Legal Writing Principle 4: Write Fluently
Write so that all your ideas are easy to process and understand.
By Joe Regalia
Fluency comes from cognitive science and may be the most important concept for us legal writers. It means: How easy is it for your reader to process your writing and pull out the ideas you are dishing out? For legal writers, fluency is magic. Our busy readers are desperate for the ideas and points to snap together with ease, needing little effort or hard thinking. Cognitive science says that when we read fluent writing, we tend to agree with it. We love the feeling of having “figured it out” and it will be incredibly hard for anyone else to replace that understanding with an opposing view.
Fluency brings together many things, like the simplicity of your words and sentence structure, how easy your language is to visualize and imagine, whether you seamlessly transition from sentence to sentence and idea to idea, how thoroughly you give your reader context before dropping them into complexity, how well you roadmap different ideas, whether you clearly explain how different ideas or concepts interact, and how engaging your prose is so that your readers want to keep writing.
In the end, it’s all about making it easy for a new reader to reach the same level of understanding you have. You do that by making things simple, organized, and crystal clear. Then you use devices like verbs that trigger the senses to make your writing fun to read.
Take a look at what a difference fluent writing can make. This first example is classic legal fluff—full of clunky words and complex, outdated sentence structure:
To avert the all too common enactment of requirements without regard for their local cost and tax impact, however, the commission recommends that statewide interest should be clearly identified on any proposed mandates, and that the state should partially reimburse local government for some state imposed mandates and fully for those involving employee compensation, working conditions and pensions.
Now see the difference some fluent writing can make. Pay attention to how much easier it is not just to read this, but to process the ideas:
New York often passes mandates telling local governments what to do. These laws often improve life for everyone. But they come with a cost. Sometimes the state doesn’t consider the burden on local government, or how much money taxpayers will have to shell out. So we have an idea: The state should pay back local governments for some of these so-called mandates, like those related to employment.
Or take this example, penned by Justice Kagan. Look close at how she transitions from idea to idea smoothly—one of the most powerful fluency boosters. Also note the concrete verbs and visual nouns and descriptors—like a "thin cushion of air" and "downward-directed fans."
And likewise here, the Government could protect “only th[e] amount of water” in the Nation River needed to “accomplish the purpose of the [YukonCharley’s] reservation.” And whatever that volume, the Government’s (purported) reserved right could not justify applying the hovercraft rule on the Nation River. That right, to use the Park Service’s own phrase, would support a regulation preventing the “depletion or diversion” of waters in the River (up to the amount required to achieve the Yukon-Charley’s purposes). But the hovercraft rule does nothing of that kind. A hovercraft moves above the water, on a thin cushion of air produced by downward-directed fans; it does not “deplet[e]” or “diver[t]” any water. Nor has the Park Service explained the hovercraft rule as an effort to protect the Nation River from pollution or other similar harm. To the contrary, that rule is directed against the “sight or sound” of “motorized equipment” in remote locations—concerns not related to safeguarding the water. So the Park Service's “public lands” argument runs aground…”
Other Tools for Writing Fluently
Use more simple and short words. Prefer words with few syllables, words that are familiar, and words that are specific rather than vague. So "money" or "cash" instead of "funding" and "pay" instead of “remunerate.”
Specific words are easier to visualize and remember. For example: “Three broken ribs” instead of “serious injuries” and “The police’s search” instead of “the underlying act.”
Cut bland “state of being” verbs; prefer active and visual verbs. The “state of being” verbs tell your reader little, save that you “are” or that something “is.” The verb is silent, letting other words do the work: “Is, Am, Are, Was, Were, Be, Being, Been, Have, Has, Had, Do, Does, Did, Shall, Will, Should, Would, May, Might, Must, Can, Could.”
Simply using more active and visual verbs will strengthen your writing. But to take your writing a bit further, become comfortable with the subtle effects you can achieve by selecting verbs that evoke particular emotions or images.
Always look out for nominalizations, also known as Zombie Nouns. These are verbs in noun clothing, often ending in -ion (“determination” instead of “determine”).
Subtly use descriptors (most commonly adjectives and adverbs) and only when they help. Please: Let nouns and verbs do the heavy lifting.
Replace long, boring transitions with fresher ones. The abrupt, repetitive transitions that many lawyers use are distracting. Instead use echo words and concepts from prior sentences or use fresh and varied transition phrases to move from sentence to sentence.
Invite your reader into your sentences with simple, familiar words that put them at ease. Do this by: (1) avoiding introductory phrases, (2) beginning sentences with short words, and (3) beginning sentences with familiar words.
The end of sentences are emphasized; it’s what your reader remembers. So put at the end what you really want your reader to remember.
Opt for shorter sentences, but vary your sentence lengths and your punctuation. Read good legal writing and you’ll see the same sentence patterns: Mostly shorter, a sprinkling of very-short, and the occasional elegant-long—with some diverse punctuation sprinkled in.
Be thoughtful about the subjects you choose and where you put them. Opt for subjects that people can visualize or connect with, like people or things; try to ensure the subject is in the first five or six words of each sentence, lest your reader get lost; and start at least a third of your sentences with the subject.
Use visual verbs, descriptors, and nouns to build images and engage the senses. More advanced techniques, like rhetorical flourishes, will do even more. Your readers will be drawn into the writing and are much more likely to remember what you tell them.