By William Domnarski. He practices civil and criminal law in Southern California and is the author of four books, including Swimming in Deep Water, a collection of short essays about the legal profession.
We’ve all wanted to do it. We’ve all wanted to flag phrases or sentences in our writing. Most of us may know we should resist the wiles of the exclamation point, which we want to believe will let the reader hear us cry out or speak in strong or sudden emotion (Webster’s first definition of exclaim), but it’s hard.
Don’t do it. Don’t give in. The exclamation point is the nuclear option that writers must resist, at least if they want to come across as fair, balanced, and probative. The point of the popular Seinfeld episode in which Elaine, a book editor, couldn’t stop using the exclamation point was to show that she was just shy of unhinged, without good judgment or balance. It’s a revealing mark of punctuation. For lawyers, the exclamation point is the equivalent of barking at judges, shouting, or gesticulating wildly to highlight an argument – all of which should be avoided. Judges are rarely impressed with such antics in court, so they will hardly be impressed when reading the prose versions of them. There’s no “heat of the moment” defense in the writing process.
As part of our ongoing language war with the British, we may disagree about how to label this bit of punctuation: They prefer to call it a “mark,” while Americans like to call it a “point.” But we agree it should be used sparingly everywhere – and rarely if at all in formal writing – to show strong emotion, surprise, or disbelief. The Chicago Manual of Style recommends limiting it to marking “an outcry or an emphatic or ironical comment.”
The desire to emphasize in writing briefs sometimes leads lawyers to the exclamation point’s illegitimate cousins, such as ALL CAPS, bold, underlining, or a l t e r n a t i v e spacing. But using the first three of those reflects rank amateurishness and finds no support in the rules of language. The fourth is just nutty.
The objective of a brief is to persuade – coolly and objectively. There might be exceptional instances when an exclamation point could work, but those who attempt to use it swim in treacherous waters. Emotion, or what we might generally call “attitude,” should be avoided. Really, no one cares how the lawyer feels about the case. Imagine the consequences if that were the standard for a successful pleading or argument.
The fact that judges sometimes use exclamation points in their writing does not make it more acceptable for lawyers to use them. Judicial opinions serve a different function from briefs, and a display of personality actually can make an opinion more effective. However, judges too should proceed with caution. Supreme Court Justice Antonin Scalia stands as an object lesson; he has increasingly used the exclamation point to drip some of the acid of derision and mockery onto his dissents, as in, “What a good idea!” and “How wonderfully convenient!” Scalia has now done it so often that we could use the punctuation in his dissents as a warning for how cranky, irritated, or angry we may be tempted to sound in our own briefs.
English is a great language, and the proper use of it will always be sufficient to emphasize what needs to be stressed. To be as effective as possible, we just have to keep to our objectives in emphasizing particular points and let go of the emotion. We don’t want to read (or worse yet, have our clients read) about ourselves in the Federal Supplement – as one lawyer recently did – that “regrettably for plaintiff, the use of multiple exclamation points, all caps, and bolded text is no substitution for citation to binding legal precedent.” (Rosell v. Kelliher, 468 F. Supp. 2d 39, 48 n.13 (D.D.C. 2006).)We are most likely to persuade when we coolly make the most of our rich language to make our points, rather than just emote. For good or ill, law is about the head, not the heart.
Equitable and Gender-Neutral Language in Legal Writing
By Eunice Park
As legal writers-whether our goal is to persuade, establish parameters, or inform-we want our audience to focus on substance, not style or the lack thereof. We do not want the language itself to impede the content, or awkward writing to mangle meaning. We also do not want to hit unintended notes. Instead, we want our language to be clear and direct. We want it to flow and be gender neutral.
Language that may distract, annoy, or possibly inflame the reader is language that any practitioner representing a client, and writing with a specific objective, should avoid at all times. Sexist language is one example, even if the gender bias in the language is inadvertent. Though the masculine pronoun traditionally has been the default, many people now consider gender-biased language outdated or offensive. At best, the reader may deem a writer using gender-biased language oblivious; at worst, such language may give the reader the impression that the writer is sexist. And a reader who feels ruffled by a writer’s style or language probably will be less receptive to the content.
