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Strategic Legal Persuasion: Writing to Win (Part 3) Michelle J. Ouellette, Q.C.

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1 Strategic Legal Persuasion: Writing to Win (Part 3) Michelle J. Ouellette, Q.C.

2 “You will have written exceptionally well if, by skillful arrangement of your words, you have made an ordinary one seem original” - Horace, 65-8 BC - Horace, 65-8 BC “What is written without effort is in general read without pleasure.” - Samuel Johnson, “The difference between the right word and the almost right word is the difference between lightning and a lightning bug.” - Mark Twain, “He who wants to persuade should put his trust not in the right argument but in the right words.” - Joseph Conrad, Joseph Conrad, “Often Thought, but Never so Well Expressed”

3 Principles of Legal Writing (According to D. Robert White, The Official Lawyer’s Handbook, Simon & Schuster, 1983) Never use one word where ten will do Never use one word where ten will do Never use a small word where a big one will do suffice Never use a small word where a big one will do suffice Never use a simple statement where one of substantially greater complexity will achieve comparable goals Never use a simple statement where one of substantially greater complexity will achieve comparable goals Never use English where Latin, mutatis mutandis, will do Never use English where Latin, mutatis mutandis, will do Qualify virtually everything Qualify virtually everything Do not be embarrassed about repeating yourself. Do not be embarrassed about repeating yourself. Do not be embarrassed about repeating yourself. Do not be embarrassed about repeating yourself. Worry about the difference between “which” and “that”[!] Worry about the difference between “which” and “that”[!] In pleadings and briefs, that which is defensible should be stated. That which is indefensible, but which you wish were true, should merely be suggested In pleadings and briefs, that which is defensible should be stated. That which is indefensible, but which you wish were true, should merely be suggested Never refer to your opponent’s “arguments”; he only makes “assertions”, and his assertions are always “bald” Never refer to your opponent’s “arguments”; he only makes “assertions”, and his assertions are always “bald” If a lay person can read a document from beginning to end without falling asleep, it needs work If a lay person can read a document from beginning to end without falling asleep, it needs work

4 No person shall prune, cut, carry away, pull up, dig, fell, bore, chop, saw, chip, pick, move, sever, climb, molest, take, break, deface, destroy, set fire to, burn, scorch, carve, paint, mark, or in any manner interfere with, tamper, mutilate, misuse, disturb or damage any tree, shrub, plant, grass, flower, or part thereof, nor shall any person permit any chemical, whether solid, fluid, or gaseous, to seep, drip, drain, or be emptied, sprayed, dusted, or injected upon, about or into any tree, shrub, plant, grass, flower, or part thereof, except when specifically authorized by competent authority.

5 “Archaic Canadian Language” Henceforth Henceforth Heretofore Heretofore Herewith Herewith Whereas Whereas Whilst Whilst Witnesseth Witnesseth Aforesaid Aforesaid Aforementioned Aforementioned Beforementioned Beforementioned Hereby Hereby Herein Herein Hereinafter Hereinafter Herewith Herewith The said The said Inter alia Inter alia Ipso facto Ipso facto Mutatis mutandis Mutatis mutandis Ex post facto Ex post facto

6 Clear Writing….. Is more persuasive Is more persuasive Is compelling reading Is compelling reading Improves the public image of lawyers Improves the public image of lawyers Makes (most) clients happy Makes (most) clients happy Demonstrates professionalism and clear thinking Demonstrates professionalism and clear thinking Enhances credibility Enhances credibility

7 Favorite Things Lawyers Do In Their Writing: Make silly spelling mistakes Make silly spelling mistakes Use improper punctuation – or no punctuation Use improper punctuation – or no punctuation Clutter their written material with verbiage Clutter their written material with verbiage Write with awkward sentence structures, double negatives, inappropriate reflexive pronouns Write with awkward sentence structures, double negatives, inappropriate reflexive pronouns Ramble, repeat and bury issues/essential facts Ramble, repeat and bury issues/essential facts Use bad grammar generally Use bad grammar generally Use gender-biased language Use gender-biased language Use “archaic Canadian language” Use “archaic Canadian language”

