The Essential Outline

Writers create outlines for two main reasons: 1) outlining allows a writer to focus on listing thoughts at the lowest organizational level and on the quasi-inductive creation of categories, and 2) outlining allows a writer to focus on the highest level of organization and on the quasi-deductive elaboration of progressively lower levels. The first reason is only heuristic, and other devices may substitute; the second reason is essential. Lawyers don't usually share nonprofessionals' phobia of outlines, as they've built complex outlines in law school, where creating a personal course outline is part of the study ritual. Yet surprisingly many lawyers don't use outlines for complex appellate briefs, while some rely on outlines too much. Characteristic symptoms reflect insufficient outlining, others, overreliance on outlines, and knowing these consequences provides another perspective for evaluating a ghostwriter.

Headings serve as categories for segregating text, but devising logically exclusive headings usually requires focusing on them with and without the accompanying text. Lacking an outline the writer's ad hoc headings won't be mutually exclusive. Burdened by overlapping headings, legal writers who don't outline repeat content. Repetitiveness is the worst effect of forgoing an outline.

A brief should be organized around precise and evocative headings, which serve as signposts in the document's body and as summary in the table of contents; the second major problem linked to lack of outline is poor relatedness between headings and text. Lower level headings should cohere with the headings above and the text beneath and be parallel to other headings at the same level. A longer brief won't cohere without initial planning and subsequent adjustment, both best accomplished in an outline.

One overuse of outlines treats them as forms: transitions between sections are ignored. When a document sounds like an outline, the author probably seldom actually wrote, only outlined and transposed authoritative paraphrases or quotes. Since we accomplish much of our thinking in trying to express it, the overoutlined brief often underanalyzes.

The last form of overuse of outlines is when the author thinks of the headings exclusively in relation to the outline, not in relation to the text beneath the headings. Such an outline will be organized according to some predigested formal scheme, which doesn't make best use of headings. If a cause of action has three elements, the writer might organize the brief around each of them. He achieves logical tightness and mutual exclusivity in the outline, but he isn't telling the judge anything new. Headings should carry valuable information, not legal formulas the judge already knows. Facts should be woven through the headings, so they tell the judge what's most important in your argument, not what an argument of the kind must perforce accomplish.

These flaws are useful checkpoints, regardless of whether outlining problems caused them, but outlining problems account for their frequency.

Appraising “Strunk and White”

Strunk & White's ("Elements of Style") fiftieth anniversary caught linguist Geoffrey K. Pullum's wrath. (See http://tinyurl.com/dhc2sh) Pullum isn't entirely fair in his criticisms, often because of his distaste for the authors' stating their advice absolutely. Pointing to the literal impossibility of omitting all modifiers, Pullum derides "use active voice" and "write with verbs and nouns, not adjectives and adverbs." Pullum's point is that the literal advice is misguided; qualified advice, vacuous; and admonished advice, incoherent. His criticism reminds of the legal-realist mockeries of the interpretive canons, and the same rebuttal applies: defeasible rules aren't necessarily vacuous or contradictory. Strunk & White understood the active-voice passive-voice distinction and merely mentioned a related distinction between connective verbs and transitive active verbs. Where critics find Strunk & White ignoring its own advice, they could more charitably construe this inconsistency as having a point many critics endorse: style and even grammar rules are at best only guidelines.

Descriptivist linguists act paradoxically when they criticize a recommended rule as "wrong," but the unquestioned acceptance of some of the Strunk & White "rules" has harmed usage. Even Bryan Garner — not to speak of Wayne Schiess — continues to advocate a rule that would deplete the language's expressive power: the that/which linkage to nonrestrictive and restrictive modifiers, a rule announced by Strunk & White. What arouses the somewhat misplaced ire of the book's vehement critics is the misuse to which others have applied it. The work has been transformed from a teaching aid for inexperienced writers into a battering ram of the incompetent against those who have outgrown Strunk & White's strictures. Ascending to administrative, educational, and editorial posts, the mediocre exploit the stark absolutism of the rules understood without the qualifications in the text following. One or another rule may be purveyed as a writing panacea. The recommendation to prefer the concrete to the abstract is turned into a condemnation of abstraction, by persons afflicted with excessively concrete thought. The book's commitment to the attic style may be taken to preclude other styles, rather than as a stage in writers' development.

