Correcting Students’ Usage Errors Without Making Errors of Our Own:

A law professor who directs an adjunct-taught legal writing program e-mailed me this, in response to my article on the subject:

[T]he phenomenon you describe is one of my biggest hurdles. I spend a significant amount of time warning my adjuncts not to “correct” anything they can’t demonstrably show, through a reliable source, to be wrong. I also advise them to do just what you say: mark sticky usage or spelling as unwise, perhaps, or likely to inflame passions but not “wrong” unless it truly is, and to look everything up before marking it even if they’re certain they are correct. I still see “forgo” “corrected” to “forego” when it means to go without, and phrases like “have carefully reviewed” edited to put “carefully” after “reviewed,” for who knows what reason. Sigh. Even if these were actual mistakes, our students certainly have more important things to worry about in trying to improve their writing....

[Also,] I occasionally am hired by big law firms to tutor associates in legal writing. One downtown firm asked me to put on lunchtime presentations for the associates, but to begin with a session for the partners, to train them how to be effective writing coaches. I thought this was a wonderful idea. Among the things I included in that presentation was a general admonition along the lines of what you wrote: don’t mark personal preferences but rather stick to actual mistakes, for all the reasons you cite as well as some of my own. A partner objected strenuously. He said, and I kid you not, “One of the reasons I became a partner was to impose my personal preferences on others.” I was not asked back.

Houston Lawyer:
I believe a legal writing coach and a partner in a law firm are in a different place. While the quoted partner is an idiot, associates need to learn partner's styles and emulate them. They will look much more favorably on writing that conforms to their expectations.
6.29.2009 2:28pm
FantasiaWHT:
I have to agree with that partner to some extent... if they like a certain style, they should expect their associates to write that way and should make corrections along those lines to show associates what's expected.
6.29.2009 2:31pm
CJColucci:
I would have no problem with a partner who simply imposed personal preferences because they are personal preferences and he's higher on the food chain than I am. What I have had problems with is people who seek to impose personal preferences while not recognizing them as such and treating differing preferences as wrong or deficient. Especially when the personal preferences themselves are often wrong or deficient.
6.29.2009 2:32pm
Chicago:
What's wrong with the partner's view? I have numerous writing quirks that I have developed over the years, many of which I couldn't defend as a matter of "correct" (whatever that means) usage. But I would enforce them nonetheless.
6.29.2009 2:35pm
Guest101:
I don't think the partner was wrong. Writing a brief is not an academic exercise, and the partner is quite justified in insisting that, since his name is going at the top of the brief, his stylistic preferences will take priority. It is frustrating-- and I've encountered this situation frequently-- when partners fail to recognize the distinction between a failure to comply with their idiocyncratic preference and an objective error, but in those situations like all others, the wise associate simply makes the change without arguing the point.
6.29.2009 2:37pm
Dave N (mail):
I have said it before. Legal writing is one of the most important skills law schools are supposed to teach. However, it is also the one most poorly taught.

Kudos to EV for recognizing its importance.
6.29.2009 2:40pm
yankev (mail):

I spend a significant amount of time warning my adjuncts not to “correct” anything they can’t demonstrably show, through a reliable source, to be wrong. I also advise them to do just what you say: mark sticky usage or spelling as unwise, perhaps, or likely to inflame passions but not “wrong” unless it truly is


Back in 1976, I wrote a law review petition that, among its other flaws, stated that the law forbids evicting a residential tenant in retaliation for reporting a building code violation. An editor told me in very condescending tones that I should have known enough to write "prohibits" instaed, because forbid always connotes an irrational or arbitrary action.

About 25 years ago, a partner edited my brief by replacing all of my active verbs with passive voice, splicing sentences together with conjunctions, and watering down everything that made the brief readable or vigorous. He told me that judges view short active sentences as a sign of overconfidence, and they rule against you as a result.

Incidents like these create the salutary urge to become one's own boss.
6.29.2009 2:45pm
Owen Hutchins (mail):

and phrases like “have carefully reviewed” edited to put “carefully” after “reviewed,” for who knows what reason.



Possibly the dreaded Split Infinitive? A lot of people assume it's a no no.
6.29.2009 2:52pm
Cory J (mail):

What's wrong with the partner's view? I have numerous writing quirks that I have developed over the years, many of which I couldn't defend as a matter of "correct" (whatever that means) usage. But I would enforce them nonetheless.