8 The effect…? Maybe we’re not interested in what we’re writing about – why should the Court be? Maybe we’re not interested in what we’re writing about – why should the Court be? Perhaps we’ve not paid attention to the details – don’t we want the Court to? Perhaps we’ve not paid attention to the details – don’t we want the Court to? Perhaps the whole file is as disorganized as our writing – should the Court have to figure it out? Perhaps the whole file is as disorganized as our writing – should the Court have to figure it out? Bottom line – we negatively impact our own credibility….and the client’s position Bottom line – we negatively impact our own credibility….and the client’s position

9 Favorite Verbiage Think about what the following phrases add to your writing: Think about what the following phrases add to your writing: Consideration should be given to… Consideration should be given to… It is respectfully submitted that… It is respectfully submitted that… It would appear that… It would appear that… Further to your letter of… Further to your letter of… It is our respectful opinion that… It is our respectful opinion that… With respect to… With respect to… It might be said that… It might be said that… In the event that… In the event that… Until such time as… Until such time as… In the time period… In the time period… Needless to say… Needless to say… The field of… The field of… Due to the fact that… Due to the fact that… At this point in time… At this point in time… It is worth remembering that… It is worth remembering that… It is important to note that… It is important to note that…

10 Stating the Obvious “True” facts “True” facts “Patently” obvious “Patently” obvious “Somewhat” hesitant “Somewhat” hesitant Does one: Does one: “Enter into an agreement” or agree? “Enter into an agreement” or agree? “Give consideration to” or consider? “Give consideration to” or consider? “Complete an application” or apply? “Complete an application” or apply? “Make a recommendation” or recommend? “Make a recommendation” or recommend?

11 Favorite Gender Neutral Language “ Dear Sirs and Madams…” Commonly Used: Chairman, Chairwoman Chairman, Chairwoman Salesman, Saleswoman Salesman, Saleswoman Workman Workman Policeman Policeman Fireman Fireman Mailman Mailman Mankind Mankind The man on the street The man on the street Actress Actress Testatrix, Executrix Testatrix, Executrix What’s wrong with: Chair, Chairperson, Moderator Chair, Chairperson, Moderator Salesperson, Salesclerk Salesperson, Salesclerk Worker Worker Police Officer Police Officer Fire Fighter Fire Fighter Mail Carrier Mail Carrier Humanity Humanity The average person The average person Actor Actor Testator, Executor Testator, Executor Adapted from Peg James and Raquel Goncalves, “Modern Writing for Lawyers”, the Continuing Legal Education Society of British Columbia

12 Beware of the Spell-Checker English spelling can seam like a maize, and put won strait into a hays, butt now never fear, the spell-checker is hear, and its sew well-deserving of prays. Butt let awl pore spellers bee ware of the checker and ewes it with care, lest yore hair bee turned into a hare. - Anonymous

13 Favorite Ideas to Help with Spelling Prefixes do not change the spelling of a word Prefixes do not change the spelling of a word “un-necessary”, “dis-satisfied” “un-necessary”, “dis-satisfied” Knowing the meaning of the prefix helps Knowing the meaning of the prefix helps for (not or against) v. fore (before or in front); forbid v. foresee for (not or against) v. fore (before or in front); forbid v. foresee inter (between) v. intra (within); interstate v. intrastate inter (between) v. intra (within); interstate v. intrastate Mnemonics, rhymes and rules Mnemonics, rhymes and rules the “i before e” rhyme (don’t forget the “extras”) the “i before e” rhyme (don’t forget the “extras”) the “final consonant” rule (preference v. preferring, inference v. inferred) Emphasis on the last syllable – double the last consonant; otherwise, probably not. the “final consonant” rule (preference v. preferring, inference v. inferred) Emphasis on the last syllable – double the last consonant; otherwise, probably not. The “picnic” or hard “c” rule – add a “k” to use an “e”, “i” or “y” suffix The “picnic” or hard “c” rule – add a “k” to use an “e”, “i” or “y” suffix Think about the root of the word and its meaning Think about the root of the word and its meaning Log – “word, speak” – Logic, Eulogy Log – “word, speak” – Logic, Eulogy String or Strict – “bind, draw tight” – stringent, stricture String or Strict – “bind, draw tight” – stringent, stricture

