Ever Hear of a Well-Claused Brief?

AuthorC. Edward Good
PositionC. 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).
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
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.
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
By C. Edward Good
llustration: iStockPhoto

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