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The idea on said table
 Lawyers love to repeat lawyers' nouns. Perhaps said lawyers think that said
 lawyers increase said lawyers' precision and clarity by refusing to use
 said lawyers' pronouns.

Perhaps I should have written:
 Lawyers love to repeat nouns. Perhaps they think they increase their
 precision and clarity by refusing to use pronouns.

For some reason, we lawyers have a built-in fear of using pronouns. We needlessly repeat the same noun over and over again, never shortening it to another phrase or reducing it all the way down to the good old pronoun. Unfortunately, the habit does not exhaust the methods we use to repeat our subject matter in full, unnecessarily lengthening our sentences and boring our readers. A shortened reference to the idea under development would make the writing flow more smoothly.

Let's start with a concept. Call it "the idea on the table," for lack of a better term. Good, smooth legal writing consists of a series of logically related ideas placed into the brain of an intelligent but ignorant reader via the written word. When each idea makes its debut in the paper, it becomes "the idea on the table." It might be the broad issue subsuming an entire argument, one of the "prongs" of a three-prong test, the topic of a paragraph, or a subsidiary point fleshing out the larger idea.

But whatever its size or relative importance, the idea on the table is the one the writer needs to develop to educate the reader fully. Along the way, the careful writer will deal with only one idea at a time, developing each before moving on to the next.

While developing each idea on the table, the careful writer recognizes two pressing needs. First, to develop a "flow," the writer must refer back to each idea being developed. To avoid tedium, the careful writer devises an array of ways to draw the reader's attention to the subject matter at hand. Second, to satisfy the reader's mental cravings, the writer tries to show how new information relates to the idea on the table.

Referring to said idea on said table (hereinafter "table")

Before we explore the methods good writers use to refer to the idea on the table, let's first raise and then immediately reject some unfortunate legalistic traditions handed down by our forebears. Heading the list, no doubt, is the historically dusty use of "said" as an adjective, an expression we lawyers use to refer to an idea with such incredible clarity and precision that no one can possibly doubt our meaning.

All of us should heed the words of Bryan Garner in his must-own work, A Dictionary of Modern Legal Usage (2d ed. 1995, at 778):
 Said should be rigorously eschewed in place of the, that, this, or any
 other deictic or "pointing" word. Used in place of such a word, said
 typifies legalese and is often parodied by nonlawyers. And lawyers
 occasionally fall into self-parody:

 "A considerable number of persons were attracted to said square by said
 meeting, and said bombs and other fireworks which were being exploded
 there. A portion of the center of the square about 40 to 60 feet was roped
 off by the police of said Chelsea, and said bombs or shells were fired off
 within the space so inclosed, and no spectators were allowed to be within
 said inclosure. The plaintiffs were lawfully in said highway at the time of
 the explosion of said mortar, and near said ropes, and were in the exercise
 of due care."

Coming in as a close second in the race to what many of us hope will be the ash heap of history is the tiresome habit (hereinafter "habit") we lawyers have of developing our own shortened names to refer to parties, transactions, courts, and other nouns that just might be in need of shortening. The technique is a good one when the noun needs a shortened name not apparent on its face.

In patent practice, for example, we have the tradition of shortening a patent number, such as U.S. Pat. No. 5,124,402, to the last three digits, that is, "the '402 patent." But in other areas of practice how often do we see: "Comes now the Plaintiff, Acme Widgets International (hereinafter referred to as `Acme')..."? What else would we call it? Zeke?

I once saw a petition for certiorari shorten the "United States Court of Appeals for the Second Circuit" to "Second Circuit" and then proceed to refer to it in the next sentence as "the United States Court of Appeals for the Second Circuit." And how often do we see a shortened name only never again to encounter it in the same written piece?

