By George W. Jarecke

“Mary searched through his drawers but couldn’t find anything.” I heard that line read aloud in a class when I was getting my MFA in creative writing. Everyone guffawed or giggled in guilty delight. By the time we had quieted down, we could barely remember that Mary was sneaking around through Michael’s dresser looking for evidence of an affair. The momentum, in fact the whole story, was done for. (By the way, I wrote a more alarming sentence in that class, but it’s unfit for a family publication. Feel free to contact me for details.)

Legal writing suffers the same perils, if not in the same degree, as we’re seldom rifling through wooden chests, only wooden opinions. Even subtle problems cause our readers -- or even two in five of them, which is two too many -- to stop while some piece of their brains processes the surprising word, phrase or construction before moving on. And that means we’ve botched our plan to lead our readers firmly by their elbows with our convincing logic to the happy result.

Here are some examples of the kinds of stop signs that we don’t want our readers to encounter on the highways of our prose. All come from recently-written materials:

Verb or Noun?

“Crucially, defendants ignore this intersect.” The writer of this brief has to this point been admirable in maintaining a consistent tone and rhetorical level. The word “intersect,” however, breaks that smooth plane. “Intersect” is a verb, not a noun, and, although its misuse has become more commonplace in spoken English, it has scant support for use in formal writing.

The reader may stop, remark on the misuse, and then go on -- but with a diversion we’d prefer not to have created. The author has inadvertently called attention to himself. The idea is both to keep our tone and rhetoric consistent and avoid any word choices that may be too informal. By the way, we probably also don’t know what the author means by “crucially.” Adjoining the adverb to its verb will lessen the chance that the adverb won’t work.

Word Choice

“However, plaintiffs allege that defendants’ actions are not immunized by the exemption.” When I see “immunized,” I think medicine, not law. Although the word choice is perfectly appropriate grammatically, it has the tendency to divert the reader, at least unconsciously.

If your reader is thinking, “Now why did she use immunized?” while reading the next sentence, you’ve lost momentum and meaning. And again you’ve called attention to yourself. Another note: Some say that it’s more elegant to bury the “however” somewhere inside the sentence rather than beginning it with that three-syllable mouthful.

Degrees of Separation

“Defendants’ claim that plaintiff’s refusal to produce documents, respond adequately to interrogatories, and otherwise participate meaningfully in discovery could give rise to sanctions is directly contrary to the spirit of the court’s order.” This sentence is liable to stop the reader completely. The subject (“claim”) is too far away from the verb (“is directly contrary”), and the intervening material (“documents,” “interrogatories”) is specific and complex enough to distract the reader from where the sentence is going. Also, “otherwise participate meaningfully in discovery” takes up an awful lot of space for a phrase that conveys no, uh, meaningful information.

Consider this revision, which uses a more comfortable subject-verb-object construction: “Defendants’ claim is directly contrary to the spirit of the court’s order; sanctions cannot automatically be imposed due to alleged deficiencies in document production and interrogatory responses.” Some may quibble that we’ve cut up a perfectly good sentence with a semicolon, an easy way out, but this construction should work much better. And the semicolon gives the reader notice that we’re about to amplify and clarify the first part.

What’s “This”?

“To attempt to raise an issue of fact, defendants claim that the ‘credibility of the witnesses is not resolvable on a motion for summary judgment.’ This has nothing to do with credibility.” To what does “this” refer? We expect a pronoun to refer to its noun antecedent, but we can be pretty sure that “this” isn’t supposed to refer to “motion for summary judgment.” In fact, there isn’t anything else in the full paragraph that makes sense as the antecedent to that pronoun.

Now you’ve really stopped the reader. A careful one won’t be inclined to go on until this mystery is solved. Watch pronouns and their antecedents.

Train Wreck

Let’s also look at how a set of sentences can erect a stop sign. This example comes from an informed-consent form in a drug trial: “As with any medicine, this study agent may cause some side effects. This is the first time that this drug has been used in humans; therefore all information that is known relates to effects seen in animals. Rare or previously unknown side effects may be observed for the first time during this study.”

First, note the meandering nature of the excerpt. It talks about side effects, next notes how the drug has only been used in animals, and finally circles back to talk about side effects again. A reader would be excused for stopping at the beginning of the third sentence to wander back to see where he’s been led. Make sure that each sentence bridges adequately to the next.

Worse is the confusion wrought by the third sentence. If the drug has never been used in humans, how do we know that any side effect is rare? And wouldn’t all side effects be unknown simply by definition? Finally, wouldn’t any side effects necessarily be observed “for the first time?” In agreement forms (and a consent form is one), we need to think not just about the adequacy of the terms but how they relate to the concepts.

By the way, the passive voice in the third sentence is annoying and unnecessary, as the second person “you” is otherwise used throughout the piece. Perhaps the passive voice is an attempt to be gentle: “You may end up feeling really terrible, but we wouldn’t be surprised” is an alarming declaration.

One way to help avoid constructing these stop signs is to listen to your prose. The unfortunate author of the short story about Mary might well have caught her gaffe if she’d read the story aloud. The creative-writing class certainly picked up on it.

Some infelicities don’t reveal themselves when only read silently. So consider closing your office door and taking a little time to read aloud. Just not too loudly -- even if you hear something painful, there’s no need for anyone else to.n