like. In prose, the information would be both considerably more verbose and less clear—a legal-writing double-whammy.

You might be thinking: “Man are you picking every nit here, Rice!” And, “I just need to get these stupid motions on file!”

My motion-to-compel example may not strike you as, well, compelling. But do not be misled into thinking that this lesson applies only to procedural motions. The same lesson applies to everything you write, right up to your brief for the U.S. Supreme Court, if you ever get there. All courts, from the traffic court to the SCOTUS, are inundated with things to read. The lawyer who picks a few nits for the sake of clarity manages to slightly unburden a drowning reader, who is absolutely awash in text. (You know who else is awash in text? That person you are about to next email!)

The burden on you of altering your writing style—be it writing less pedantically or incorporating some simple formatting—is low. The greatest hurdle is simply habit, and admittedly changing a habit is never easy. Once you do, though, the effort goes to almost nil, and the benefits accrue throughout time.

I’ve provided just one example, but legal writing is often too literal in countless other ways. Here’s just one other example: “The plaintiff had five (5) days to respond to the defendant’s five-thousand ($5,000.00) settlement offer.” Even Siri doesn’t need the unnecessary number-redundancy, or the zero cents.

Write with the assumption that a sentient human being will read your prose. As even Google’s assistant know, words do in fact have meaning by the company that they keep.

• March 5, 2022: Plaintiff emailed the defendant, asking when discovery would be tendered. • March 15: Defendant responded, asking for more time. • March 17: Plaintiff emailed March 23 as an extension. • March 24: Defendant emailed that “we stand on our objections and will produce nothing more.” • March 25: At the status call with the Court, Court gave plaintiff until April 5 to file this motion. On March 5, 2022, counsel for the plaintiff sent the defendant’s counsel an email asking when discovery would be tendered. On March 15, 2022, defendant’s counsel responded that he needed more time. On March 17, 2022, counsel for the plaintiff wrote that he would give defendant’s counsel until March 23, 2022, to tender discovery. On March 24, 2022, counsel for the defendant emailed that “we stand on our objections and will produce nothing more.” On March 25, 2022, the parties had a status call before this Court and informed the Court that this motion would be forthcoming. The Court gave counsel for the plaintiff until April 5, 2022, to file the motion. ------- | ------------------------------------------------ | --------------------| -------Feb. 22, 2016

Motion to

Suppress

Filed Feb. 22, 2018 Expiration of statute of limitation Apr.. 19, 2018 Complaint filed (Doc# 1)