14 Favorite Confused Words Jibe/Jive – to correspond or agree/a dance Jibe/Jive – to correspond or agree/a dance Compliment/Complement – expression of praise/that which completes Compliment/Complement – expression of praise/that which completes Affect/Effect – to influence (as in feelings)/to bring about (v.) or the result (n.) Affect/Effect – to influence (as in feelings)/to bring about (v.) or the result (n.) Ingenious/Ingenuous – crafty/naive Ingenious/Ingenuous – crafty/naive Allude/Elude – to refer to something indirectly/to escape or avoid Allude/Elude – to refer to something indirectly/to escape or avoid Aural/Oral – pertaining to the ear/spoken Aural/Oral – pertaining to the ear/spoken Emigrate/Immigrate – leave one country/settle in another Emigrate/Immigrate – leave one country/settle in another Biannually/Biennially – twice a year/every two years Biannually/Biennially – twice a year/every two years Eminent/Imminent – distinguished/impending Eminent/Imminent – distinguished/impending Averse/Adverse –in opposition/unfavorable Averse/Adverse –in opposition/unfavorable

15 Confused words (continued) Farther/Further – at a greater distance/to a greater extent Farther/Further – at a greater distance/to a greater extent Amoral/Immoral – outside morality/offside of morality Amoral/Immoral – outside morality/offside of morality Accept/Except – to receive/to exclude Accept/Except – to receive/to exclude Incredulous/Incredible – skeptical/not believable Incredulous/Incredible – skeptical/not believable Eulogy/Elegy – statement of praise/song mourning Eulogy/Elegy – statement of praise/song mourning Flaunt/Flout –to show off/ to go against Flaunt/Flout –to show off/ to go against Uninterested/Disinterested – bored/impartial Uninterested/Disinterested – bored/impartial Principal/Principle – first in rank/law, code or basis for position Principal/Principle – first in rank/law, code or basis for position Tack/Tact – a course or direction/intuitive perception Tack/Tact – a course or direction/intuitive perception Tortious/Tortuous/Torturous – wrongful/twisted or complicated/full of pain Tortious/Tortuous/Torturous – wrongful/twisted or complicated/full of pain

16 Good Use of Punctuation Can… Link or separate ideas Link or separate ideas Make a statement in and of itself Make a statement in and of itself Develop the rhythm of your paragraph or sentence Develop the rhythm of your paragraph or sentence Provide emphasis Provide emphasis Lead the reader where you want him or her to go Lead the reader where you want him or her to go

17 Favorite Example of the Effect of Punctuation Dear Jack, I want a man who knows what love is all about. You are generous, kind, thoughtful. People who are not like you admit to being useless and inferior. You have ruined me for other men. I yearn for you. I have no feelings whatsoever when we are apart. I can be forever happy – will you let me be yours? Jill

18 Dear Jack, I want a man who knows what love is. All about you are generous, kind, thoughtful people, who are not like you. Admit to being useless and inferior. You have ruined me. For other men I yearn! For you I have no feelings whatsoever. When we are apart I can be forever happy. Will you let me be? Yours,Jill Taken from: Truss, Lynne “Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation” Gotham Books, 2003

19 Favorite Misused Punctuation Marks – Apostrophe Two main functions: contraction and possession. Two main functions: contraction and possession. Contractions are straightforward and don’t usually cause problems but watch for they are – they’re v. there or their. Contractions are straightforward and don’t usually cause problems but watch for they are – they’re v. there or their. Possession is more complicated. Possession is more complicated. Nouns not ending in s, add ’s to the end (brother’s keeper). Nouns not ending in s, add ’s to the end (brother’s keeper). Nouns ending in s, when a new syllable is created, add ’s (boss’s agenda, bus’s schedule, judge’s ruling. Nouns ending in s, when a new syllable is created, add ’s (boss’s agenda, bus’s schedule, judge’s ruling. Nouns ending in s where the possessive does not add a new syllable, add only an apostrophe to the end (lawyers’ fees) Nouns ending in s where the possessive does not add a new syllable, add only an apostrophe to the end (lawyers’ fees) Words with sibilant endings, add only the apostrophe where ’s would be awkward (conscience’ sake, Jesus’ name v. suitcase’s) Words with sibilant endings, add only the apostrophe where ’s would be awkward (conscience’ sake, Jesus’ name v. suitcase’s) Possessive pronouns take no apostrophe ( hers, his, ours, theirs, yours and its) Possessive pronouns take no apostrophe ( hers, his, ours, theirs, yours and its) Before writing it’s, ask yourself if you mean to say it is (same with you’re) Before writing it’s, ask yourself if you mean to say it is (same with you’re) The apostrophe is never used to form a plural (with one tiny exception – “p’s and q’s” “do’s and don’ts”) The apostrophe is never used to form a plural (with one tiny exception – “p’s and q’s” “do’s and don’ts”)