To objectively assess Strunk & White, we should distinguish the work from its use by epigones. Too simplistic to serve today as general style guide or text, Strunk & White in its succinctness can sometimes help experienced writers re-activate a mental set incorporating its theme of syntactic transparency.

Attractive Fonts for Hard Cases

Lawyers care much about some Facets of document Attractiveness and little about others (See "Effective Writing: The Big Picture" for definitions of the Virtues and their Facets): lawyers who haven't devoted a thought to font selection would never consider submitting a strikeout, which decreases Neatness and affronts a formality. Lawyers don't think about fonts because when designing the appearance of documents lawyers worry instead about breaching formalities. Lawyers dread violating some formality they are unacquainted with, a professionally humiliating experience. To give the profession its due, breaching a formality has consequences worse than filing an Ugly document.

Document aesthetics are most important when your case is weak on the merits. Improving the Attractiveness of a document is one of the few ways to appeal to a judge's emotions; the other is Euphony. With a weak or unpopular case, you desperately need to create favorable associations. Augmenting Euphony means making a difficult turn toward the asiatic style. Fortunately for hard cases, most lawyers can easily augment briefs' Attractiveness, so lacking in aesthetic sensitivity is lawyerly composition.

Most lawyers can improve even Clarity significantly by a simple font change, substituting Century Schoolbook (New Century Schoolbook on Macintosh) for Times New Roman or Times. The remedy for Ugliness involves two font changes to improve Novelty and Pattern by using distinct font families for headings and body text. Choosing compatible combinations calls for some study, thought, or advice. Although you will often read the conventional recommendations to use serif fonts for body text, the data indicate the absence of consistent Clarity differences that depend on complicating the end stroke of letter and numeral.

Here are some striking yet professional combinations of serif body text and sans-serif headings:

Corbel for headings; Constantia for text. (Microsoft fonts: download a trial of Microsoft Publisher in Office 2007, and keep the fonts.)

Century Gothic for headings: Century Schoolbook for text.

And sans-serif body text and serif headings:

Zapf Elliptical (also called Utopia) for headings; Zapf Humanist (Optima) for text. (WordPerfect fonts: similar acquisition techniques apply.)

Serifa for headings; Univers (Zurich) for text. (WordPerfect fonts.)

Grammar and Judges

A reader asked whether I thought judges themselves knew the grammatical and mechanical rules I discussed in the last entry; even if they know, do they care? No, most don't know, and those who do don't care a bit. The importance of punctuation isn't to have the judge give tacit points for good grammar but to allow the judge the greatest understanding of your argument. Proper comma usage aids comprehension by setting off modifiers less directly related to the main message.

Sometimes failure to properly punctuate creates ambiguities. When nonrestrictive adjectival clauses beginning with relative pronouns like who, that, or which aren't set off (or restrictive ones are set off) the meaning the sentence conveys is not only confusing; it's quite wrong. Think about the miners who worked beneath the surface in the last entry and the distinctly different meaning that results from adding a comma. The creation of ambiguities when you wrongly punctuate relative clauses is another reason, besides cognitive ease, that teachers emphasize adjectival clauses.

Adverbial clauses don't create the same ambiguities because the initial words of adverbial clauses, like because, since, where, or when, always have the same grammatical role when they have the same sense: since introduces a restrictive clause in its temporal sense and a nonrestrictive one in its causal sense. At worst, incorrectly punctuating a since clause creates only semantic ambiguity, which the writer failed to enlist punctuation's aid to resolve, not relative-clauses' structural ambiguity.

