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Some More Tips on Legal Drafting

Make the paragraph the unit of composition: one paragraph to each topic.

If the subject on which you are writing is of slight extent, or if you intend to treat it very briefly, there may be no need of subdividing it into topics. Thus a brief descripttion, a brief summary of a literary work, a brief account of a single incident, a narrative merely outlining an action, the setting forth of a single idea, any one of these is best written in a single paragraph. After the paragraph has been written, it should be examined to see whether subdivision will not improve it.

Ordinarily, however, a subject requires subdivision into topics, each of which should be made the subject of a paragraph. The object of treating each topic in a paragraph by itself is, of course, to aid the reader. The beginning of each paragraph is a signal to him that a new step in the development of the subject has been reached.

The extent of subdivision will vary with the length of the composition. For example, a short notice of a book or poem might consist of a single paragraph. One slightly longer might consist of two paragraphs:

Account of the work.
Critical discussion.

A report on a poem, written for a class in literature, might consist of seven paragraphs:

Facts of composition and publication.
Kind of poem; metrical form.
Subject.
Treatment of subject.
For what chiefly remarkable.
Wherein characteristic of the writer.
Relationship to other works.

The contents of paragraphs C and D would vary with the poem. Usually, paragraph C would indicate the actual or imagined circumstances of the poem (the situation), if these call for explanation, and would then state the subject and outline its development. If the poem is a narrative in the third person throughout, paragraph C need contain no more than a concise summary of the action. Paragraph D would indicate the leading ideas and show how they are made prominent, or would indicate what points in the narrative are chiefly emphasized.

A novel might be discussed under the heads:

Setting.
Plot.
Characters.
Purpose.

A historical event might be discussed under the heads:

What led up to the event.
Account of the event.
What the event led up to.

In treating either of these last two subjects, the writer would probably find it necessary to subdivide one or more of the topics here given.

As a rule, single sentences should not be written or printed as paragraphs. An exception may be made of sentences of transition, indicating the relation between the parts of an exposition or argument.

In dialogue, each speech, even if only a single word, is a paragraph by itself; that is, a new paragraph begins with each change of speaker. The application of this rule, when dialogue and narrative are combined, is best learned from examples in well-printed works of fiction.

As a rule, begin each paragraph with a topic sentence; end it in conformity with the beginning.

Again, the object is to aid the reader. The practice here recommended enables him to discover the purpose of each paragraph as he begins to read it, and to retain the purpose in mind as he ends it. For this reason, the most generally useful kind of paragraph, particularly in exposition and argument, is that in which

the topic sentence comes at or near the beginning;
the succeeding sentences explain or establish or develop the statement made in the topic sentence; and
the final sentence either emphasizes the thought of the topic sentence or states some important consequence.

Ending with a digression, or with an unimportant detail, is particularly to be avoided.

If the paragraph forms part of a larger composition, its relation to what precedes, or its function as a part of the whole, may need to be expressed. This can sometimes be done by a mere word or phrase (again; therefore; for the same reason) in the topic sentence. Sometimes, however, it is expedient to precede the topic sentence by one or more sentences of introduction or transition. If more than one such sentence is required, it is generally better to set apart the transitional sentences as a separate paragraph.

According to the writer's purpose, he may, as indicated above, relate the body of the paragraph to the topic sentence in one or more of several different ways. He may make the meaning of the topic sentence clearer by restating it in other forms, by defining its terms, by denying the converse, by giving illustrations or specific instances; he may establish it by proofs; or he may develop it by showing its implications and consequences. In a long paragraph, he may carry out several of these processes.