20 Favorite Misused Punctuation Marks – Comma Lawyers tend to use either too many commas or not enough Lawyers tend to use either too many commas or not enough Most common uses for commas: Most common uses for commas: For lists – if it can be replaced by the word and or or For lists – if it can be replaced by the word and or or Joining two sentences using a conjunction (but not with nevertheless, however and therefore) – She tried her best to stop, but the road was icy and the two cars collided Joining two sentences using a conjunction (but not with nevertheless, however and therefore) – She tried her best to stop, but the road was icy and the two cars collided Commas in pairs mark both sides of an interruption to a sentence or a piece of additional information Commas in pairs mark both sides of an interruption to a sentence or a piece of additional information Defining clauses do not need paired commas. (The children who had been vaccinated were healthier than those who had not. Compare: Sandra, who had never been ill, was vaccinated against her mother’s wishes. ) Defining clauses do not need paired commas. (The children who had been vaccinated were healthier than those who had not. Compare: Sandra, who had never been ill, was vaccinated against her mother’s wishes. ) Be alert to potential ambiguity: Be alert to potential ambiguity: Don’t guess, use a timer or a watch v. Don’t guess; use a timer or watch Don’t guess, use a timer or a watch v. Don’t guess; use a timer or watch

21 Graham Greene’s Last Comma “I, Graham Greene, grant permission to Norman Sherry, my authorized biographer, excluding any other, to quote from my copyright material published or unpublished.”,,,,,,,,

22 Favorite Misused Punctuation Marks – Colon Colons introduce a second component of a sentence that exemplifies, restates, elaborates, undermines, explains or balances the first part. (This much is clear, Watson: it was the baying of an enormous hound.) Colons introduce a second component of a sentence that exemplifies, restates, elaborates, undermines, explains or balances the first part. (This much is clear, Watson: it was the baying of an enormous hound.) Colons also introduce lists, subtitles, dialogue and long quotations. Colons also introduce lists, subtitles, dialogue and long quotations.

23 Favorite Misused Punctuation Marks – Semi-Colon Joins two related sentences with no conjunction Joins two related sentences with no conjunction A period is always an alternative A period is always an alternative “Linking” words - however, nevertheless, consequently and hence - require a semi- colon “Linking” words - however, nevertheless, consequently and hence - require a semi- colon

24 Favorite Grammatical Challenges Pesky Pronouns I or me – Mom was wrong about using “me” I or me – Mom was wrong about using “me” George and I/me drafted the brief. George and I/me drafted the brief. Sam gave the brief to George and I/me. Sam gave the brief to George and I/me. Sam worked with George and I/me for years. Sam worked with George and I/me for years. What happens when you remove the other person? Who or Whom – If it sounds silly, it likely is Who or Whom – If it sounds silly, it likely is That’s the man who/whom the police chased. That’s the man who/whom the police chased. The people who/whom did this must be held responsible. The people who/whom did this must be held responsible. To who/whom will you issue the Subpoena? To who/whom will you issue the Subpoena? Restate using the “m” test: he/him or they/them (The police chased “him” – so “whom” works)

25 Favorite Grammatical Challenges Relative Pronouns Which or That Which or That The car, which/that had a fresh paint job, was covered in mud. The car, which/that had a fresh paint job, was covered in mud. The car which/that was involved in the accident was wrecked. The car which/that was involved in the accident was wrecked. Use “which” in a non-restrictive (non-essential or expendable) clause; set off with commas. Use “that” in a restrictive (essential or non-expendable) clause; do not set off with commas. Note: “Which” never refers to people – use who or whom.

