Ever Hear of a Well-Claused Brief?

• Author: C. Edward Good
• Position: C. Edward Good serves as writer-in-residence at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. He also provides on-site training programs in effective writing to corporations, law firms, and government agencies. You may contact Ed at cedwardgood@hotmail.com or 240-GRAMMAR (240-472-6627).
• Pages: 43-46

Published in Landslide® magazine, Volume 9, Number 4, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2017 by the American Bar Association. Reproduced with permission. All rights reserved. This

information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

N o, but you have heard of a well-phrased brief.

Many legal writers use way too many clauses and, for some reason, eschew

phrases. In this article, we’ll look at the art of clause-cutting. Writers who learn

the trick will improve their writing style as they seek to achieve the Strunk and

White goals of “omit[ting] needless words” and making “every word tell.”1

Clauses vs. Phrases

Clauses

When we write, we don’t add words one by one. Instead, we manipulate chunks of

words. We call these multiword groups either clauses or phrases. The sole distinguishing

feature between the two is the conjugated verb. If a group of words has a conjugated

verb in it, it’s a clause. If it doesn’t, it’s a phrase. As simple as that.

The clause constitutes the big cannon of the language, the structure capable of

carrying the most throw-weight. But way too many legal writers roll out the canon

of the clause, light the fuse, stand back, and BOOM ... out comes a ping-pong

ball. They use the big clunky clause to say something quite simple. They don’t

omit needless words. They don’t make every word tell.

Phrases

A phrase, on the other hand, has no conjugated verb in it. A few examples

include prepositional (“a government of the people, by the people, and for

the people shall not perish from this earth”), innitive (“to boldly go where

no man has gone before”2), present participial (“The other man, carrying a

package, jumped aboard the car, but seemed unsteady as if about to fall.”3),

and past participial (“An Act of Congress is a statute enacted by the United

States Congress.”4).

Clause-Starters: That vs. Which

Various words in the English language start clauses. For present pur-

poses, we’ll focus on two of the relative pronouns, words that start

adjective clauses (that, which, who, whom, whose).

Most writers don’t understand the differences between a that clause and

a which clause. Some might ip a coin: heads that, tails which. Others might

use the sounds-best approach, usually opting for which as the more intelligent-

sounding word. But from now on, readers of this article will use the correct

approach, using that when they mean that and which when they mean which.

There is, after all, a big difference.

To esh out the differences between these two words, we turn to ... drum

roll, please ... the Cow Pie-Chart Analysis (be careful how you hyphenate

that expression). Let’s suppose you own a cattle ranch. A raging storm

strikes in the dead of night: lightning ... strong winds ... hail. The next

morning, your ranch manager—a noted grammarian—comes up

to the big house, knocks on the door, and says one of two things:

1. The cows that slept in the barn survived the storm.

2. The cows, which slept in the barn, survived the storm.

Ever Hear of a

Well-Claused

Brief?

By C. Edward Good

llustration: iStockPhoto