1 Now, to be properly enjoyed, a walking tour should be gone upon alone.	1 Topic sentence.
2 If you go in a company, or even in pairs, it is no longer a walking tour in anything but name; it is something else and more in the nature of a picnic.	2 The meaning made clearer by denial of the contrary.
3 A walking tour should be gone upon alone, because freedom is of the essence; because you should be able to stop and go on, and follow this way or that, as the freak takes you; and because you must have your own pace, and neither trot alongside a champion walker, nor mince in time with a girl.	3 The topic sentence repeated, in abridged form, and supported by three reasons; the meaning of the third ("you must have your own pace") made clearer by denying the converse.
4 And you must be open to all impressions and let your thoughts take colour from what you see.	4 A fourth reason, stated in two forms.
5 You should be as a pipe for any wind to play upon.	5 The same reason, stated in still another form.
6 "I cannot see the wit," says Hazlitt, "of walking and talking at the same time.	6-7 The same reason as stated by Hazlitt.
7 When I am in the country, I wish to vegetate like the country," which is the gist of all that can be said upon the matter.	6-7 The same reason as stated by Hazlitt.
8 There should be no cackle of voices at your elbow, to jar on the meditative silence of the morning.	8 Repetition, in paraphrase, of the quotation from Hazlitt.
9 And so long as a man is reasoning he cannot surrender himself to that fine intoxication that comes of much motion in the open air, that begins in a sort of dazzle and sluggishness of the brain, and ends in a peace that passes comprehension.—Stevenson, Walking Tours.	9 Final statement of the fourth reason, in language amplified and heightened to form a strong conclusion.

1 It was chiefly in the eighteenth century that a very different conception of history grew up.	1 Topic sentence.
2 Historians then came to believe that their task was not so much to paint a picture as to solve a problem; to explain or illustrate the successive phases of national growth, prosperity, and adversity.	2 The meaning of the topic sentence made clearer; the new conception of history defined.
3 The history of morals, of industry, of intellect, and of art; the changes that take place in manners or beliefs; the dominant ideas that prevailed in successive periods; the rise, fall, and modification of political constitutions; in a word, all the conditions of national well-being became the subjects of their works.	3 The definition expanded.
4 They sought rather to write a history of peoples than a history of kings.	4 The definition explained by contrast.
5 They looked especially in history for the chain of causes and effects.	5 The definition supplemented: another element in the new conception of history.
6 They undertook to study in the past the physiology of nations, and hoped by applying the experimental method on a large scale to deduce some lessons of real value about the conditions on which the welfare of society mainly depend.—Lecky, The Political Value of History.	6 Conclusion: an important consequence of the new conception of history.

In narration and descripttion the paragraph sometimes begins with a concise, comprehensive statement serving to hold together the details that follow.

The breeze served us admirably.

The campaign opened with a series of reverses.

The next ten or twelve pages were filled with a curious set of entries.

But this device, if too often used, would become a mannerism. More commonly the opening sentence simply indicates by its subject with what the paragraph is to be principally concerned.

At length I thought I might return towards the stockade.

He picked up the heavy lamp from the table and began to explore.

Another flight of steps, and they emerged on the roof.

The brief paragraphs of animated narrative, however, are often without even this semblance of a topic sentence. The break between them serves the purpose of a rhetorical pause, throwing into prominence some detail of the action.

Use the active voice.

The active voice is usually more direct and vigorous than the passive:

I shall always remember my first visit to Boston.

This is much better than

My first visit to Boston will always be remembered by me.

The latter sentence is less direct, less bold, and less concise. If the writer tries to make it more concise by omitting "by me,"

My first visit to Boston will always be remembered,

it becomes indefinite: is it the writer, or some person undisclosed, or the world at large, that will always remember this visit?

This rule does not, of course, mean that the writer should entirely discard the passive voice, which is frequently convenient and sometimes necessary.

The dramatists of the Restoration are little esteemed to-day.

Modern readers have little esteem for the dramatists of the Restoration.

The first would be the right form in a paragraph on the dramatists of the Restoration; the second, in a paragraph on the tastes of modern readers. The need of making a particular word the subject of the sentence will often, as in these examples, determine which voice is to be used.

The habitual use of the active voice, however, makes for forcible writing. This is true not only in narrative principally concerned with action, but in writing of any kind. Many a tame sentence of descripttion or exposition can be made lively and emphatic by substituting a transitive in the active voice for some such perfunctory expression as there is, or could be heard.

There were a great number of dead leaves lying on the ground.	Dead leaves covered the ground.
The sound of the falls could still be heard.	The sound of the falls still reached our ears.
The reason that he left college was that his health became impaired.	Failing health compelled him to leave college.
It was not long before he was very sorry that he had said what he had.	He soon repented his words.

As a rule, avoid making one passive depend directly upon another.

Gold was not allowed to be exported.	It was forbidden to export gold (The export of gold was prohibited).
He has been proved to have been seen entering the building.	It has been proved that he was seen to enter the building.

In both the examples above, before correction, the word properly related to the second passive is made the subject of the first.

