Writing
Judicial Edge
Writing isn’t enough, you need this other skill

By NJC Distinguished Prof. Ron Hofer

Writing, spelling correction

Whether you knew it then or not, the day you showed up for the first day of law school was the day you signed on to be a professional writer. Moreover, the day you become an appellate judge you become a professional editor—not only of your own work but of others as well.

Let’s begin with editing your own drafts. If you’re like me (and everybody else I know), here’s how you probably edit:

  1. You finish typing your draft.
  2. You press “Print.”
  3. You walk to the printer.
  4. On your way back to your desk, you start rereading the draft.
  5. You sit back down and finish rereading the draft you just wrote.
  6. You dust off your hands and think “Another job well done!”

Here’s the problem. You just finished writing the draft; of course, it’s going to sound good to you! You just heard your mind dictate it! In the perfect world, we all could put the draft on our credenza for six months or so and then reread it. Then, you’d probably find that it didn’t sound nearly as good because you would have forgotten what it sounded like when your mind’s voice dictated it to you. But, of course, none of us have that kind of leisure.

To solve the problem, you’ll need to adopt a different approach to editing, one not depending upon a rereading for content. Next time try this: Go through your draft and circle all your passive verbs. Then, underline all the nominalizations (i.e., nouns that derive from verbs, a/k/a “action nouns,” words like “argument,” “contention,” etc.). Finally, put boxes around any sentences that begin with “It is …,” “There was …,” etc. In other words, put a box around sentences that begin with indefinite pronouns “It” or “There,” followed by any form of the being verb “is.”

Having done that, look at all the marked-up text. If there are no marks on the page, you have probably written an easily understood, active-voice sentence. But for each mark on the page, ask yourself whether your reader would be happier with the passives made active, the nominalizations put back into verb form, and the like. You’ll find this works particularly well in the analytic part of your drafts.

Now, onto editing your colleagues’ writing.

First, if the logistics of your court permit, try to sit down with the drafter and talk about any changes beyond the most minor corrections. You’ll both find it far easier to talk through an ambiguous passage than to write and rewrite comments in the margin.

Second, throw away every red pen in your chambers. We all hated the red-pen criticisms from grade school on. Make all your comments in pencil. Why? Pencils can be easily erased.

Third, if you have to rely on written comments, don’t just put “?” or “I don’t get this” in the margin. Such is unlikely to help the drafter much. Put some content into your comment: “I don’t understand how X is ….”

On this same point, what if a passage in another’s draft is completely impenetrable? You won’t know where to start. Here’s a tip: For every word in the passage that expresses action, namely verbs and nominalizations, ask yourself if the writer has made clear who performs that action. Odds are that “there’s the rub.” World-class bad judicial writing almost always fails to tell the reader who is doing what. Here’s an almost unbelievable example from a published case:

“The injection of the question of negligence in this suit for malicious prosecution even though when it was given no objection was made, so infected the trial that it would have to be returned for a new trial had the greater error of failure to prove a cause of action not occurred.”

Whew! I’ve italicized a few of those action words. And those words leave open questions: Who injected negligence? Who sued whom? Who failed to prove a cause of action?

Finally, on a different angle, let’s see if my correspondence course on ESP was worth $29.95: I predict that someone in your court—judge, judicial assistant, staff attorney, or law clerk—is a grammar wonk, willing to make seemingly gratuitous corrections at the drop of a red pen. The following worked for me 30 years ago; I hope it will work for you, too.

Get your chief judge to issue the same grammar handbook to everybody who works for the court. And make sure to get a grammar handbook, not a style guide like that written by Strunk and White. I recommend The McGraw-Hill Handbook of English Grammar and Usage by Lester and Beason—it’s cheap in paperback on Amazon.com. Then spread the word to all that, henceforth, any stylistic or grammar-based comments should be backed up by chapter and verse from the handbook. Most grammar wonks are as lazy as the rest of us; they just won’t bother. Also, a common handbook will solve common squabbles about the Oxford comma, punctuation of dates, and other minor-league issues that often cause much smoke but no fire.

Distinguished Professor Ron Hofer has taught judicial writing at The National Judicial College since 1994. In 2011 he received the NJC’s V. Robert Payant Award for Teaching Excellence. He taught writing and appellate courses at Marquette University Law School for more than 20 years. He also served as a senior district staff attorney for the Wisconsin Court of Appeals for more than 25 years.

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