Legal Writing

The Past Need Not Be Perfect — Part II

Sometimes, it’s better to be simple than perfect.
The past is one of those times.

You’re preparing a brief. Given the rules, you’re allowed 9,000 words (e.g., Supreme Court rule 37.3), or 30 pages, where the average page contains 300 words.

You write the first draft, and it contains 12,000 words, meaning you’ve got to cut (on average) every fourth word.

So, you combine two sections, cut some paragraphs, and revise some sentences, and your second draft contains 10,000 words. You’ve still got to cut (on average) one word per line.

How are you going to do that?

If you’ve got time to kill, you could comb through the draft and see which adjectives could be lost. Then you might be left with only 900 words to cut.

If you’re too busy to spend your time tracking non-essential adjectives, then you might pay a copy editor — someone who regularly reduces three column-inches to two and one-half — a fraction of what you charge per hour to identify which words to cut.

Now, you don’t want your average copy editor to touch your brief. She might cut something substantial without realizing it, and that would be a waste of your time and your money.

What you want is a copy editor familiar with briefs (merits, reply, or amicus), pleadings, petitions for cert, etc. You want someone who can tell what in your brief is substantial, and what is essential.

One of the things your editor is going to do is this: take what you cast in past-perfect tense, and recast it in present tense, or in simple-past tense. That’s a sure-fire way to cut extraneous words.

Let’s consider an example. Suppose you wrote this (in past-perfect tense):

“Plaintiff argues, based almost entirely upon federal law, that this section only comes into play when the responding party has established undue burden or expense.”

Then a skilled and experienced editor can quickly recast that like this (in present tense):

“Plaintiff argues, based almost entirely upon federal law, that this section only comes into play when the responding party establishes undue burden or expense.”

Bingo! A word is cut and the content is left unaltered.

Let’s look at another example. Suppose you wrote this (in past-perfect tense):

However, it also recognized that generally, in order to determine whether an employer has honored a contract, a Court will be required to engage in some measure of contract interpretation.

Then a copy editor can quickly recast that like this (in simple-past tense):

However, it also recognized that generally, in order to determine whether an employer honored a contract, a Court will be required to engage in some measure of contract interpretation.

Another word is cut, and the content remains unaltered.

Of course, a skilled and experienced editor could do much more to cut words and enhance the quality of your brief.

More on this tomorrow . . . .

Full post as published by Set in Style on April 30, 2009 (boomark / email).