'To be' or not 'to be': an easy way to improve legal writing.

Lawyers often ask if one simple trick can help improve their writ Ling. I always respond: "Yes. Try using fewer forms of the verb `to be.'"

If you write like many legal writers, you probably use the verb "to be" as the focal point of many sentences. When you do, you use up the most important part of the English sentence - the verb - and say very little. The other two parts - the subject and the noun or adjective following the "be" - must then carry the information you wish to convey. And, as a rule, nouns and adjectives don't do much to capture and hold the reader's attention, a task more adeptly carried out by the action verb.

Let's look at a real-world example. Consider the following passage on the hearsay rule from a brief submitted to a federal court. It has 11 constructions of the verb "to be" (which are shown in italics):

The reason for excluding business records from the hearsay rule is their circumstantial guarantee of trustworthiness. If a business is to be successful, there must be accurate records on which it can rely to carry out its activities.

In the instant case, Exhibit X is a profit and loss statement. The making of a profit was a key consideration of the Benevolent Society in holding these bake sales. This document was prepared to record the result of the sale. The trustworthiness of Exhibit X is ensured by its intended usage by the Benevolent Society. It is Respondent's position that Rule 803(6) is applicable and Exhibit X is admissible.

The tone of that kind of legal writing does tend to put the reader in a catlike coma.

But a factor other than tone should prompt you to reduce your use of the verb "to be": getting rid of fuzzy abstraction. When you force yourself to use action verbs, typically you will toss abstraction aside. in each sentence, you create a concrete image, even when the subject matter itself constitutes part of an abstract whole, as it so often does in legal writing.

Abstraction, especially fuzzy abstraction, gets in the way of winning cases before trial and appellate judges - their eyes glazing over, their mind clouding as they plod through yet another pile of abstract words. Careful winters seek to clarify their thoughts and avoid abstraction. They do this by refusing to use the main dab of glue that fastens abstract words to the already overloaded sentence: forms of the verb "to be."

The E-Primers

The goals of clear writing and clear thinking prompted some members of the international Society for General Semantics to form a new language called E-Prime. As described by Cullen Murphy in the February 1992 issue of The Atlantic Monthly, E-Prime has one simple but ambitious principle: Eradicate all forms of the verb "to be" from all language, written and spoken.

To rid their language of abstraction, the E-Primers cull the forms of "be" as "main verbs" in their sentences. They avoid the eight forms of the word: "am," "is," "are," "was,"were" "be," "being," and "been," whether those words appear fully spelled or as parts of contractions such as "I'm" or "you're" or "it's."

The diehard E-Primers go even further and obliterate afl forms of "be" used' as "auxiliary verbs." They would abolish, therefore, all forms of the passive voice, as in "the case was decided," and the progressive tense, as in "the man was carrying a package" or "we will be deciding this issue tomorrow."

Do the E-Primers offer sound advice for the busy trial lawyer who must struggle daily with expressing the abstract ideas in the law? Yes. And no. Pedagogicatly, the E-Primers have discovered a trick. But, linguistically, they go too far. Should legal writers reduce their use of the verb "to be"? Without doubt. Should they abolish the word altogether from their writing? Hardly.

Swatting Your `Be's'

To gain practice, and to improve your writing dramatically, go on a "be" hunt. in fact, use your word processor to search for the eight culprits mentioned earlier. As you find these words, determine how you use them. See if you can say the same thing more clearly and vividly with action verbs.

To make it happen, try these mental tricks:

* Show "being" through "doing." Show what something is by what it does. If you do, will your writing be better? Yes, but your writing also will improve.

* Bring the actor back into the writing. What do you say: "There are only a few cases on point"? Or: "Only a few courts have decided cases on this issue"? Note how bringing the responsible party back into the writing allows you to use the action verb "have decided."

* Let ideas act Oliver Wendell Holmes once wrote, "And we now have to consider whether the cautious statement in the former case marked the limit of the law...." Johnson v. United States, 228 U.S. 457,458 (1913) (emphasis added).) Can a statement literally mark a limit of the law? No. But note the figurative image Holmes achieved by using the action verb.

* Use "thinking" verbs. Linking verbs include the sense verbs ("looks," sounds, "feels," "smells," and "tastes") and other verbs ("appears," "becomes," "continues," "grows," "Proves," "remains," "seems," "turns out," and others). These verbs link to adjectives or nouns or sometimes adverbial phrases, for example, "he looks awful" (adjective), "she feels bad" (adjective), "she seems an honest woman" (noun), "the document appears in the appendix" (adverbial phrase). Thus, instead of saying: "The court was firm in its decision," say: "The court remained adamant and declined to change its decision."

Edit out "nouniness." Legal writers often bury their verbs in structures called "derivative nouns" or "derivative adjectives." By taking a perfectly good verb md adding certain suffixes, weak writers will change "conclude" into "conclusion," "state" into "statement," or "hesitate" into "hesitant." And when they use these derivative words in sentences, they often hang them on our good friend the verb "to be." Thus: "The judge was hesitant. " Or: "There was a conclusion to the case."

