Omission – A Legal Writing Guide

September 12, 2015

I often call myself a “technical writer.” In fact, most everything I do as an attorney involves “it matters” writing. To lay people attorneys are on their feet, back and forth. In almost every instance, however, the battle of wits follows written submissions on the facts and law. Even in trials, where the jury relies on the evidence it sees and hears, writing plays a role in determining what the jury sees and hears.

Omission, written by John McPhee for the September 14 issue of the New Yorker, is an essay about writing, and a most gentle cri de Coeur for less is more. Unintentionally, it’s also a legal writing manual.

Before I get to legal writing I must share a delightful vignette from the piece. Here’s Mr. McPhee on Ernest Hemingway’s theory of the iceberg, quoting from Death in the Afternoon thusly:

If a writer of prose knows enough about what he is writing about he may omit things that he knows and the reader, if the writer is writing truly enough, will have a feeling of those things as strongly as though the writer had stated them. The dignity of movement of an iceberg is due to only one-eighth of it being above water.

And how does Mr. McPhee leave the subject? This way:

In other words:

There are known knowns—there are things we know we know. We also know there are known unknowns. That is to say, we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know.

Yes, the influence of Ernest Hemingway evidently extended to the Pentagon.

So about the legal writing part of things. Mr. McPhee devotes about 20% of his essay to recounting greening, a process he learned at Time magazine. When a piece got returned, it likely said Green 5 or 8 or 14. Green referred to the pencil color the writer used for edits, and the number referenced the number of lines to be deleted. Mr. McPhee’s stories about this process are terrific, but I’m digressing.

Until I read Omission I did not know I was greening. Alas, I was, for with any substantial court filing, I go through a lengthy editing process, focused on having short paragraphs which end at or near the right margin. Lots of wordsmithing and grammar changes, as if I was working with clay, molding and shaping over and over again, until the document is just right (with almost no white space near the margin.)

Back in the day we had page limits. Now, we have word counts, font type and size standards, etc. Judges—like all readers—don’t know from word counts, and 12 is always less than 15. A judge with a pile of paper to read for tomorrow’s hearings will appreciate the attorney who uses fewer pieces of paper.

Some attorneys, with page or word limits, ask for leave to “go long,” either because they don’t edit, or because they think their very important position cannot be explained within the limits in the rules. Not me, so when we had page limits and fitting everything into 15 pages challenged, white space between the period and the right margin was wasted space. Now, that old habit has stuck with me. Judges get fewer pages, with short sentences and paragraphs, and very little white space on the right.

Greening provides other benefits. Looking at each word, sentence, paragraph, and section forces concentrated thinking about arguments. Are they clear? Do they flow? Am I repeating myself? Etc.

I have always worried about the time I spend on the editing process, especially the greening part. Concern about where a paragraph ends, left to right, seems trivial to me. On the other hand, greening forces me to make choices. And, while brevity alone cannot drive writing, it’s a worthy part of the mix.


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