26 Favorite Grammatical Challenges Intensive/Reflexive Pronouns Intensive pronouns add emphasis: He himself took the blame. Intensive pronouns add emphasis: He himself took the blame. Reflexive pronouns reflect the action of the verb onto the subject: He shot himself in the leg. He reminded himself about the appointment. NOT: Reflexive pronouns reflect the action of the verb onto the subject: He shot himself in the leg. He reminded himself about the appointment. NOT: Thank you for allowing my colleague and myself to speak to this matter. (My colleague and me) Thank you for allowing my colleague and myself to speak to this matter. (My colleague and me) Only my husband and myself will be attending your party. (My husband and I) Only my husband and myself will be attending your party. (My husband and I) Your wife and yourself are both invited. (Your wife and you) Your wife and yourself are both invited. (Your wife and you)

27 Favorite Grammatical Challenges Disagreeable Verbs Verbs with compound subjects – verb agrees with subject: Verbs with compound subjects – verb agrees with subject: Either the three witnesses or the Plaintiff is/are mistaken. (Plaintiff – singular - closest to the verb - “is” works.) Either the three witnesses or the Plaintiff is/are mistaken. (Plaintiff – singular - closest to the verb - “is” works.) Neither the physician nor the nurse was/were aware of the emergency. (Both are singular - “was” works.) Neither the physician nor the nurse was/were aware of the emergency. (Both are singular - “was” works.) The Council members and the Mayor has/have been working long hours. (Both are plural - “have” works.) The Council members and the Mayor has/have been working long hours. (Both are plural - “have” works.) Either the Mayor or the Council members has/have been working long hours. (Members – plural - closest to the verb – “have” works.) Either the Mayor or the Council members has/have been working long hours. (Members – plural - closest to the verb – “have” works.) Neither the Defendant’s well-written brief nor the limitation period hanging over our heads has/have deterred us. (Both singular – “has” works.) Neither the Defendant’s well-written brief nor the limitation period hanging over our heads has/have deterred us. (Both singular – “has” works.) Every morning at 8, either the twins or the toddler with multiple medical problems need/needs some attention. (Toddler – singular – closest to the verb – “needs” works.) Every morning at 8, either the twins or the toddler with multiple medical problems need/needs some attention. (Toddler – singular – closest to the verb – “needs” works.)

28 Favorite Grammatical Challenges Agreement with Pronouns Certain pronouns are always singular Certain pronouns are always singular One, no one, anyone, everyone, someone, anybody, somebody, nobody, everybody, each, either and neither One, no one, anyone, everyone, someone, anybody, somebody, nobody, everybody, each, either and neither Each of the witnesses is/are going to testify. Each of the witnesses is/are going to testify. His, her and it are correct pronoun choices for use with “everyone” or “anyone”. His, her and it are correct pronoun choices for use with “everyone” or “anyone”. Every Defendant was advised to contact their/his or her lawyer. (Or, “Defendants were advised to contact their lawyers.”) Every Defendant was advised to contact their/his or her lawyer. (Or, “Defendants were advised to contact their lawyers.”) Anyone with sense knows not to leave their/his or her house unlocked. (Or, sensible people know…) Anyone with sense knows not to leave their/his or her house unlocked. (Or, sensible people know…)

29 Other Favorites “Is where” “Is where” Hearsay “is where” the witness gives an out of court statement from someone not present. A lawsuit “is where” someone sues another individual Hearsay “is where” the witness gives an out of court statement from someone not present. A lawsuit “is where” someone sues another individual “Per” “Per” We are forwarding a copy of the contract, as per your request. We are forwarding a copy of the contract, as per your request. Singular problems Singular problems Media/Medium Media/Medium Data/Datum Data/Datum Criteria/Criterion Criteria/Criterion Phenomena/Phenomenon Phenomena/Phenomenon Memoranda/Memorandum Memoranda/Memorandum Favorite made-up word & phrase Favorite made-up word & phrase “Irregardless” “Irregardless” “In regards to…” “In regards to…”

