Tcl - Eye of the Beholder - January 2006 - the Scrivener: Modern Legal Writing

• Publication year: 2006
• Pages: 91
• Citation: Vol. 35 No. 1 Pg. 91

35 Colo.Law. 91 Colorado Lawyer 2006.

2006, January, Pg. 91. TCL - Eye of the Beholder - January 2006 - The Scrivener: Modern Legal Writing

The Colorado Lawyer
January 2006
Vol. 35, No. 1 [Page 91]

Departments and More
The Scrivener: Modern Legal Writing

Eye of the Beholder

by K.K. DuVivier
(c) 2006 K.K. DuVivier

K.K. DuVivier is an Assistant Professor and Director of the Lawyering Process Program at the University of Denver Sturm College of Law.

DO YOU HAVE QUESTIONS ABOUT LEGAL WRITING?

K.K. DuVivier will be happy to address them through the Scrivener column. Send your questions to kkduvivier@law.du.edu or call her at (303) 871-6281

For more than fifteen years now, I have been in the business of teaching legal writing. In fact, as the director of a legal writing program, I also have been in the business of teaching others to teach legal writing. The responsibility weighs heavily on my shoulders: I know that a lawyer's stock and trade are words and that what we teach is fundamental for our students' success

Over the years, I have heard complaints that no one can teach others to write well because the perception of what constitutes good writing is in the eye of the beholder. To a certain degree, this is true. Some readers like Hemingway or Twain, while others prefer Dickens or Nabokov.

Fortunately, some universals about legal audiences help make the task of defining good legal writing easier than defining good fiction writing. Legal writing must be utilitarian, so the emphasis should be on the message rather than on the writing itself. Consequently, to avoid distracting or turning off readers, my students must concentrate as much on what they should not write as on what they actually do write.

On the mechanical level, I teach my students to avoid typos and obvious grammatical errors that will spark audience skepticism about how rigorous they have been in their analysis and proofing. I also teach my students to avoid splitting infinitives, ending sentences with prepositions, and starting sentences with conjunctions, because these forms are distracting to some readers even if they are grammatically correct.

Similarly, some readers have been conditioned to respond negatively to certain style choices. It is technically not incorrect to use the passive voice, the pronoun "he" for a generic individual, or legalese and Latin phrases, yet these choices may cause readers to focus more on style than content. Numerous style books alert writers that these choices raise concerns for readers even if there is no universal consensus that writers should avoid them.

In contrast, legal writing textbooks present wide discrepancies as to how to address broader questions about section and paragraph organization. To address these inconsistencies, I created a survey to determine whether any of these textbook choices are especially distracting for legal audiences. Please help by going to http://www.surveymonkey.com/s.asp?u=104991488234 and voting for the samples you prefer.

Completing a survey takes time, but I urge you to participate by providing the valuable information I am seeking. I have been writing this column for...