The Overworked Sentence

• Publication year: 2020
• Author: By Howard Posner

The Overworked Sentence

By Howard Posner

Howard Posner is a certified appellate law specialist in Los Angeles.

Do you know what the single greatest cause of bad writing is?

Neither do I, but if you're making a "Single Greatest Causes" list, the overworked sentence has to be somewhere near the top. Sentences, like people, are mishaps waiting to happen when they're asked to do too much.

A case in point is the literary subgenre known as the "question presented," in which counsel describe the legal issue they want a court to decide, or a court identifies what it thinks the issue is. A staple of appellate briefs, it's traditionally posed as a question, which makes some sense. But that tradition involves posing it in a single sentence — because, I suppose, we equate "question" with "a sentence worded so as to elicit information" — even if it means cramming factual background and qualifying phrases into subordinate clauses as if stuffing an uncooperative octopus into a sack.

And courts can be just as bad at it as the lawyers who argue before them. A panel of the Ninth Circuit wrestled with a question it certified to the Washington Supreme Court in T-Mobile USA Inc. v. Selective Ins. Co. of America (2018) 908 F.3d 581, and the best it could come up with was:

"Under Washington law, is an insurer bound by representations made by its authorized agent in a certificate of insurance with respect to a party's status as an additional insured under a policy issued by the insurer, when the certificate includes language disclaiming its authority and ability to expand coverage?"

I suppose there's a chance you understood this sentence on a first reading without realizing at some point that you'd lost the point and would have to double back to find it. If so, I commend your powers of concentration, but we both know you're the kind of person no one likes and you never get invited to parties. I had to read it a few times, which I did only because I have a professional interest in bad writing, not because I need to know about insurance law in Washington, where I'm neither admitted nor insured.

To be fair, the Ninth Circuit accompanied the question with an opinion setting out the facts and explaining why it was asking the question, so the Washington Supreme Court's team of crack cryptographers would not have to decipher it in a vacuum. But you want to avoid writing sentences like it unless you like being sniggered at.

The sentence is atrocious for some of the usual reasons legal writing...