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Tips for Young Lawyers

Pursuing Excellence in Your Legal Writing
By:  Elizabeth Beyer

Similar to the number of rules in the Bluebook for legal citations, as legal writers, we are bound by a seemingly limitless number of grammatical rules and guidelines to follow.  However, sometimes the only thing that matters is whether you’re making errors that your audience will notice.  Perhaps your Facebook grammarian friends have shared the commonly frowned-upon mistakes made in Facebook posts. (I consider the your / you’re distinction to be the number one pet peeve of Facebookers everywhere.)  While it’s good to keep those basics in mind, as professional writers, we have a more sophisticated audience – other lawyers and judges.   Let’s just put it this way: If the judge thinks you don’t know what you’re talking about, your clients may end up disappointed in the result.

But, assuming most lawyers have grasped the distinction between “your¹” as opposed to “you’re²", on to grammatical issues more commonly seen in legal writing than in Facebook posts:  

1. Affected / effected.  “Affected” is most often used as part of a past-tense verb phrase (e.g., “Many people’s lives were affected by Hurricane Katrina.”).  “Effected” can be used as part of a verb phrase as well (e.g., to “effect change,”) but this use is much less common.  If you’re unsure of how to use it, it’s probably better to stick with another way to say what you want to say.  We normally use “effect” as the noun version of the first example (e.g., “The effects of Hurricane Katrina were widespread.”).

2. Split infinitives.  There is an excellent article about splitting infinitives in the September 2013 Austin Lawyer magazine by Wayne Schiess, a UT law professor, that I highly recommend everyone read.  To summarize: Split infinitives aren’t that big of a deal, so don’t make your writing awkward or ambiguous to avoid splitting an infinitive.  “To artfully write your pleadings should not be a crime.”

3. The Oxford Comma.  It’s not just a Vampire Weekend song!  The “Oxford Comma” refers to a comma that is used in a set of three items in a written list: “I am available for a hearing on Monday, Tuesday, or Wednesday of next week.”  The comma after Tuesday is the comma in question, and there is debate over whether a second comma is necessary.  Because some folks are likely to see it as a mistake if you don’t use it and because it can resolve an otherwise ambiguous sentence, using it is probably the better strategy in your legal writing.

4. Passive voice.  While the “raging debate” about use of passive voice continues (mostly in my head, probably), the simple rules I use for passive voice go like this:  If you need to use it, go ahead, but if you can avoid it, using active voice results in clearer and stronger writing.  Often in legal writing, we want to structure phrases to de-emphasize who it was that actually did the thing in question (e.g., “the community bank account was depleted”… when it was your client who depleted it).  In these instances, passive voice is perfect.  But for clarity’s sake, particularly in narrative form, active voice is usually preferable.  Don’t rely on the passive voice to make your writing sound more formal.

5.   Foregoing / forgoing.  “Foregoing”  means for the usual purposes.  We use this to refer to something written above (e.g., “Subject to the foregoing objections).  “Forgoing” means  to avoid or decline to do something (e.g., “She is forgoing spousal maintenance in lieu of a higher child support amount.”).

  ¹To be used in possessive forms indicating ownership
  ²A contraction of “you are” 

ELIZABETH BEYER is an attorney practicing exclusively Family Law at The Law Office of Becky Beaver in Austin, Texas.  She served as a managing editor of the St. Mary’s Law Journal, where her article on collaborative family law was published.  She was also 6th grade school champion speller.