A common fault is to use as the subject of a passive construction a noun which expresses the entire action, leaving to the verb no function beyond that of completing the sentence.

A survey of this region was made in 1900.	This region was surveyed in 1900.
Mobilization of the army was rapidly carried out.	The army was rapidly mobilized.
Confirmation of these reports cannot be obtained.	These reports cannot be confirmed.

Compare the sentence, "The export of gold was prohibited," in which the predicate "was prohibited" expresses something not implied in "export."

Put statements in positive form.

Make definite assertions. Avoid tame, colorless, hesitating, non-committal language. Use the word not as a means of denial or in antithesis, never as a means of evasion.

He was not very often on time.	He usually came late.
He did not think that studying Latin was much use.	He thought the study of Latin useless.
The Taming of the Shrew is rather weak in spots. Shakespeare does not portray Katharine as a very admirable character, nor does Bianca remain long in memory as an important character in Shakespeare's works.	The women in The Taming of the Shrew are unattractive. Katharine is disagreeable, Bianca insignificant.

The last example, before correction, is indefinite as well as negative. The corrected version, consequently, is simply a guess at the writer's intention.

All three examples show the weakness inherent in the word not. Consciously or unconsciously, the reader is dissatisfied with being told only what is not; he wishes to be told what is. Hence, as a rule, it is better to express a negative in positive form.

not honest	dishonest
not important	trifling
did not remember	forgot
did not pay any attention to	ignored
did not have much confidence in	distrusted

The antithesis of negative and positive is strong:

Not charity, but simple justice.

Not that I loved Caesar less, but Rome the more.

Negative words other than not are usually strong:

The sun never sets upon the British flag.

Omit needless words.

Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell.

Many expressions in common use violate this principle:

the question as to whether	whether (the question whether)
there is no doubt but that	no doubt (doubtless)
used for fuel purposes	used for fuel
he is a man who	he
in a hasty manner	hastily
this is a subject which	this subject
His story is a strange one.	His story is strange.

In especial the expression the fact that should be revised out of every sentence in which it occurs.

owing to the fact that	since (because)
in spite of the fact that	though (although)
call your attention to the fact that	remind you (notify you)
I was unaware of the fact that	I was unaware that (did not know)
the fact that he had not succeeded	his failure
the fact that I had arrived	my arrival

See also under case, character, nature, system in Chapter V.

Who is, which was, and the like are often superfluous.

His brother, who is a member of the same firm	His brother, a member of the same firm
Trafalgar, which was Nelson's last battle	Trafalgar, Nelson's last battle

As positive statement is more concise than negative, and the active voice more concise than the passive, many of the examples given under Rules 11 and 12 illustrate this rule as well.

A common violation of conciseness is the presentation of a single complex idea, step by step, in a series of sentences which might to advantage be combined into one.

Macbeth was very ambitious. This led him to wish to become king of Scotland. The witches told him that this wish of his would come true. The king of Scotland at this time was Duncan. Encouraged by his wife, Macbeth murdered Duncan. He was thus enabled to succeed Duncan as king. (55 words.)

Encouraged by his wife, Macbeth achieved his ambition and realized the prediction of the witches by murdering Duncan and becoming king of Scotland in his place. (26 words.)

Avoid a succession of loose sentences.

This rule refers especially to loose sentences of a particular type, those consisting of two co-ordinate clauses, the second introduced by a conjunction or relative. Although single sentences of this type may be unexceptionable (see under Rule 4), a series soon becomes monotonous and tedious.

An unskilful writer will sometimes construct a whole paragraph of sentences of this kind, using as connectives and, but, and less frequently, who, which, when, where, and while,these last in non-restrictive senses (see under Rule 3).

The third concert of the subscripttion series was given last evening, and a large audience was in attendance. Mr. Edward Appleton was the soloist, and the Boston Symphony Orchestra furnished the instrumental music. The former showed himself to be an artist of the first rank, while the latter proved itself fully deserving of its high reputation. The interest aroused by the series has been very gratifying to the Committee, and it is planned to give a similar series annually hereafter. The fourth concert will be given on Tuesday, May 10, when an equally attractive programme will be presented.

Apart from its triteness and emptiness, the paragraph above is bad because of the structure of its sentences, with their mechanical symmetry and sing-song. Contrast with them the sentences in the paragraphs quoted under Rule 10, or in any piece of good English prose, as the preface (Before the Curtain) to Vanity Fair.