I don't have a problem with it either, but the firm asked the professor to teach the partners how to become effective writing coaches.

If the partners are simply going to impose personal preferences, the professor's presentation is useless. It'd be like an efficiency expert called in to evaluate a process, only to have the designers tell the expert that everything is just fine the way it is. I'd be frustrated, too.
6.29.2009 2:55pm
mentor:
Of course a wise associate will heed a partner's preferences. But associates as a group have much more important things to be learning to improve their writing. The wise partner will not clog the assocates' brain with personal preferences, particularly when the next partner the associate works with will expect something different . . . . And, as others have noted, many partners don't recognize that their preferences are just that, stylistic choices as opposed to actual "rules" that make the reader's job easier.
6.29.2009 2:58pm
Jim Rhoads (mail):
When editing and mentoring lawyers' writing, I try to get straight what my role is. When someone has drafted a letter or brief for my signature, I revise it so it is in my preferred voice and style. But when I am reviewing a letter for another author's signature, I follow EV's rule, and do not impose my views of correct voice or style. If I do spot grammatical quirks that I believe might be ambiguous or misconstrued, I generally note that in the margin with a question mark.
6.29.2009 2:59pm
Downfall:
To Houston lawyer and all those defending the partner's view: Surely it's not reasonable to expect associates to, on top of everything else, memorize or keep records of the quirks of every partner they work with. Except in very small firms or departments, it would require either a photographic memory or an elaborate database, and it would accomplish nothing other than to service the partners' vanity. Absurd.
6.29.2009 3:03pm
mentor:
One reader comments that perhaps writers think "have carefully reviewed" is a split infinitive and edit it accordingly. This is a perfect example of the wisdom of EV's article. An infinitive is a "to" form of a verb -- "to swim," "to run," etc. "Have reviewed" is not an infinitive. If someone moves "carefully" to follow "reviewed" simply because they think the verb form is an infinitive and are trying to follow an outdated rule about infinitives, they are both behind the times and simply wrong. That's why, as EV, says, editors should look up everything before they make "corrections."
6.29.2009 3:09pm
CDU (mail) (www):
Writing a brief is not an academic exercise, and the partner is quite justified in insisting that, since his name is going at the top of the brief, his stylistic preferences will take priority.


Perhaps if a partner wants a brief to reflect his stylistic preferences, he ought to write it himself? One of the things that disturbs me about the legal profession is how accepted it is that an underling (an associate or clerk) will do the work and a bigwig (partner or judge) will put their name on it. If the clerk or associate write the brief or decision, put their name on it and say that the partner or judge approves it.
6.29.2009 3:12pm
Chicago:
Downfall writes:


Surely it's not reasonable to expect associates to, on top of everything else, memorize or keep records of the quirks of every partner they work with.


I can't speak for anyone else, but I try to remember (and assume that I am expected to remember) the distinctive writing habits of the 10 or so partners I routinely work with. If nothing else, receiving the same types of edits on multiple drafts starts getting annoying after a while. I'm sure it would be different if I rarely worked with a particular partner.
6.29.2009 3:17pm
rosetta's stones:
About 25 years ago, a partner edited my brief by replacing all of my active verbs with passive voice, splicing sentences together with conjunctions, and watering down everything...

Homicide. There would have been a homicide that day. I would have been taken away in chains, but one less mealy mouthed lawyer would have been around, scourging mankind.
6.29.2009 3:18pm
Downfall:
Chicago-- Perhaps I'm too new at this, but I don't think I could keep current with my specialty (bankruptcy law), do all the billable work expected of me, do all the non-billable work expected of me, and keep track of the quirks and nuances of ten distinct conflicting writing styles. Do you take notes, or do you just have a good memory?
6.29.2009 3:26pm
interruptus:
People have a reasonable point that partners might want briefs with their names on them to have particular styles, but I think this issue happens in situations without an excuse like that. There are plenty of professors who try to impose their preferences on students writing essays, for example, despite no particularly good reason that a student's writing style needs to conform to the professor's. Some are probably just ignorant that their preferences aren't actually prescriptively the only correct way of writing English, but I think some are conscious of that, and it's simple abuse of power, using a position of authority to try to spread their preferences about how English should be written.
6.29.2009 3:28pm
KenB (mail):
As an in-house lawyer, I have clients who want to reinsert passive voice and legalease where I have edited it out. And they complain that lawyers are incomprehensible.
6.29.2009 3:29pm
Randy R. (mail):
Having worked in a gov't appellate agency for 12 years, I can attest to the fact that every supervisor has his or her own style, and that each supervisor has their own style as well. (There are many layers of management in the gov't, which is one reason it is so inefficient).