We should again heed the words of Bryan Garner, this time from his must-read The Elements of Legal Style (1991, at 80):
 Legal writers have become enamored of defined terms. Here, as with
 footnotes, we see writers mistaking the forms of scholarship for its
 substance. Although it may be convenient, even desirable, to be able to
 refer to "the Agreement" and to know precisely what is referred to, the
 habit has so insidiously worked its way into legal writing that we
 sometimes see defined terms that are defined and then never again used.

Garner labels "hereinafter called" a "stilted legalism easily avoided." (Id. at 116-17.) He advises, "Ordinarily, a shortened name unambiguously follows the full name." Then he provides two examples:

 Acme Fire & Casualty Company (hereinafter called "Acme") moves that the
 court dismiss the action. Acme submits that ....


 Acme Fire & Casualty Company moves that the court dismiss the action.
 Acme submits that ....

In the literature on legal writing, no one seems to have fashioned any rules on the use of defined terms. ! will thus be so bold:

1. Use a defined term only when you plan to use one not immediately apparent from the term shortened. Thus, Coca-Cola Bottling Co., Inc., needs no defined term and can readily be referred to as "Coca-Cola" without confusion. Neither does Dr. Fred Jackson need the defined term "Jackson." And neither does the United States Court of Appeals for the Federal Circuit need the defined term "Federal Circuit," for common practice in legal writing accepts a reference to the "Federal Circuit."

2. Use a defined term for an entity otherwise having an immediately apparent short form when the facts contain two similar or nearly identical entities. If the facts involve Coca-Cola Bottling Co., Inc., and Coca-Cola Bottling Co. Europe, S.A., shorten the first to "Coca-Cola USA" and the second to "Coca-Cola Europe."

3. Use a defined term when identifying any party as an acronym.

4. Reveal defined terms as follows: "On April 29, 1993, International Business Machines, Inc. (IBM) filed a patent application for its widget." The "hereinafter referred to as" does nothing more than clutter.

These two prominent features of legalese reveal some of the clumsy ways we lawyers have developed of referring to the idea on the table. Our motives were pure, for we knew that to make writing flow we had to refer to the idea under development. But there are some far more graceful ways available.

Pronominal references

Fear not the pronoun. When the antecedent is crystal clear, you should refer back to it with the leaner, and hence superior, pronoun. There is simply no justification for saying "you should refer back to said antecedent." "It" does the job just fine.

Any doubters might take a quick look at the writing of Justice Robert Jackson, regarded by many as one of the best stylists ever to sit on the U.S. Supreme Court. In the following passage from Dobson v. Commissioner (320 U.S. 489,498-99 (1943) (footnotes omitted)), he writes about the driest of topics--the U.S. Tax Court. Note how the word "it" holds the entire passage together. Also note how Jackson does not shy away from using the pronoun "their," resisting the lawyerly urge to repeat the noun "members."
 The court is independent, and its neutrality is not clouded by prosecuting
 duties. Its procedures assure fair hearings. Its deliberations are
 evidenced by careful opinions. All guides to judgment available to judges
 are habitually consulted and respected. It has established a tradition of
 freedom from bias and pressures. It deals with a subject that is highly
 specialized and so complex as to be the despair of judges. It is relatively
 better staffed for its task than is the judiciary. Its members not
 infrequently bring to their task long legislative or administrative
 experience in their subject.

Word pickups

One of the simplest ways of staying with the idea is to repeat words. Yet many writers have been scarred for life by high school English teachers who sternly admonished, "Never use the same word twice." Well, as grown-ups, we now realize that our dear Sister Mary Elizabeth was just trying to help us ace the verbal part of the Scholastic Aptitude Test.

By forcing us to make a mad dash for Roget's, she taught us new words, perhaps even the ones showing up on the next exam. That was good advice back then, but I can assure you that careful writers hesitate not a nanosecond to repeat words appearing in previous sentences.

