Tagged: writing

· Written by

Avoiding bad page breaks

In general, typographers try to avoid ending a page with a short fragment of a paragraph or starting a page with the last small part of a paragraph. These are called widows and orphans. They are bad because they look poor and make the document harder to read.

This is not a problem that you should really worry about in legal writing. Most legal documents are written in Word, which has automatic functions dealing with how paragraphs are split. These generally produce an acceptable result and tribunals expect functional documents, not beautiful ones.

There are, however, two situations where manually tweaking can help just enough to make it worth doing.

The first is when quoting legislation. To Word a series of sections in a statute looks like a sequence of short paragraphs, so it is happy to split them over a page break. This is undesirable. To a reader, the series of sections is one paragraph, which they want to see as a whole. Indeed, splitting the legislation over two pages is likely to create more problems than any other type of page break. Legislation is something you often need to read carefully and more than once. Having to flip between pages makes this harder. Even if there is no real choice but to go over two pages, it is worth trying to make the break at some sensible point.

The second situation is where the content around the break produces an unintentionally confusing or humorous result.

For example, if you are representing Mr Jones you might write ‘Mr Smith then said that Mr Jones stole £5,000 and that was an act of misconduct.’ But an unfortunate page break might mean that you appear to start a new paragraph with ‘Mr Jones stole £5,000 and…’ Even if this is unlikely to cause real confusion, it is worth avoiding for appearances sake.

To fix these problems, just manually insert a page break in a more sensible place or rewrite the problematic sentence.

Obviously, these sorts of manual adjustments should be the last thing you do before finalising your document. Otherwise, subsequent changes are likely to shift the page breaks and disrupt all your careful work.

· Written by

Bad writing

A sign on a churchyard gate, seen on a walk at the weekend, reads:

Please be aware of rabbit damage to the grass to the left of the church door.

This has nothing whatever to do with employment tribunal practice. It’s just rather a perfect specimen of a particular kind of bad writing. I stared at the notice in some puzzlement for several seconds (why do I care about rabbit damage to the grass? is it some kind of an attraction? or is it supposed to be my fault? what am I supposed to do about it?) before it dawned on me that what the writer was trying to say was simply ‘Mind you don’t fall down the rabbit holes.’

I think this sort of thing is brought on by self-consciousness. Things people would be perfectly able to say plainly and simply face-to-face cause them hand-wringing anxiety when they realise that what they write is going to be displayed on a gate and read by every passing walker – or put in a bundle and read by a tribunal. Is it formal enough to write ”Don’t” on a public notice? Is it somehow rude to speak of rabbit holes? Or ambiguous – perhaps they’ll think I mean holes in the rabbits?

The same thing happens with writing people know a tribunal is going to end up reading: they feel tribunal proceedings are important and formal, and that means you have to find longer words and more oblique ways saying things than you normally would.

But you don’t. If you catch yourself struggling for formality in this way, just relax. It’s much better to write what you mean as simply and directly as you would say it aloud.

· Written by

Conclusions – at the beginning or the end

The format of a lot of advocacy, both written and oral, is to propose a conclusion and provide evidence or explanation to support that conclusion.

So, for example, you might write:

Ms Jones was unfairly dismissed. Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.

Here, the conclusion is that Ms Jones was unfairly dismissed. The explanation is the detail relating to the shortcomings of Mr Smith’s investigation.

In the example above, the conclusion comes first and then the explanation follows. It could equally be written with the explanation first.

Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account. These failures mean that Ms Jones’ dismissal was unfair.

Whether you should lead with the conclusion or the support for it will depend on the situation. Sometimes it will be best to set out what you are going to try to prove, so that the tribunal can see the point of what you are saying. Other times, it will be best to prepare the ground by putting the evidence first. Or your conclusion may not make sense until some other matters are explained.

Quite often, it will just not matter.

Do avoid, however, trying to put a conclusion in the middle of your argument.

Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Ms Jones’ dismissal was therefore unfair. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.

This is just confusing. The conclusion gets lost in a muddle of other points. It also become difficult to see what the CCTV point is about. Is it more evidence of a bad investigation? Or is it a new, and separate point?

· Written by

I refute ‘refute’

The phrase ‘I refute’ has started to show up a lot in submissions and witness statements. People use it to mean ‘I deny such and such a thing.’

This is a bad idea. ‘Refute’ is one of those language fault-lines, similar to ‘disinterested’ vs ‘uninterested’ and whether you should ever split an infinitive. While it is common to use it to mean ‘I deny’, many people think it can only properly be used to mean ‘I disprove’.

This is the difference between saying ‘Such and such has been asserted, but I have proved that it must be false’ and ‘So and so says this happened, but I disagree.’

Personally, I am with the Old Guard on this one. But even if you are not, I suggest avoiding using ‘refute’ in this way. Firstly, there is the risk of confusion about what you mean, which is always undesirable. Secondly, the tribunal is quite likely to disagree with you and so may have a flicker of irritation at what they regard as a mistake.

Finally, saying ‘I refute this’ when you mean ‘This is not true’ means that you are using an obscure term in preference to a common one that means the same thing. This is never a good idea and will make your writing harder to read and less compelling.