So, the poor attorney has to use the exact words and phrases that the supervisor requires. If you don't, it's 'wrong' or 'unprofessional'. One supervisor actually told me that the word 'otherwise' is an unprofessional word! So if you don't conform, your yearly evaluation is marked down for poor writing skills.

But even if you get down your supervisor's style, that still leaves you with the top guys style, and that might be different. So yes, you write a memo, your supervisor sends it back to you all marked up with changes, which you make, and then is gets passed higher up the chain and is sent back to you with further marks made. Everyone insists you are an idiot who can't write because you have to rewrite a memo several times, even though nothing of substance has changed.

None of their names actually goes on the final product, and it is signed by the judges. The judges actually make very few changes, so you have all these divisions with distinctive styles but all signed by the same few judges. Yet everyone thinks the others are completely and totally wrong and/or idiots who can't write.

Of course, the best supervisors I ever had made few or no changes, and the memos were signed without any problems by the judges.

And this is for a very narrow act that deals with one issue for all cases.

Ego and insecurities. That's all it is. Whether you are a partner in a firm or a supervisor in an agency, it's all about forcing your style upon someone else because you are so insecure in your own writing.
6.29.2009 3:42pm
CJColucci:
Jim Rhoads, can I come work for you?
6.29.2009 4:21pm
JimmyL (mail):
I have said it before. Legal writing is one of the most important skills law schools are supposed to teach. However, it is also the one most poorly taught. Kudos to EV for recognizing its importance.

I agree. But part of the problem is that legal writing professors are treated like second class professors (no tenure track, lower pay, etc.). That difference only reinforces the idea that legal writing is not that important. And I'd bet that it prevents some people who would be good legal writing professors from pursuing that field.
6.29.2009 4:27pm
marksleen (mail):
CDU, as an associate myself, I have come to the general understanding that, if you want to know who researched and wrote the substance of a brief, look at the name at the bottom of the signature block.
6.29.2009 4:33pm
Howland S. Russell, Sr. (mail) (www):
..."for who knows what reason. Sigh."

I guess you need to be as old as I am to recall learning how to diagram a sentence and then explain the rules of grammar that applied.
6.29.2009 4:42pm
Hutz:
Fowler says split infinitives are fine. I agree, but if I'm submitting a brief, I don't want the judge (or clerk) to even briefly find himself distracted from the substance of my argument by my split infinitives.

(I mind less if readers of blogs are distracted in that way.)

If an experienced adjunct or partner thinks something is wrong, he may be incorrect, but he is probably not alone.
6.29.2009 4:44pm
mariner:
Yankev:
About 25 years ago, a partner edited my brief by replacing all of my active verbs with passive voice, splicing sentences together with conjunctions, and watering down everything that made the brief readable or vigorous. He told me that judges view short active sentences as a sign of overconfidence, and they rule against you as a result.

I am a disciple of Strunk and White, and my college curriculum including a Business Writing class stressing clarity and conciseness.

Image my dismay upon encountering the professor of a senior-level management course, who insisted that we signal our big complex ideas with big, complex sentences.

But you did. ;)

Is it possible that the partner understood the thinking of judges who would be reading that brief?
6.29.2009 4:50pm
Assistant Village Idiot (mail) (www):
The difficulty is the confusion between what a person thinks is wrong and the much smaller set of expressions that are actually wrong. Sometimes partners think their preferences are "right." Sometimes they don't care but believe others - such as judges - believe them to be right, and so use them as a tactical advantage, or so as not to offend. Still others believe that their customers want them that way and are simply following the wishes of those who hired them. It's not always easy to tell who the misinformed person who is imposing his will on others, as he is sometimes hypothetical. Our hospital attorneys insist on "shall" versus "will" in some documents, not based on the older distinction (which they often reverse!) but because it "sounds" more directive or emphatic.