A clear and direct writing style creates a “halo effect” that enhances persuasiveness, credibility, and impact, as Bryan A. Garner, editor-in-chief of Black’s Law Dictionary, noted in May in the ABA Journal. He wrote: “[G]rammar, spelling and punctuation are some of the first things an attentive reader notices. You see those things before you can assemble the meaning of paragraphs or the structure of arguments.”
Gender-biased language can cast the same kind of shadow over the writer’s purpose. So it behooves the practitioner to avoid the risk that readers will take exception to a gender-biased style and view the content with a dour or even irate eye. Instead, a legal writer should strive to write in a gender-neutral manner that lets the audience focus on the purpose of the writing.
Writers should not, however, flag their gender neutrality with self-conscious language. This simply creates another form of awkwardness that detracts from effective communication. Alternating between the masculine pronouns he, him, and himself and the feminine pronouns she, her, and herself can seem contrived and may raise confusion as to whether the writer has begun referring to a new actor of the other gender. As Richard C. Wydick notes in Plain English for Lawyers, “If you are careless, you may perform a sex change on somebody in the middle of a paragraph.”
Similarly, legal writers sometimes attempt to reflect gender neutrality by pairing the pronouns and writing “he or she” or “his or her,” which can sound cumbersome and still exclude people who prefer gender-neutral pronouns. A second option-to merge pronouns, as in s/he or he/she-Garner sees as “ugly, distracting, and often unpronounceable.” A third tool for avoiding gender-specific pronouns is the passive voice, but it creates vagueness and wordiness that writers should generally avoid. For example, “He breached the contract” clumsily becomes “The contract was breached.” Some writers even attempt to use gender-neutral pronouns, which encompass not only people who identify as male or female but also transgender individuals. Examples include ee, herim, and hiser. Progressive though they may be, these nonspecific pronouns are still avante-garde to most people and are likely to distract and startle. They also may be perceived as malapropos gender activism and could alienate readers.
So what are legal writers to do, if they want to disassociate themselves from outdated pronoun usage yet avoid sounding convoluted and awkward? Here are three ways a writer can gracefully maintain gender neutrality:
- Substitute the pronoun with an article or repeat the antecedent noun. Delete the pronoun and replace it with an article: “The homeowner’s shack is not entitled to the same protection as his house” becomes “The homeowner’s shack is not entitled to the same protection as the house.” Alternatively, delete the pronoun and repeat the earlier noun: “The homeowner’s shack is not entitled to the same protection as the homeowner’s house.”
- Use “who” in lieu of the personal pronoun. This works particularly well when the sentence involves a conditional. “If a homeowner views his shack as part of the curtilage, he can demand a warrant for its search” becomes “A homeowner who views the shack as part of the curtilage can demand a warrant for its search.”
- Pluralize the pronouns. Pluralizing allows you to avoid choosing a gender. “The homeowner cannot expect his shack to be entitled to the same protection as his house” becomes “Homeowners cannot expect their shack to be entitled to the same protection as their house.” Pluralizing, however, can muddy meaning and weaken the sentence’s impact by multiplying a single precise subject into many. So use this technique sparingly.
Be Equitable, Be Effective Legal writing that avoids either overt or implicit sexism allows the reader to focus on substance. Skirting gender-specific pronouns in a manner invisible to the reader is the best approach. Practitioners who do not take a moment to be thoughtful about avoiding masculine pronoun traditions may be doing themselves-and their clients-a disservice.
Legal writing that does not distract or offend either male or female readers allows its true purpose to stay in the forefront of the reader’s mind, unclouded by social assumptions—conscious or otherwise. Not only will the writing more effectively persuade, establish parameters, or inform, but the writer will contribute to the growth of a nonsexist, more equitable society, both within the legal profession and in general.
Legal Research and Writing
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