Way too many court opinions start like this: “In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), entered July 10, 2008 ….”
The sentence drones on, topping out at 303 words. Then, amazingly, trying for a record perhaps, the judge pens the second sentence in the opinion. It eats up 343 words. Ouch.
Then along comes this: “Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.”
The first comes from an appellate court in New York, the second from Judge Neil Gorsuch, President Trump’s pick for the Supreme Court vacancy. Gorsuch brings a breath of fresh air to the field of legal writing. Maybe practitioners across the country will follow his lead in busting many myths that have plagued generations of writers.
Even a cursory look at Gorsuch’s opinions shows his disdain for a conventional wisdom that has unfortunately guided the style of countless writers. Consider just a few of the myths many writers blindly follow: (1) long sentences show your intelligence; (2) never write a sentence fragment; (3) never start a sentence with a conjunction; (4) never use contractions in formal writing; and (5) never start a sentence with the word “because.”
To analyze Gorsuch’s writing, I downloaded the full text of two of his opinions: Bustos v. A&E Television Networks and Gutierrez-Brizuela v. Lynch. Let’s examine them together.
1. Long Sentences Show Your Intelligence
A British wag once said: “Lawyers write sentences as if something absolutely cataclysmic will occur if they ever end.” Judge Gorsuch avoids this style. In the above two opinions, his average sentence length clocked in at right around 25, coming close to the averages experts in the field recommend. Dean Richard Wydick in “Plain English for Lawyers” recommends “below 25.” Bryan Garner in “Legal Writing in Plain English” urges “about 20.”
To achieve a decent average, Judge Gorsuch adorns his writing with short sentences. In Guitierrez, we find this: “But we fail to see how.” And this: “And, of course, that’s not the end of it.” In Bustos, we find this: “The answer is no.” And this two-word wonder: “He has.”
2. Never Write a Sentence Fragment
English teachers routinely drench papers in red ink when they spot a sentence fragment—typically a group of words that lacks a verb. But the writing of famous writers reveals the prevalence of these structures—also called “typographical sentences”—in highly formal written pieces. In Bustos, Judge Gorsuch starts a paragraph with a sentence fragment: “Too narrow because incremental harm depends on what happens to be contained in the same publication.”
He stands on firm grammatical ground. Sir Ernest Gowers, editor of “The New Fowler’s Modern English Usage,” writes: “The verbless sentence is a device for enlivening the written word by approximating it to the spoken. There is nothing new about it. Tacitus, for one, was much given to it.”
3. Never Start Sentences with Conjunctions
Where did this myth begin? A SWAT team of elementary-school teachers met in some dank basement and promulgated it. We can understand their motivation; just listen to any six-year-old, and you’ll hear every sentence starting with “And”: “My daddy took me to a movie. And we had a good time. And he bought popcorn. And he let me ride in front on the way home.” Faced with these locutions, the SWAT team simply had to act.
But the teachers prohibited a device accomplished writers use all the time. Think of a great legal writer, and Oliver Wendell Holmes comes to mind. He wrote: “Courts proceed step by step. And we now have to consider whether the cautious statement in the former case marked the limit of the law . . . .” (Johnson v. United States, 228 U.S. 457, 458, 1913). Or Justice Hugo Black: “But they also knew that it is always the deadliest enemy of tyranny” (The Bill of Rights, 35 N.Y.U. L. Rev. 865, 880-81, 1960).
In Bustos Judge Gorsuch started 12 sentences with “And,” 13 with “But,” and 4 with “So.” A sampling: “And that is enough to call an end to this litigation as a matter of law.” “But even more troubling is the doctrine’s breadth.” “So in this respect the difference between truth and falsity is not just immaterial—it doesn’t exist.” Case closed.
4. Never Use Contractions in Formal Writing
I’m not sure where or when this “rule” arose. It certainly makes little sense. Consider the half-century-old advice of Rudolph Flesch: “Contractions have to be used with care. Sometimes they fit, sometimes they don’t. It depends on whether you would use the contraction in speaking that particular sentence (e.g. in this sentence I would say you would and not you’d) . . . . So don’t try to be consistent about this; it doesn’t work. You have to go by feel, not by rule” (“The Art of Readable Writing,” 1949).
Gorsuch certainly doesn’t fear the use of contractions. In Bustos, he uses 23 ending in “apostrophe ‘t’”: isn’t, hasn’t, won’t, and so on. He uses 11 ending in “apostrophe ‘s’”: he’s, what’s, it’s, there’s, and others. Just a small sampling: “Mr. Bustos wasn’t one to back down from an unprovoked attack ….” “Despite his best efforts, he just can’t convince his fellow prisoners that he’s not actually a member of the Aryan Brotherhood.”
5. Never Start a Sentence with the Word ‘Because’
Here’s another strange myth. Writers start sentences with other subordinating conjunctions all the time. Just recently in the Washington Post: “After the sanctions were rolled out, the Obama administration braced itself for the Russian retaliation.” The word “after” is a subordinating conjunction. So is “because.” If you can start a sentence with “After,” why not “Because”?
The reason likely resides with our SWAT team. Their young students often started a sentence with a dependent “because” clause then forgot to attach it to an independent clause: “Because it is raining. You should take an umbrella.” Oops, red ink for a sentence fragment. To halt this sin in its tracks, the teachers made up a rule forbidding “Because” as a sentence-starter.
Gorsuch starts sentences with “Because.” In Bustos we find: “Because no one disputes that our case involves a matter of public concern, it falls to Mr. Bustos to carry this exacting burden.” And this: “Because this is the particular purpose the defamation tort is aimed at, we assess the materiality of a misstatement by comparing the damage it has done to the plaintiff’s public reputation to the damage the truth would have caused.”
For More Analysis of Neil Gorsuch’s Writing
I took the Bustos opinion and provided an annotated analysis for those taking my courses in effective writing. Bustos teems with past-participial and present-participial phrases, truncated clauses, parallel constructions, correlative conjunctions, and so much more. If you’d like a copy, email me at [email protected]