If the writer finds that he has written a series of sentences of the type described, he should recast enough of them to remove the monotony, replacing them by simple sentences, by sentences of two clauses joined by a semicolon, by periodic sentences of two clauses, by sentences, loose or periodic, of three clauses—whichever best represent the real relations of the thought.

Express co-ordinate ideas in similar form.

This principle, that of parallel construction, requires that expressions of similar content and function should be outwardly similar. The likeness of form enables the reader to recognize more readily the likeness of content and function. Familiar instances from the Bible are the Ten Commandments, the Beatitudes, and the petitions of the Lord's Prayer.

The unskilful writer often violates this principle, from a mistaken belief that he should constantly vary the form of his expressions. It is true that in repeating a statement in order to emphasize it he may have need to vary its form. For illustration, see the paragraph from Stevenson quoted under Rule 10. But apart from this, he should follow the principle of parallel construction.

Formerly, science was taught by the textbook method, while now the laboratory method is employed.

Formerly, science was taught by the textbook method; now it is taught by the laboratory method.

The left-hand version gives the impression that the writer is undecided or timid; he seems unable or afraid to choose one form of expression and hold to it. The right-hand version shows that the writer has at least made his choice and abided by it.

By this principle, an article or a preposition applying to all the members of a series must either be used only before the first term or else be repeated before each term.

The French, the Italians, Spanish, and Portuguese	The French, the Italians, the Spanish, and the Portuguese
In spring, summer, or in winter	In spring, summer, or winter (In spring, in summer, or in winter)

Correlative expressions (both, and; not, but; not only, but also; either, or; first, second, third; and the like) should be followed by the same grammatical construction. Many violations of this rule can be corrected by rearranging the sentence.

It was both a long ceremony and very tedious.	The ceremony was both long and tedious.
A time not for words, but action	A time not for words, but for action
Either you must grant his request or incur his ill will.	You must either grant his request or incur his ill will.
My objections are, first, the injustice of the measure; second, that it is unconstitutional.	My objections are, first, that the measure is unjust; second, that it is unconstitutional.

See also the third example under Rule 12 and the last under Rule 13.

It may be asked, what if a writer needs to express a very large number of similar ideas, say twenty? Must he write twenty consecutive sentences of the same pattern? On closer examination he will probably find that the difficulty is imaginary, that his twenty ideas can be classified in groups, and that he need apply the principle only within each group. Otherwise he had best avoid the difficulty by putting his statements in the form of a table.

Keep related words together.

The position of the words in a sentence is the principal means of showing their relationship. The writer must therefore, so far as possible, bring together the words, and groups of words, that are related in thought, and keep apart those which are not so related.

The subject of a sentence and the principal verb should not, as a rule, be separated by a phrase or clause that can be transferred to the beginning.

Wordsworth, in the fifth book of The Excursion, gives a minute descripttion of this church.	In the fifth book of The Excursion,Wordsworth gives a minute descripttion of this church.
Cast iron, when treated in a Bessemer converter, is changed into steel.	By treatment in a Bessemer converter, cast iron is changed into steel.

The objection is that the interposed phrase or clause needlessly interrupts the natural order of the main clause. This objection, however, does not usually hold when the order is interrupted only by a relative clause or by an expression in apposition. Nor does it hold in periodic sentences in which the interruption is a deliberately used means of creating suspense (see examples under Rule 18).

The relative pronoun should come, as a rule, immediately after its antecedent.

There was a look in his eye that boded mischief.	In his eye was a look that boded mischief.
He wrote three articles about his adventures in Spain, which were published in Harper's Magazine.	He published in Harper's Magazinethree articles about his adventures in Spain.
This is a portrait of Benjamin Harrison, grandson of William Henry Harrison, who became President in 1889.	This is a portrait of Benjamin Harrison, grandson of William Henry Harrison. He became President in 1889.

If the antecedent consists of a group of words, the relative comes at the end of the group, unless this would cause ambiguity.

The Superintendent of the Chicago Division, who
A proposal to amend the Sherman Act, which has been variously judged	A proposal, which has been variously judged, to amend the Sherman Act
	A proposal to amend the much-debated Sherman Act
The grandson of William Henry Harrison, who	William Henry Harrison's grandson, Benjamin Harrison, who

A noun in apposition may come between antecedent and relative, because in such a combination no real ambiguity can arise.

