How to “Declunkify” Your Legal Writing: Three Key Strategies
I’m not a fan of neologisms—newly developed or coined words that fall into mainstream usage and gain a foothold. (Think “mansplain” or “staycation” or “bromance.”) As someone whose bread and butter comes from teaching students to use words thoughtfully and precisely, I find neologisms distracting and annoying, especially when I see them in writing.
But sometimes, there is simply no existing word that captures a particular idea as well as a neologism can. I learned this recently, as I was reading my students’ brief drafts and coming across wordy sentence after wordy sentence. I thought to myself, “I need to do more to help them declunkify their sentences.” And there it was—a perfect neologism.
As legal writers, we seem prone to drafting clunky sentences. We use more words than we need to, and we arrange those words in convoluted constructions that hinder the readability of our writing. I tell my students that my first drafts often have a lot of clunkiness, because drafting is a writer-focused task; I’m just trying to get my analysis or argument on paper in an accurate, logical way. But in the revising and editing stages, which are reader-focused, I need to identify areas of clunkiness in my draft and “declunkify” them.
There are many concrete strategies we can employ to declunkify our legal writing. Here, I focus on three: sticking to basic word order, eliminating throat-clearing phrases, and minimizing references to courts and case names.
1. Use basic word order when constructing your sentences.
Good sentence structure begins with straightforward word order: subjectàverbàobject. Much clunky writing results from changing or interrupting this standard word order.
a. Put subjects and verbs close together.
“When too many words intervene between the subject and the verb, readers no longer remember what the sentence is about by the time they locate the verb. They are then forced to backtrack and hunt for the subject.”[1]
Consider the following examples:
Clunky: The plaintiff, when he realized that his ex-wife had fled the state and taken his two children with her, immediately filed an ex parte motion for temporary custody. [18 words between subject and verb.]
Declunkified: When he realized that his ex-wife had fled the state and taken his two children with her, the plaintiff immediately filed an ex parte custody order. [1 word between subject and verb.]
You can eliminate your reader’s need to backtrack to find the subject by (1) removing the words between the subject and verb and making them their own sentence, or (2) rewriting the sentence so that those words are at the beginning or end of the sentence.
b. Use the passive voice sparingly.
The passive voice emphasizes the object of the action of the verb by placing it first in the sentence and shifting the subject or actor of the sentence to a later position (or omitting the subject entirely). The passive structure is inconsistent with the standard English sentence structure of subject-verb-object, and it results in weaker (and often wordier) writing.
Clunky: A motion to strike the witness’s testimony was made by defense counsel.
Declunkified: Defense counsel made a motion to strike the witness’s testimony.
Three “flags” often signal the passive voice: (1) prepositional phrases beginning with by (to introduce the subject or actor); (2) sentences that do not name an actor at all (e.g. “A motion to strike the witness’s testimony was made.”); and (3) the combination of some form of the verb to be with a verb in the past tense (e.g. “It was revealed that the prisoner had escaped.”). A quick skim of our writing to spot these “flags” and a quick edit to convert passive voice to active voice will go a long way toward helping our reader move through our writing more smoothly.
2. Avoid “throat-clearing” phrases at the beginning of sentences.
“Throat-clearing” phrases are “introductions that are mere preludes for the main topic to follow. Writers often feel compelled to warm up readers by preparing them for the main idea rather than simply presenting the idea.”[2]
Consider the following examples:
Clunky: However, it is important to note that the contract was amended.
Declunkified: However, the contract was amended.
Clunky: There are many similarities between the Jones case and Ms. Clark’s case. The first similarity is that like the plaintiff in Jones, Ms. Clark believed . . . .
Declunkified: Here, like the plaintiff in Jones, Ms. Clark believed . . .
In these examples, the italicized phrases are throat-clearers that add no substance and delay the reader from getting to the important content. In the first example, removing the throat-clearing words produces a short, powerful sentence that quickly helps the reader focus on the key fact of the amendment to the contract. In the second example, removing the throat-clearing words—an entire sentence and then some—takes the reader straight to the relevant factual similarity, letting the facts speak for themselves.
One way to spot throat-clearing phrases is to go sentence by sentence through your draft, asking, “What is the main idea?” and removing any language that delays that main idea. Another way to spot throat-clearers is to use the “Find” function to search for phrases like “It is,” “There is,” and “There are,” which are common throat-clearing culprits.
3. When possible, remove references to courts and case names in your textual sentences. (Let citation sentences do their job!)
Clunky: For example, in Lowe v. California League of Professional Baseball, the California Court of Appeals reversed summary judgment for the defendant after the plaintiff was struck by afoul ball while the team’s mascot was in the aisle beside her performing his antics. Lowe, 56 Cal. App. 4th 112, 115 (1997).
Declunkified:For example, summary judgment for the defendant was reversed where a plaintiff was struck by a foul ball while the team’s mascot was in the aisle beside her performing his antics. Lowe v. Cal. League of Prof’l Baseball, 56 Cal. App. 4th 112, 115 (1997).
Here, the citation that follows the sentence tells the reader the case name and the deciding court, so there is no need to include that information in the textual sentence. And case names can be abbreviated in citation sentences but not in textual sentences—an extra incentive to omit them from the latter.
Or consider this analogy, which directly followed a full description of the facts, holding, reasoning, and full citation of the PlayNation case:
Clunky: Just as the court in PlayNation reasoned that in the context of playground equipment, “playset” and “gym” were almost indistinguishable, here, “Muscle” and “Fuel” are almost indistinguishable words in the context of protein supplements, making it difficult for ordinary consumers to differentiate between the marks. [45 words]
Declunkified: Like “playset” and “gym” in the context of playground equipment, “muscle” and “fuel” in the context of protein supplements are almost indistinguishable words that do not allow ordinary consumers to differentiate between the marks. [34 words]
In the declunkified sentence, removing the references to the court and case name allowed the writer to use parallel structure in drawing the factual analogy, even further enhancing readability. And as a bonus, it shortened the sentence by eleven words.
These are but three of many strategies of declunkification. (Wow—I managed to nominalize my neologism!) If there is reader interest, I’ll cover additional strategies in a future column.
Laura Graham serves as Professor of Legal Writing and Director of Legal Analysis, Writing, and Research at Wake Forest University School of Law, where she has been teaching since 1999. She was the first recipient of the law school’s Graham Award for Excellence in Teaching Legal Research and Writing, which is named in her honor, and currently serves as immediate past president of the Association of Legal Writing Directors. Graham is a graduate of Wake Forest University and Wake Forest University School of Law.
[1] Deborah E. Bouchoux, Aspen Handbook for Legal Writers: A Practical Reference 126 (5th ed. 2021).
[2] Id. at 136.