Incorrectly punctuating adverbial clauses doesn't ordinarily create ambiguity, but it confuses the reader for other reasons. Consider this sentence from the preceding entry:

If someone asks, "Did the miners die, since the employer spent too little on safety" when employer underspending wasn't the reason, the question should elicit denial only of the "since" clause, not the whole statement.

More than a single punctuation error could mar this sentence, but I want to focus on the effect of incorrectly placing a comma after safety and before when. An adverbial clause introduced by when is usually restrictive, as it is above. Inserting a comma after safety causes the reader's brain to try to interpret what precedes when before reading the rest. The effort is misguided because the if clause speaks of the effect of someone's act of asking only on the condition that the employer's underspending wasn't the reason for disaster. A comma before when generalizes the conditional relationship. By triggering the wrong interpretive strategy, the writer risks confusing or at least delaying the reader.

Attorneys must overcome being conditioned in grade school to think of correct usage as a way to impress readers or avoid embarrassment. Law-firm partners will often incompletely extinguish their early conditioning because they aren't pressured to understand briefs under tight deadlines, and they are apt to speculate about whether correct syntax and mechanics "look right" or whether the judge will mistake right for wrong. Judges theorizing about what judges care about make this mistake — one hopes referring to other judges' reactions — as when Justice Scalia suggests avoiding contractions because of a some judges' possible disapproval. Judges lack the time or interest to correct attorneys' grammar. Safer to give judges what they need than what they say judges want.

Logical grammar: Restrictive and descriptive modifiers clarified at last

Part of the answer to why lawyers don't perform various writing tasks correctly is that many don't know how. Hyphenating phrasal adjectives? How many lawyers can identify one? So norms develop that hyphenation doesn't look right. Understanding phrasal adjectives isn't vital, but to know if your ghostwriter punctuates correctly, you must understand the distinction between restrictive and nonrestrictive modifiers. Grammar textbooks emphasize applying the distinction when the modifier is a clause starting with a relative pronoun, such as who, which, or that. Adverbial clauses, starting with words like when, since, because, if, are harder, and their difficulty may be the reason the textbooks apply the distinction to adverbs less often. The rule is the same whether the modifier is adjectival or adverbial: restrictive clauses are not set off by commas, whereas descriptive clauses are. A major exception is that longer initial clauses and phrases are set off, even if restrictive.

I'm going to discuss some of the harder-to-classify adverbial clauses. The pedagogical principle is that the basis for categories becomes clearest at their edges. I don't know that every authority assents to my classification, but if you attend to my logic you will grasp the distinction between restrictive and nonrestrictive (sometimes called descriptive) modifiers, and you can then judge whether your ghostwriter gets it right most of the time.

The test is: does the modifier make the set of objects or actions that satisfy the modified term a proper subset — a subpart — of the set of objects or actions that satisfy the unmodified term?

The miners who worked beneath the surface died in the accident.

An easy adjectival example to start, the unpunctuated clause beginning with who is restrictive. The only miners who died in the accident were the ones who worked beneath the surface; some didn't die.

The miners, who worked beneath the surface, died in the accident.

The same phrase becomes nonrestrictive. You start with miners and don't reduce the number of them who died by another criterion: whether they worked beneath the surface. You are talking about all the miners, not a proper subset, and offering further description of them without limiting the number being considered.

Now let's look at some adverbial clauses, which are harder and will cement the distinction. The first one starts with because.

The miners died because their employer cut spending on safety measures.

The adverbial clause beginning with because modifies died. Does it restrict or merely describe the meaning of died? It restricts it because the statement limits the deaths that make the sentence true to those caused by the employer's cut in safety spending. If the miners died but their deaths had nothing to do with decreased safety spending, the sentence becomes false. Clauses beginning with because aren't usually preceded by commas because they are restrictive adverbial clauses.

Consider an adverb with much the same meaning in one of its senses as because, since. This one is very hard. Take the same sentence, replacing because with since:

The miners died, since their employer cut spending on safety measures.