· Written by

Some Editing Techniques

  • Sleep on it. The problem with editing something you’ve just written is that you are too close to it. You will tend to see what you expect to, rather than what is actually there. Similarly, you are less likely to spot structural problems on a document you have just written. Once a little time has passed, you can come to it fresh.
  • Print it out. Editing on screen is something many people find difficult. Most people find it easier to see typos and other problems on paper.
  • Use a monospaced font. A monospaced font is one, like Courier, where all the characters occupied the same amount of horisontal space, i.e. like a typewriter or a computer terminal. They are not suitable for finished work, because they look ugly. But some people find it easier to spot mistakes in a monospaced font.
  • Give it to someone else. A second opinion is often useful. Someone who does not know the detail of your case is more likely to spot gaps in your argument. And a fresh pair of eyes is more likely to spot mistakes.
  • Read it aloud. This is likely to be embarrassing, but is often worth doing anyway. Reading aloud will slow you down, making it easier to spot problems. Also, reading aloud will often show up stylistic problems that are harder to spot when reading.

All of these tips are just suggestions. Use what you find useful and ignore the rest.

If you have any tips of your own, please do share them in the comments.

· Written by

Rewriting as rethinking, presenting, line-editing and nit-picking

In Is this the best you can do? we emphasised the important of rewriting and editing.

It’s easy to say that rewriting is important, but harder to explain how to do it. It’s easy to say ‘Get the words right’, but hard to explain what the right words are or how you find them. Over the next couple of weeks, we’ll be trying to give some helpful guidance.

A good starting point is to recognise that rewriting covers a wide range of different tasks.

Rethinking

Lots of us do a lot of our thinking about cases by writing about them. So rewriting is an excellent time to rethink. On reflection, does your argument make sense? Have you missed something out? Does the witness statement cover all the information it needs to?

Presenting

Once you are confident that you are saying the right things, you can consider whether you are presenting them most effectively. Are you dealing with things the right way and in the right order? Is there a way of making your argument more persuasive?

Line-editing

This is the sentence by sentence work. It means looking at each sentence, each paragraph, and asking ‘Is there a better way of putting this?’ Better, in this context, means shorter, simpler and more direct.

Nit-picking

Finally, you check your spelling, punctuation and grammer. Very few people get this absolutely right all the time, but it is worth working at.

· Written by

Is this the best you can do?

Winston Lord was an aide to Henry Kissinger during the Nixon administration. Once, after Lord had written a draft report, Kissinger asked “Is this the best you can do?” Disheartened, Lord took the report away and redrafted it. Again Kissinger sent it back, saying “Are you sure this is the best you can do?”

He submitted another eight drafts, getting exactly the same reaction each time. Finally, he sent in a ninth. Kissinger called him into his office and asked again, “Is this the best that you can do?”

Lord, by this stage, was more than a little frustrated. He replied “Henry, I’ve beaten my brains out – this is the ninth draft. I know it’s the best I can do: I can’t possibly improve one more word.”

Kissinger looked up from his desk, “In that case,” he said, “now I’ll read it.”

Kissinger sets a bad example for management, but a good example for writing.

Moving complicated ideas from one head to another is hard work. Someone always has to sweat and struggle over it. If you don’t do the hard work when you write, you are leaving it to your reader. The problem is that your reader may not bother.

Interviewer: How much rewriting do you do?
Hemingway: It depends. I rewrote the ending of Farewell to Arms, the last page of it, 39 times before I was satisfied.
Interviewer: Was there some technical problem there? What was it that had stumped you?
Hemingway: Getting the words right.

· Written by

Gender-neutral language

I’ve just read the best advice I’ve ever seen on this subject in Bryan A Garner’s book The Elements of Legal Style (2nd ed., OUP 2002, p.207). It’s worth quoting at some length:

Gender-neutral language isn’t about political correctness; it’s about credibility. Regardless of how you may feel about the old “rule” that the masculine he includes the feminine she – whether you detest it or you like it – you’ll need to handle the English language with some care to have credibility with a wide range of readers.

This isn’t an easy task. On the one hand [some] readers …. will think you’re crazy if you write he/she, s/he, or (s)he. They’ll know you’re crazy if you write – as one book author has – s/he/it. On the other hand, [readers of a different sort] will think you’re a troglodyte if you use he to refer to readers generally – as if the feminine were the unstated exception swept into the masculine rule of our language.

Is there no way to win over your readers, then?

Yes, there is. It takes some skill and a lot of effort. With those two things, you’ll be able to produce a style that never induces readers to consider your personal biases. If your point is that you want to induce this reaction, then you’re rebuffing some of your readers – something you may willingly do unless you have a client whose money and perhaps even freedom are on the line. If you’re trying to persuade someone on a point unrelated to sexist language, then the issue shouldn’t even arise.

Garner goes on to demonstrate various specific techniques: weeding out pronouns (e.g. ‘a claimant in this situation should do this or that’ instead of ‘if a claimant is in this situation, he should do this or that’); pluralising (‘if claimants are in this situation, they should do this or that’); using the 2nd person and imperative voice (‘if you are in this situation, do this or that’); and several others.

But his key insight is that – if you are writing on someone else’s behalf, and seeking to persuade – it doesn’t matter whether the feminists or the troglodytes are right. What matters is that if you side visibly with either, you’ll risk annoying someone. The only way to be reasonably sure not to annoy any reader is to make the issue disappear from sight.

· Written by

Not ‘Not Unfair’

The opposite of ‘unfair’ is ‘fair’. Not ‘not unfair’.

So write “The Respondent has not shown a fair reason for the dismissal”, rather than “The Respondent has not shown a not unfair reason for dismissal”.

Double negatives aren’t necessarily sinful, but they should not be used without care.

· Written by

Placeholders

Often, while writing, you will leave gaps to fill in later.

It is useful to have a standard bit of text, such as ‘xxx’ to use as a placeholder. Every time you leave a gap, use a placeholder to mark it. Then you can use the ‘find’ or search function to quickly locate the gaps.

This has two useful functions. Firstly, you can quickly find out what you have left to do. Secondly, when you think you are finished, you can check that there is nothing left undone.