30 Do’s Do’s Analyze your writing retrospectively Analyze your writing retrospectively How has it changed over time? How has it changed over time? What particular strengths and, more importantly, weaknesses do you see that emerge frequently in your writing What particular strengths and, more importantly, weaknesses do you see that emerge frequently in your writing Work strategically on those weaknesses Work strategically on those weaknesses Write in stages Write in stages Create an outline and return to it frequently Create an outline and return to it frequently Sit down and spew out a first draft, just to get something on paper to work with Sit down and spew out a first draft, just to get something on paper to work with Don’t worry about the rules Don’t worry about the rules Don’t stop to look up details or make sure your facts are accurate or a word is spelled correctly – come back to it later Don’t stop to look up details or make sure your facts are accurate or a word is spelled correctly – come back to it later Revise in stages Revise in stages Content, organization, individual components, design, and mechanics (grammar, punctuation, spelling) Content, organization, individual components, design, and mechanics (grammar, punctuation, spelling) Be brutal Be brutal If a word or phrase is just “extra”, if it isn’t clear, if it doesn't contribute, take it out If a word or phrase is just “extra”, if it isn’t clear, if it doesn't contribute, take it out Strive for reader-oriented writing Strive for reader-oriented writing Trial Courts will look for different things than Appellate Courts – are the issues clear? Other lawyers have their own clients to account to Your clients need meaningful advice and information Read Read You will learn from both legal and non- legal writing; just recognize the different purposes of each Reading improves your vocabulary and your writing Read your own writing out loud; you will often pick up different habits or mistakes than you will by reading silently Have a respected colleague read your work when you think it is close to finished Get a good dictionary, thesaurus, grammar and punctuation guide Get a good dictionary, thesaurus, grammar and punctuation guide Keep them by your desk, and use them Turn off your spell checker at times

31 Don’ts Don’t over explain or overstate in an attempt to make sure the court “gets it” Don’t over explain or overstate in an attempt to make sure the court “gets it” If your facts are fairly stated, your language is clear and your argument logical, the court will get it (although it may not agree with you) If your facts are fairly stated, your language is clear and your argument logical, the court will get it (although it may not agree with you) Don’t get too comfortable with one form of organization in your writing Don’t get too comfortable with one form of organization in your writing Different stories read better using different patterns of organization Different stories read better using different patterns of organization Use examples for illustration, use chronological or spatial descriptions, compare and contrast scenarios, use analogy, similes, metaphors Use examples for illustration, use chronological or spatial descriptions, compare and contrast scenarios, use analogy, similes, metaphors The big picture is important but don’t forget the details The big picture is important but don’t forget the details Chosen for impact, organized clearly and presented in a readable style, they enhance the persuasive value of your writing Chosen for impact, organized clearly and presented in a readable style, they enhance the persuasive value of your writing Readers want to know the details as long as they are not tedious Readers want to know the details as long as they are not tedious Don’t get caught up in trying to fill up your page limit with words Don’t get caught up in trying to fill up your page limit with words Getting as much content as possible down on paper isn’t likely to help The look “or design” of the document is important for readability Font, spacing, case, line length and justification, headings, white space and highlighting are all aides to easy reading Don’t fall back automatically on familiar old language habits Don’t fall back automatically on familiar old language habits Get rid of verbiage Use direct language Use active voice most of the time Keep your sentences reasonably short, but vary the length to avoid sounding robotic or juvenile

32 Bibliography Batko, Ann When Bad Grammar Happens to Good People (Castle Books, 2005) Hacker, Diana A Canadian Writer’s Reference (Nelson Canada, 1989) James, Peg Clear Writing – A Contemporary Approach (Saskatchewan Legal Education Society, 1998) James, Peg Winning Ways – The Art of Persuasive Legal Writing (Saskatchewan Legal Education Society, 1999) James, Peg & Goncalves, Raquel Modern Writing for Lawyers (The Continuing Legal Education Society of British Columbia, 1994) Truss, Lynne Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation (Gotham Books, 2003) Vos Savant, Marilyn The Art of Spelling: The Madness and the Method (W.W. Norton & Company, 2000) Many of the examples in this presentation are borrowed gratefully from the foregoing titles.


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