Although this sense of since means much the same as because, it differs subtly. If the miners died for a different reason, denial of the because sentence speaks truth. If the miners died because the country was at war and the enemy bombed the mines, then the correct answer to "Did the miners die because of withheld safety spending?" is no, but what is the answer to: "Did the miners die, since their employer underspent on safety"? The since clause doesn't state a restriction on the acts of dying that count for the sentence's truth. Merriam Webster's supplies because as a synonym for since but defines the relevant sense as "in view of the fact that," whereas it defines because as "for the reason that." The assertion that the miners died because... imparts the reason for their death and is false if the reason is wrong. The assertion that the miners died since ... asserts a background fact that is a presumption underlying the sentence's utterance. If someone asks "Did the miners die, since the employer spent too little on safety" when employer underspending wasn't the reason, the question should elicit denial only of the since clause, not the whole statement. The relevant miners remain the same set. Since restricts the circumstances in which the sentence is meaningful, but it doesn't restrict the relevant miners' deaths.

One final example. Consider it your final exam. Is an adverbial clause beginning with if restrictive or descriptive?

If the boss had spent more, the miners would still be alive.

Restrictive; although a comma follows the if clause because it starts the sentence, the sentence is true only if the miners' lives depended on the spending.

Now all readers can follow the discussion about punctuation.

Hyphenating compound adjectives: Reconciling legal writing with professional writing practices

Style manuals decree writers must hyphenate most phrasal adjectives when they precede the noun the phrase modifies, but many lawyers don't know the rule; many who know reject it. (See Shannon's comment.) An example of a controversial phrasal adjective occurs at the end of the third paragraph:

requires time-consuming semantic processing.

Some lawyers say the phrase needs no hyphen because time is a noun, and one would never think it modifies processing; but a writer who guesses what "no one" thinks exceeds his expertise. Time may usually be a noun, but in time-consuming, time functions as an adverb. In my example the hyphen avoids a different ambiguity that time is the object of requires: requires time...to consume semantic processing.

Bryan Garner and Wayne Schiess agree that with the standard exceptions phrasal adjectives should be hyphenated, but Sasha Volokh argues for punctuating only as necessary to avoid probable ambiguity, not a hypothetical one. I disagree with the three authorities. Garner and Schiess give insufficient weight to the opinions of some competent legal writers who often omit hyphens, and Garner and Schiess don't identify unneeded punctuation as redundancy. Volokh qualifies the hyphen rule but on the wrong basis. Volokh thinks that the hyphen wastes white space when the adverb can't plausibly be an adjective modifying a subsequent noun, but miscue isn't the only problem with omitting hyphens; the more common problem is delay. Omitting the hyphen delays informing the reader of what the adverb modifies until the reader reaches the noun. Then the reader's brain must engage in time-consuming semantic processing before concluding whether time modifies consuming or a subsequent word. In the example the reader must reach beyond semantic to processing before parsing the phrase.

Against Volokh's commonly encountered position that writers should omit hyphens when miscue is improbable, what allows omitting the hyphen isn't that the adverb can't plausibly be an adjective but that it very plausibly is an adverb, creating a self-contained phrase, such as high-school student. Even a self-contained phrase isn't usually enough to warrant omitting the hyphen. Most self-contained phrases should be hyphenated because the stock meaning won't necessarily be salient for all readers; a high school student could be a college student on drugs. The set of self-contained professional phrases, terms of art, such as summary judgment motion or municipal code violation, are the true exceptions to the phrasal-adjective rule, not only because of audience uniformity. When one of these phrases occurs in a document, repetitions often abound, so once a summary judgment motion features in a case the writer will probably mention it again. Repetition compounds the redundancy of hyphens and adds disproportionate clutter.

Do professional writers who obey the Chicago Manual of Style or similar guides know how to edit law documents better than professional legal writers? The style guides envision writing to a broader audience. Despite some plain-language advocates' exaggeration of the similarities, writing for lawyers sometimes differs from writing for educated nonprofessionals.