Look what Justice Benjamin Cardozo did when he wrote the facts of Palsgraf v. Long Island Railroad (162 N.E. 99, 99 (N.Y. 1928).) Check out the italicized words--either words appearing more than once, pronouns referring back to antecedents, or derivations of words already used.
 Plaintiff was standing on a platform of defendant's railroad after buying a
 ticket to go to Rockaway Beach. A train stopped at the station, bound for
 another place. Two men ran forward to catch it. One of the men reached the
 platform of the car without mishap, though the train was already moving.
 The other man, carrying a package, jumped aboard the car, but seemed
 unsteady as if about to fall. A guard on the car, who had held the door
 open, reached forward to help him in, and another guard on the platform
 pushed him from behind. In this act, the package was dislodged, and fell
 upon the rails. It was a package of small size, about fifteen inches long,
 and was covered by a newspaper. In fact it contained fireworks, but there
 was nothing in its appearance to give notice of its contents [following the
 verb "contained"]. The fireworks when they fell exploded. The shock of the
 explosion [following the verb "exploded"] threw down some scales at the
 other end of the platform [count 'em; four uses of "platform"], many feet
 away. The scales struck the plaintiff, causing injuries for which she sues.

Demonstrative pronouns

The careful writer often turns to four words to help bring the reader's attention back to the idea on the table: "this," "that," "these," "those." Called "demonstrative pronouns," these words typically should precede some other noun, for as a rule they should not serve as true pronouns--those taking the place of a noun. But that's not a hard-and-fast rule. Note, for example, my use of "those" two sentences back and "that" one sentence back. When the antecedent of "this," "that," "these," "those" is unmistakable, you may use the demonstrative pronoun all by itself. But don't do this when the sentence comes across as flimsy and weak, like the one you're now reading.

When you use demonstrative pronouns to help develop the idea on the table, typically you'll join them with some other noun. That other noun likely will be either a "word pickup" (above) or a "look-back recharacterization" (below).

Look-back recharacterization

Yes, I did coin this term. When putting an idea on the table, you can effectively refer back to it by recharacterizing it, that is, by renaming the idea. Often you'll use the demonstrative pronoun to accompany the recharacterization.

For example, in the Palsgraf facts quoted above, Justice Cardozo stated, "In this act, the package was dislodged and fell upon the rails." The expression "this act" looks back and names the idea that plopped down on the table in the preceding several sentences. For another example of this device, consider the words "this device" in the sentence you're now reading. Or take a look at the writing of Justice Jackson as he continues to discuss the U.S. Tax Court in Dobson (320 U.S. 489, 499):
 Tax Court decisions are characterized by substantial uniformity. Appeals
 fan out into the courts of appeal often circuits and the District of
 Columbia. This diversification of appellate authority inevitably produces
 conflict of decision, even if review is limited to questions of law. But
 conflicts are multiplied by treating as questions of law what really are
 disputes over proper accounting.

Note how "diversification of appellate authority" recharacterizes or renames the process of "appeals fanning out." Essentially, the careful writer draws the reader's attention back to the idea simply by restating the "subject matter" in a different way. Using this trick will help you avoid over-using the word-pickup device. Check out "subject matter" two sentences back and "trick" one sentence back.

Adjective with noun dropped

When you phrase the idea in the form of a noun and in the next sentence wish to modify the same noun with an adjective, you can pull it off by including the adjective but dropping the noun. For example, you might say the following: "Several cases have confronted this issue. One of the most recent is Jones v. Smith, 123 F.3d 1234 (4th Cir. 1997)." You can refer back to the noun "cases" by describing it with the adjective "recent" and by dropping "cases."

Auxiliary verb with main verb dropped

When the idea you've put on the table takes the form of a verb, you can refer back to it with an auxiliary verb all by itself. If you do, you'll keep the reader's attention. See? The idea on the table is "refer back." The later reference to it takes the form of "if you do." The auxiliary verb "do" does a nice, lean job of referring back to the preceding verbal idea. Watch for these auxiliary verbs enabling you to use this device: "do," "Will," "have," "can," "may, .... might," "must," and variations of these words.