The Duke of York, his brother, who was regarded with hostility by the Whigs

Modifiers should come, if possible next to the word they modify. If several expressions modify the same word, they should be so arranged that no wrong relation is suggested.

All the members were not present.	Not all the members were present.
He only found two mistakes.	He found only two mistakes.
Major R. E. Joyce will give a lecture on Tuesday evening in Bailey Hall, to which the public is invited, on "My Experiences in Mesopotamia" at eightP. M.	On Tuesday evening at eight P. M., Major R. E. Joyce will give in Bailey Hall a lecture on "My Experiences in Mesopotamia." The public is invited.

In summaries, keep to one tense.

In summarizing the action of a drama, the writer should always use the present tense. In summarizing a poem, story, or novel, he should preferably use the present, though he may use the past if he prefers. If the summary is in the present tense, antecedent action should be expressed by the perfect; if in the past, by the past perfect.

An unforeseen chance prevents Friar John from delivering Friar Lawrence's letter to Romeo. Juliet, meanwhile, owing to her father's arbitrary change of the day set for her wedding, has been compelled to drink the potion on Tuesday night, with the result that Balthasar informs Romeo of her supposed death before Friar Lawrence learns of the nondelivery of the letter.

But whichever tense be used in the summary, a past tense in indirect discourse or in indirect question remains unchanged.

The Legate inquires who struck the blow.

Apart from the exceptions noted, whichever tense the writer chooses, he should use throughout. Shifting from one tense to the other gives the appearance of uncertainty and irresolution (compare Rule 15).

In presenting the statements or the thought of some one else, as in summarizing an essay or reporting a speech, the writer should avoid intercalating such expressions as "he said," "he stated," "the speaker added," "the speaker then went on to say," "the author also thinks," or the like. He should indicate clearly at the outset, once for all, that what follows is summary, and then waste no words in repeating the notification.

In notebooks, in newspapers, in handbooks of literature, summaries of one kind or another may be indispensable, and for children in primary schools it is a useful exercise to retell a story in their own words. But in the criticism or interpretation of literature the writer should be careful to avoid dropping into summary. He may find it necessary to devote one or two sentences to indicating the subject, or the opening situation, of the work he is discussing; he may cite numerous details to illustrate its qualities. But he should aim to write an orderly discussion supported by evidence, not a summary with occasional comment. Similarly, if the scope of his discussion includes a number of works, he will as a rule do better not to take them up singly in chronological order, but to aim from the beginning at establishing general conclusions.

Place the emphatic words of a sentence at the end.

The proper place for the word, or group of words, which the writer desires to make most prominent is usually the end of the sentence.

Humanity has hardly advanced in fortitude since that time, though it has advanced in many other ways.	Humanity, since that time, has advanced in many other ways, but it has hardly advanced in fortitude.
This steel is principally used for making razors, because of its hardness.	Because of its hardness, this steel is principally used in making razors.

The word or group of words entitled to this position of prominence is usually the logical predicate, that is, the new element in the sentence, as it is in the second example.

The effectiveness of the periodic sentence arises from the prominence which it gives to the main statement.

Four centuries ago, Christopher Columbus, one of the Italian mariners whom the decline of their own republics had put at the service of the world and of adventure, seeking for Spain a westward passage to the Indies as a set-off against the achievements of Portuguese discoverers, lighted on America.

With these hopes and in this belief I would urge you, laying aside all hindrance, thrusting away all private aims, to devote yourselves unswervingly and unflinchingly to the vigorous and successful prosecution of this war.

The other prominent position in the sentence is the beginning. Any element in the sentence, other than the subject, becomes emphatic when placed first.

Deceit or treachery he could never forgive.

So vast and rude, fretted by the action of nearly three thousand years, the fragments of this architecture may often seem, at first sight, like works of nature.

A subject coming first in its sentence may be emphatic, but hardly by its position alone. In the sentence,

Great kings worshipped at his shrine,

the emphasis upon kings arises largely from its meaning and from the context. To receive special emphasis, the subject of a sentence must take the position of the predicate.

Through the middle of the valley flowed a winding stream.

The principle that the proper place for what is to be made most prominent is the end applies equally to the words of a sentence, to the sentences of a paragraph, and to the paragraphs of a composition.

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Some More Tips on Legal Drafting

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