Wordsmiths
will love Thomas R. Haggard's The Scrivener: A Primer
on Legal Writing. Professor Haggard gets right to
the meat of the coconut on page one: "Today, good
legal writing has four attributes: accuracy, brevity,
clarity, and eloquence." He touts plain English
in ten entertaining chapters, explaining not only the
rules, but the logic behind the rules.
The author's six-step
"recipe" for organizing a brief gives the
befuddled writer a concise outline for effective writing.
Step one: "Do not write a legal argument as if
it were an O. Henry short story, with a surprise ending.
State the conclusion in the first sentence." Professor
Haggard then walks the would-be writer through the process
of effective legal writing, step-by-step.
Professor Haggard does
not merely pontificate about the virtues of powerful
writing. Instead, he focuses on precise problem words
and suggests practical remedies for the lackluster brief.
"[T]he various form of to be (am, was, is, are,
were, been, and being) constitute the dullest set
of verbs in the English language. The next time you
encounter a particularly leaden, stolid, ponderous piece
of prose, count the number of to be verbs in it . .
. ." Try it; you will be amazed.
The Scrivener also
includes a broader discussion of forceful writing, instructing
on the effective use of simile, metaphor, and alliteration
as well as the more obscure paraleipsis (mentioning
something while disclaiming any mention of it) and prolepsis
(defusing an opponent's argument by raising it first).
Quotes from Charlotte Bronte, Roscoe Pound, Charles
Dickens and the like illustrate these rhetorical literary
devices and give the reader a welcome interlude.
Those who are brim full
of grammatical pet peeves will delight in the author's
discussion of such writing no-no's as and/or.
This "verbal monstrosity" and "mongrel
expression" is roundly expelled from the legal
writer's lexicon, if for no other reason than the "judicial
hostility it engenders." For those who defend and/or
as a legal term of art, Professor Haggard offers a sampling
of the "judicial invective" aimed at and/or:
"abominable invention," "weasel phrase,"
and "one of those inexcusable barbarisms which
was sired by indolence and damned by indifference."
The author's own pet peeves
are amusing and incisive. For example, the use of the
ironic or sarcastic quote is relegated to the letters-to-the
editor bin, with "no place in legal writing."
Thus, those tempted to refer to the opposing party's
"defense" or the plaintiff's "injury"
are put on notice that "[w]riters who must make
their points graphically rather than literally are poor
'writers.'"
Chapter V's section on
"Oft Misused Words" provides the legal writer
with a quick usage guide. Troublesome words that are
easily confused, such as affect/effect, among/between,
oral/verbal, imply/infer and lie/lay, are catalogued
alphabetically for ready reference. The detailed discussion
and explanation of when to use who and when to
use whom may be a bridge too far, but the basic
rule is easy to understand once the professor walks
the writer through it. The mystery of when to use which
and when to use that is also unraveled, with
a rather detailed explanation of restrictive and nonrestrictive
clauses (a concept perhaps better reserved for the hard-core
grammarians).
And we learn that Hobson's
choice does not mean a difficult choice.
It means no choice at all. "It derives from Thomas
Hobson, a Cambridgeshire liveryman, who told his customers
that they either had to take the horse nearest the door
or get no horse at all." (We also learn that it
is acceptable to begin a sentence with and occasionally.)
There is a helpful section
in the book on numeration. When do I spell it out and
when do I use the numeral? The rule is to spell out
the numbers zero through ninety-nine in
text and zero through nine in footnotes;
otherwise use numerals. This rule, though, has notable
exceptions which are set out in the book.
Pithy quotes from judges
and philosophers are interspersed throughout The
Scrivener to add levity as well as a warning to
the sloppy writer. A quote from Justice Oliver Wendell
Holmes warns: "I abhor, loathe and despise these
long discourses, and agree with Carducci the Italian
Poet ... that a man who takes half a page to say what
can be said in a sentence will be damned." A Mississippi
judge scolded a prosecutor for his drafting of a "grammatically
atrocious" indictment and excoriated the hapless
lawyer with this Shakespearean paraphrase: "It
cannot be gainsaid that all the perfumes of Arabia would
not eviscerate the grammatical stench emanating from
this indictment." Henderson v. State, 445
So.2d 1364, 1367 n.1 (1984).
The Scrivener is
a helpful and informative reference; but because it
is written in a conversational, easy style, it is also
fun to browse. Serious students of English grammar will
likely be surprised by a rule or two, and will doubtless
be gratified to see grammar gremlins exposed and set
right. Struggling legal writers will find palatable
lessons in basic composition.
Professor Haggard will
be a guest at the annual meeting of the Arkansas Bar
Association June 11 14. He will lead a two-hour
seminar on effective legal writing. This will provide
an ideal setting for both the accomplished legal writer
and the unsteady beginner to hone writing skills, to
resolve those niggling punctuation questions, and to
expose the few remaining grammatical faux pas Professor
Haggard has not yet had the chance to address. It should
be fun!•
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