`Question' adverbs with verb or clause dropped

The question adverbs include "how," "when," "why," "where," "what," and "who." When the idea on the table takes the form of a verb or an entire clause, you can refer back to it with one of these words and no accompanying verb or clause. To figure out how, just look at this sentence you're now reading. The missing "to refer back to it" is not needed. That's the idea on the table, and using the question adverb "how" draws the reader's attention to that idea.

Just shorten the name

Finally, instead of repeating the full name of the idea on the table, consider shortening the name. You might, for example, pare the name down to a shorter name and then refer to it with a pronoun. Thus, in my previous two sentences, "name of the idea on the table" became "name" and "name" again and finally "it." Consider the following passage, where the writer succumbed to the lawyerly urge to repeat the exact words time and time again, using "jury instructions" four times with no shortening at all:
 The court distributed its draft of jury instructions, which described the
 defendant's defenses. The court had used many of defendant's jury
 instructions proposed before trial. After oral argument about the court's
 draft of the jury instructions, the court declined to modify the said jury

Now consider a rewrite, where the references to "jury instructions" become progressively shorter:
 The court distributed its draft of jury instructions, which described the
 defendant's defenses. The court had used many of defendant's instructions
 proposed before trial. After oral argument about the court's draft, the
 court declined to modify it.

Relating new information to the idea

Referring to the idea on the table does not exhaust the concept of idea development. But make no mistake: For the idea to develop, these references must take place. In fact, you can test whether idea development proceeds smoothly just by looking for the referral devices above. If you don't find much evidence of them, chances are good you'll be tempted to mark the writing as "disjointed" or "lacking flow."

Another device helps the careful writer to develop the idea. Let's call it "relational writing." The term is apt, for one meaning of "relational" has grammatical roots: "serving to indicate relations between various elements in a sentence .... "(The Random House Dictionary of the English Language 1626 (2d ed. 1987).) I do not pretend to have identified below every conceivable relationship that new information might bear to the idea on the table, but exploring just a few of them will help you achieve a smoother flow and perhaps even conceive of other ways to develop the idea.

Narrowing the idea

When introducing an idea, writers should generally proceed from broad to narrow.

Many writers begin paragraphs, or sometimes even entire discussions, with a spate of details and particulars. Instead, they should identify the generic point they're making, give it a name, present that name at the top of the discussion, and then proceed to narrow it.

Some writers methodically narrow the idea and take their time about it. Consider, for example, this passage from the Supreme Court case of In re Gault (387 U.S. 1, 14 (1967)):
 From the inception of the juvenile court system, wide differences have been
 tolerated--indeed insisted upon--between the procedural rights accorded to
 adults and those [accorded to] juveniles. In practically all jurisdictions,
 ... rights granted to adults ... are withheld from juveniles.

Note how the writer broadly put the idea on the table with %vide differences." But at that stage of the game, the reader hasn't the foggiest idea about who ends up on the short end of the procedural-rights stick, adults or juveniles. Just what are the differences in procedural rights? Then, the idea narrows in the second sentence with the word "withheld." Ah, adults get the better deal.

There's a lesson here: Watch out for the lawyerly urge to say everything there is to say about the entire universe in the first sentence of a paragraph. Lest you doubt the urge, take a look at this train wreck:
 Although the stated grounds for the objections were "relevancy," the thrust
 of petitioners' objections were that these facts relating to the issue of
 whether the Court may determine overpayments for taxable years 1984 and
 1986 which petitioners asserted constitutes an "affirmative defense" under
 T.C. Rule 39 which respondent has allegedly waived by failing to raise said
 defense in its Answer. For the reasons set forth below, respondent submits
 that petitioners' objections are not well-taken and must be denied.

Whew. Unfortunately, I didn't make it up. The passage appeared in a brief submitted to the U.S. Tax Court, complete with the two subject-verb disagreements ("thrust ... were" and "facts ... constitutes").

Exemplifying the idea

Once you establish the nature of the idea, you can develop it with examples. When you do, you should be sure to alert the reader in advance that exemplification is about to take place.