There is a parallel phenomenon among elemetary school teachers who insist on good handwriting, all pointing to the teachers in the next grade who "really care" about it, or to vague "people" who judge you on neatness. They will not own up to the fact that they themselves care deeply about penmanship for whatever reason.
6.29.2009 4:50pm
Anon1111:
What's wrong with a partner "correcting" an associates "mistake" that is nothing more than conforming an associates writing to the partner's personal preference, rather than to improve the legal quality of a document?

It costs money, my money that I'm paying my outside counsel. I don't care if the associate likes to spell "legal brief" with four m's and a silent q, if the change that a partner makes is for any reason other than to improve the legal quality of the document, then they are wasting my money, and they should stop it.

The most important day in the life of an associate (speaking from personal experience) is learning that partner X made change Y because he or she is just used to doing it that way, not because the change is right.
6.29.2009 4:51pm
mariner:
I'm still aspiring.

Sheesh.
6.29.2009 4:52pm
Dave N (mail):
JimmyL,

You are correct about the cause. Law schools do not think legal writing is particularly important. At my law school, legal writing was taught by a professor outside the tenure track with our work graded and edited by 3Ls who themselves had few, if any, legal writing skills.

Because "everyone does it," legal pleadings are full of such banalities as "comes now", "party of the first part," and, my absolute favorite for the conclusion of affidavits, "further your affiant sayeth naught."

(Outside of pornography, when is the last time you actually ever heard someone SAY "comes now"?)
6.29.2009 4:57pm
yankev (mail):

Is it possible that the partner understood the thinking of judges who would be reading that brief?
Yes. But given his track record, unlikely.
6.29.2009 5:20pm
Mikey NTH (mail):
I just finished your article, Prof. Volokh, and it is a neat reference. One thing I want to add with the use of 'they' and 'their' as a singular pronoun. English does not have a gender neutral singular pronoun, so 'they' and 'their' is imported to fill the gap.
6.29.2009 6:08pm
Public_Defender (mail):

When editing and mentoring lawyers' writing, I try to get straight what my role is. When someone has drafted a letter or brief for my signature, I revise it so it is in my preferred voice and style. But when I am reviewing a letter for another author's signature, I follow EV's rule, and do not impose my views of correct voice or style. If I do spot grammatical quirks that I believe might be ambiguous or misconstrued, I generally note that in the margin with a question mark.

We have a winner. Impose your personal preferences when someone is drafting for your signature. But if you've hired smart professionals, let them develop their own style for their own work. Otherwise, you are not getting all you paid for. In my office, we have a hard enough time keeping talented writers at the rates we pay. Nit picking briefs to stroke a supervisor's ego is a luxury we can't afford. I guess I'll just have leave this particular inefficiency for the private sector to deal with.
6.29.2009 6:17pm
Eugene Volokh (www):
Howland S. Russell, Sr.: Maybe I'm misunderstanding you, but exactly what rule of grammar prohibits "have carefully reviewed"?
6.29.2009 6:57pm
dearieme:
Carefully have I reviewd this.....

There are limits.
6.29.2009 7:15pm
Mark O (mail):
I, for one, would be pleased to learn Roger Angell's personal preferences, or to be shown what works. Some lawyers write perfectly acceptable prose that induces sleep. Others write in such a way as to make it easy to agree with them.

The latter make a lot of money.
6.29.2009 7:41pm
TKN (www):
It also ignores the whole aspect that partners will mark up a document to justify time spent on it. So, frankly, even if you turn in a good document, you will get a lot of retarded small changes just to justify the billing.

In fact, I'd imagine this is where a lot of the nonsense comes from - first we train it in law school with a bunch of student-run, unprofessional, non peer-reviewed journals that focus on form over content. Then we move on to firms where every incentive is to continue agonizing over italicized periods and trivial details to maximize bills... It is, of course, exacerbated by judges who then impose personal preferences onto interpretation, forcing more nonsense down the chain (I am thinking of a patent case where the judge said mounted meant there was a physical attachment, apparently never having heard of a horse).

Essentially the professor should probably hand out this article: http://www.guardian.co.uk/media/2008/jul/23/mediamonkey and discuss whether the edits are being made just for the sake of editing or for some deeper purpose.
6.29.2009 8:02pm
Where'ssldsklsdkl (mail):
Before giving partners' writing lessons they should think about management lessons.
6.29.2009 9:11pm
mariner:
(Outside of pornography, when is the last time you actually ever heard someone SAY "comes now"?