If you'll declare war on these stuffy and weak derivative nouns and adjectives - those that bury the more powerful verb - you'll simultaneously destroy many "be's." Instead of saying "the judge was hesitant" (derivative adjective), say "the judge hesitated." Don't pile up nouns like this: "The meeting was because of our desire for the achievement of the improvement of our mutual understanding." Instead, get rid of "be's" and nouns, and use action verbs: "We met because we wanted to understand each other better."

* Use intransitive verbs. Intransitive action verbs show motion or location of a person or thing. Instead of saying "the Miranda case is the best example of this approach," say "the Miranda case stands as the best example of this approach." The English language offers hundreds of intransitive verbs, but you should seek those showing location as your substitutes for the verb "to be": "stands," "moves," "enters," "leaves," "remains," stays," and so on.

* Fake it. The English language has many words that can substitute for the verb "to be." Instead of saying "the reduction to practice was before the opposing party's priority date," say that "the reduction to practice occurred before the opposing party's priority date." In a speech once, Professor Charles Whitebread of the University of Southern California Law Center said, "[T]he juvenile court judge emerges as the best possible transfer decision maker." Not "is the best possible transfer decision maker."

Putting the Tricks to Work

Let's use some of these mental tricks to revise the previously quoted passage on the hearsay rule. By reducing constructions of the verb "to be" from 11 to 2, the writer could have written:

The law of evidence excludes business records from the hearsay rule because they guarantee a certain minimum level of trustworthiness. To succeed, a business must have accurate records of its daily business dealings, records deemed reliable by the business itself and by others with whom it deals.

In the current case, Exhibit X amounts to a typical profit-and-loss statement. Motivated by a desire to raise funds, the Benevolent Society held these annual bake sales and carefully recorded their financial results in the document now called Exhibit X. The Society viewed the document as a business document and relied on it to plan future sales. As with any similar business document, its trustworthiness is thus ensured and, under Rule 803(6), Exhibit X is admissible as a valid exception to the hearsay rule.

`Be' Talk

The verb "to be" threatens to invade our legal language even more as this century draws to a close. Today, many teenagers, college students, and now young lawyers have become enamored of a new form of "speech," a new word indeed, a new verb: "tobelike." This verb has the usual tenses, formed through strange contractionlike device permanently marrying subject to verb. In the first person, present tense, we hear: "I'mlike." In the past tense, we cringe at "Iwaslike." On the subway once, positively winced when I heard a future tense: "I'llbelike."

Those with young children or teenagers know well the linguistic scourge I describe. Entire conversations can take place, complete with (1) apparent agreement, (2) some semblance of understanding, (3) wild flailing of arms and hands, and (4) a cacophony of various grunts and groans.

He: "I'mlike up to here." (Hand and forearm, parallel to the ground, rise to level of eyebrow.)

She: "Like yeah." (Heel of hand, with fingers curled at each knuckle, strikes center of forehead.)

He: "Like yesterday waslike, Ugh! (The theme begins to develop.)

She: "I'mlike, oh, waslike, you know." (Gentle but rhythmic nods of total understanding.)

He: "So you'llbelike, with it." (Presumably a question.)

She: "I'mlike ... you know." (Mutual nods of assent to the newly shared precepts.)

And what word becomes paramount in speech and "thought"? The verb "tobelike." And what word disappears from the language? The action verb. And what word will soon disappear from writing when the users of this new language join the professional ranks? The action verb. Then, abstraction will indeed reign supreme.

As clients and judges by the thousands nod off to join the cat in the coma.

Kicking the Habit

If you have a "be" habit in your speech or your writing, you might heed the words of Dean Richard Wydick in his delightful book, Plain English for Lawyers (1985):

Avoid Cosmic Detachment

Every legal problem involves people. Without people, there would be no legal problems. Yet ... writing too often ignores people and addresses itself to some bloodless, timeless cosmic void....

When you find yourself struggling to express a complex ... idea, remember to ask yourself [this] key question... : "Who is doing what to whom?" Bring those living creatures into your writing - make them move around and do things to each other. Sudden]y, abstraction win evaporate, and your writing will come alive.

The legal profession has squeezed the life out of legal writing with its heavy use of "be's" and their inevitable nouny abstractions. The profession practically demands that lawyers enter a trancelike state of addiction to the verb "to be" and a spate of other maladies.

Breaking the habit will require Herculecan effort. But you will experience the long-term reward of becoming a potent writer and speaker, who can make it through a paragraph, a page, or even an entire paper or speech without using a single form of the verb "to be."

Focusing on the Action

Not possible? Simply reread the 2,000 words I've used in these comments. When you do, you'll search in vain for any, use of the verb "to be." How did I do it? By showing "doing," not "being." By letting actors act. By letting ideas act. By focusing on the action verb as the key event in all sentences.

Try it out.

You'llbelike . . . "Whoa!"