Don't hesitate to use such expressions as "for example," "for instance," "in particular, .... specifically," "to take just one example," "to illustrate," and "typically." These words show that the information the reader is about to receive exemplifies the idea on the table. If you presented the reader with the new information but without the relational term, the reader would have to deduce that the new information serves as an example of the idea on the table. Alerting the reader ahead of time aids comprehension significantly.

Consider, for example, the same passage from In re Gault and note how the idea narrows from "Wide differences" to "Withheld" and then to examples:
 From the inception of the juvenile court system, wide differences have been
 tolerated--indeed insisted upon--between the procedural rights accorded to
 adults and those [accorded to] juveniles. In practically all jurisdictions,
 ... rights granted to adults ... are withheld from juveniles. In addition
 to the specific problems involved in the present case, for example, it has
 been held that the juvenile is not entitled to bail, to indictment by grand
 jury, to a public trial, or to trial by jury. It is frequent practice that
 rules governing the arrest and interrogation of adults by the police are
 not observed in the case of juveniles.

Showing consequences

Often writers develop an idea by showing what impact it has or what follows from it or what effects take place as a result of it. The idea becomes all the more firmly fixed in the reader's mind if the consequences of the idea on the table are explored in some detail.

In legal arguments, we often see the parade-of-horribles litany of disasters that will inevitably take place if a particular holding is allowed to stand. Similarly, results of a judicial decision are either supported or attacked on grounds of "public policy," shown through an analysis of the consequences of the idea on the table.

When causation is the relationship between new information and the idea on the table, alert the reader to the nature of the relationship. Words like these will help you pull it off: "consequently, .... therefore," "as a result," "thus," and "accordingly."

Comparing and contrasting

Analogizing and distinguishing--two crucial weapons in the lawyer's arsenal. Our readers learn more about the idea on the table when they see how it compares with other information, either known or developed in the written piece itself. And readers can learn equal amounts about the idea when we affirmatively state what the idea is not or how the idea differs from other information.

When we engage in comparing or contrasting, either we can present the raw data to the reader and let the reader figure out that it's comparable or contrary information, or we can use words alerting the reader to the relationship between the new information and the idea on the table. Thus, do not hesitate to begin new discussions with terms that show analogy: "similarly," "in a similar vein," "the current case is identical," "so too in the present situation," "this notion closely resembles," and on and on and on.

By the same token, you should take every chance that you have to illustrate what the idea on the table is by showing what it isn't. Again, introduce these contrasting relationships with appropriate terms: "on the other hand," "however," "nevertheless," "on the contrary, .... the current case stands in stark contrast," and on and on and on.

Helping the reader along

Too many writers, in the legal field and elsewhere, think they fulfill their role simply by delivering data via the written word. They think that their readers will become informed through immersion in the specifics.

Their writing resembles the research notes from whence the writing came. They write as if their sole function in life is to serve as a conduit of raw data, as if their job title were "photocopier," as if they simply have to hand to their readers photocopied cases they've read and say, "Here, you figure it out."

Associates-and partners-in law firms should be more than highly paid photocopiers and note takers. They should be accomplished writers who do not cast their readers into piles of details.

Readers, after all, don't think that way. They do not readily absorb details and specifics. Instead, they want to know about and see the big picture. They want the idea to develop in a methodical and logical way. And they cannot focus on the idea being developed unless the writer has done at least two things: refer to the idea on the table and relate new information to that idea.

When writers force themselves to use these twin techniques--referring and relating--they often begin to see the big picture themselves more clearly. Then they can begin to paint the picture clearly and succinctly with words. That, I believe, is what expository writing should be all about.

C. Edward Good is counsel and writer-in-residence at the intellectual property firm of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, D.C. He is the author of Mightier than the Sword: Powerful Writing in the Legal Profession (Word Store Publications, Charlottesville, Virginia). He may be reached at
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Author:Good, C. Edward
Geographic Code:1USA
Date:Oct 1, 1999
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