An episode of "The Practice".
6.29.2009 9:17pm
Donald Clarke (www):

Even if these were actual mistakes, our students certainly have more important things to worry about in trying to improve their writing....


I'm surprised nobody has commented on this remark, in which Prof. Volokh's correspondent seems to say that even actual mistakes of grammar, spelling, etc. shouldn't be corrected. Sure, proper arguments and structure are probably more important, but just because I'm in a cancer ward, that doesn't mean I shouldn't get a band-aid for my cut finger. This is especially true given the likelihood that readers will be more irritated and distracted by actual or perceived mistakes in spelling and grammar than by problems with structure or argumentation.
6.29.2009 10:05pm
Displaced Midwesterner:
The partner's view is a good example of the legal profession's tendency to stress pointless autocracy and formalism over efficiency and persuasiveness. Even if the associate's name is not going to go on the brief (although why it can't, unless he or she's not a bar member yet, is a mystery - multiple attorneys can sign on to a brief), there is no good reason to waste time imposing personal preferences. I guarantee that very few judges will look at the brief and think "This just doesn't sound like Frank's writing." Instead, the exercise will just waste time and money. And the writing will probably come out worse. Superimposing a series of shallow edits over someone else's work will rarely produce a clearer product. I'd imagine it would help stroke supervisory egos more and improve an associate's chances at the brass ring, but it certainly doesn't serve any useful end.
6.29.2009 10:10pm
ericmess (mail):
I remember drafting a complaint my first year out of law school alleging that a car traveled in a north-bound direction only to be yelled at and replaced with "northerly direction." What a prick. Thanks God I'm outta that place.
6.30.2009 12:07am
huskylaw (mail):
I had a professor in college mark 'evince' as 'not a word'. I told him that it was a word, to which he replied that taking a noun and making it into a verb just isn't good writing. I'm guessing that he was thinking evince was a bastard child of evidence, but it's been a verb since latin. I guess online dictionaries are too difficult for some people to manage...
6.30.2009 12:52am
AlanDownunder (mail):
I agree. Address the wrong before the merely infelicitous.

Speaking of the latter, in roughly increasing measure of felicity -

1. "I occasionally am hired by big law firms"
2. I am hired occasionally by big law firms
3. I am hired by big law firms occasionally
4. Occasionally I am hired by big law firms
5. I am occasionally hired by big law firms

(the only rating I'm really sure of here is 1.)
6.30.2009 4:10am
dearieme:
" a car traveled in a north-bound direction only to be yelled at and replaced with "northerly direction." Oh for goodness sake, what pompous guff. The car was travelling north .......
6.30.2009 8:08am
Owen H. (mail):

One reader comments that perhaps writers think "have carefully reviewed" is a split infinitive and edit it accordingly. This is a perfect example of the wisdom of EV's article. An infinitive is a "to" form of a verb -- "to swim," "to run," etc. "Have reviewed" is not an infinitive. If someone moves "carefully" to follow "reviewed" simply because they think the verb form is an infinitive and are trying to follow an outdated rule about infinitives, they are both behind the times and simply wrong. That's why, as EV, says, editors should look up everything before they make "corrections."


My statement was that it was a possible misapplication of a rule that does not actually exist to begin with. Forgive me if that wasn't clear.
6.30.2009 1:08pm
Stuart M. (mail):
I'm a partner in a smallish firm. I definitely have my own style, and it developed not because I want to be quirky but because I think it's effective. I try to make stuff easy to read and - amazingly enough - persuasive. I end up doing a lot of my own writing precisely because it's the most effective method of quality control.

When I ask an associate to draft part of a brief, my concern is less with its style than with its effectiveness: is it clear? is it persuasive? does it lead with the strongest arguments? is it readable? Most associates' writing is over-inclusive and repetitive. My objective when I edit their stuff is usually to add by subtraction. Usually the final product leaves their words in place, but rearranged and severely pruned. When I give them my markup, I want them to see that (1) yes, they got the point right (unless they didn't, which usually doesn't happen and raises its own set of issues); (2) they can improve how they present it; and (3) I treated their professional work with respect. They work here now and probably will be here for a while, so I want their work to improve -- and that is far more important than gratifying my own ego on any individual brief.

I freely confess that when I'm done editing, the product reads almost as if I had written it. Coincidence? Nope. But so far the associates seem to enjoy working with me and don't mind coming back for more assignments. So it can't be all that bad.
6.30.2009 1:17pm

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