VOL 26 | NR 4 | SUMMER 2011
,.# ##&.-%.) #&&(/',) '*.3
On the Papers
A NEW A PPROACH TO
LEGA L W R ITING
GEORGE D. GOPEN
The author is a professor of the practice of rhetoric at Duke University.
Our school systems have taught
writing inefficiently and ineffec-
tively throughout our history.
Educators have not understood
well how the communication pro-
cess takes place. As a result, they
have resigned themselves to treat-
ing the symptoms of bad writing
as if those manifestations were
instead the causes.
They have labored mightily to eradicate
those symptoms in their studentsbeliev-
ing, as it were, that if one never again
coughed or sneezed, one would never have
a cold. They have bought into a litany of
advice about good writing, so long and
widely accepted as to be considered un-
questionable. Here are some of the major
pieces of that advice, each followed by my
opinion of its accuracy and helpfulness:

0)#."*--#0,)(!
21
*!-2&/-#0&3 ),."*/,*)-) #(!
evaluated on how well they can do that.
0#(!,.."#-2&/-#0&3'#
.-%."3."("0.)"&*."-./(.-
accomplish it. They teach outlining and
thought generation; they demand stu-
dents follow rigid formats not encoun-
tered in the adult, professional world, such
as the five-sentence paragraph and the
#0*,!,*" ."'
( -)'.#'-
most arduously of all, they concentrate on
teaching students how to avoid grammati-
cal error. Students come to believeaccu-
,.&3.".# ."31),%",( #&&."
right number of pages with energy, they
cannot fail. If they improve since last time,
they will do well.

&&) ."#- #&-.)-/#..",&#.#-)
any profession, but especially that of the
trial lawyer. Can you imagine a judge, af-
.,-./3#(!(..),(3-,# 2&#'-
#(!"#-#-.,,#&,# /.3)/"0
1),%",(#.#--)'/"..,."(
)'%#...,'%#.-"),., the one you turned in last month, you win
,)(! ."- (.",&1),&())(,-
0,&&)1-(.(.)2 how hard the writer tried nor what prog-
1),-,)(! ,--"-('",1,#.#(!#(."
,#.."133)/-*%,)(! real world is concerned, the important
)-# 3)/,1,#.#(!#-!)),#. person is not the writer; it is the reader.
)/.&)/,)(! The bottom-line question about writ-

0)#."/-) ."0,.) ing quality is simply this: Did the reader
,)(! get delivery of what the writer was intend-
0,3*,!,*"-")/&-.,.1#." #(! .) -( ." (-1, #- 3- ."
.)*#-(.(,)(! 1,#.#(!1-!))()/!"# #.#-()."
1,#.#(!1-().!))()/!"
(#.'.-
In this series of articles, I will try not ters little how impressive or dazzling the
)(&3.)2*&#(1"3."#-)&**,)")- writing seemed to be along the way.
().1),%/.&-).)')(-.,.'), To get control of writing, litigators
effective way to perceive and control how must understand as much as they can
1,#..((!&#-" /(.#)(-#(13-*- about how the reader goes about the act of
cially relevant to litigators. reading. It is insufficient to compose a
Our school systems traditional ap- sentence that is capable of being interpret-
*,)".)."#(!1,#.#(!1"#""-#.- ed in the way that best serves your case.
,)).-#(."#!".(."(./,3"-!)( Instead you must compose it so the odds
awry for many reasons, most of which are are as high as possible that an intelligent
connected to a single underlying problem: reader will be led to interpret it in the way
They have been concentrating on the 3)/ #(.(  "0 && ( ./!".
wrong personthe writer. They have writing according to what the writer
given all those students a continually should and should not do. The perspective
22 L I T I G AT I O N

should be shifted to consider what readers location of the sentences information. to be. Sometimes this concern for gram-
./&&3)".1#&&.".-%) ."#---
),-#'*&3-..-,,-1%()1 matical construction will coalesce with the
ries of articles. where.)&))% ),what#(,,-2- concerns for structural location mentioned
The interpretive process any reader pect these answers to appear in specific )0-)'.#'-#.1#&&)( &#.,#.#(!
uses is controlled by three main factors: *&-#(."(!&#-"-(.( &&."#- cannot be made an easy thing; but we can
structural location, grammatical con- 13) &))%#(!.."&(!/!.", get better at it. Thought is hard.
-.,/.#)(()(.2. 2*..#)(
**,)" /./, ,.#&- Context. )(.2. )(.,)&- '(#(!
Structural location. The importance 1#&& &))% . " ) ."- +/-.#)(- ( )-#(!&-(.('(-3#.-& /.
of a writer controlling the structural loca- their answers individually. only in combination with the other sen-
.#)() #( ),'.#)(#(-(.(#-."2- Grammatical construction. Readers tences that surround it. That may sound
.,),#(,3(1(1-",,-.% pay different amounts of attention to in- obvious; or it may sound profound. It is
the majority of their clues for the interpre- ),'.#)(*(#(!)(#(1".%#() both. It causes problems when we try to
tive process not from word choice nor from /(#.) #-)/,-#.**,-
/(#.) .&%)/.#'*,)0#(!.")(-.,/.#)() 
word meaning, but rather from structural discourse is any group of words that has a given sentencewhich these articles will
location. Where a word appears in a sen- beginning and an endphrase, clause, spend a good deal of time doing. Two dif-
tence will control much of what a reader is sentence, paragraph, section . . . all the fering versions of the same sentence may
&#%&3 .) ) 1#." #.  && %()1 ."- way up to the complete document or )."2&&(. ),.1)# ,(.*/,*)--
things intuitively as readers. I will try to ))%
-1&))%.-(.(- '!)#(! -/.#(!#0()(.2.)(1#&&-,0
'%."')(-#)/- ),3)/-1,#.,- to consider only three grammatical units, ..,."(.").", 1#&&.,3.)%*/-
discarding all those complicated terms aware of this as we go.
Trial lawyers, it can you may or may not have had to memorize
#("#!"-"))&)'*)/(&/-)'- Trial lawyers, it can be argued, have the
be argued, have the *&2&/-)'*)/()'*&2&/-
."-.",,.")(-.".')-.
",-.1,#.#(!.-%.",#-'/"",,
than that of doctors or scientists or philos-
hardest writing task influence readers regarding the relative
importance of their contents:
ophers. Legal writing is more difficult not
because the subject matter is more com-
there is. "'#(&/-"#-!,)/*)
*&2."('##(),-#(),-.,.
philosophical thought, but rather because
words has a subject and verb and ) ."(./,) #.-/#("(.")-
(.,3#(!.)'%-(-) ((!&#-" could stand by itself as a complete other professionals write something, their
sentence, the reader needs to perceive the sentence. /#(-()0,%1,-.) #!/,
correct answers to all five of the following "+/&# 3#(!&/-"#-!,)/* out what the writer was trying to say.
essential questions if the reader is to un- of words has a subject and verb but ( -.,% )(.,-. ")10, ." /#-
derstand correctly what the writer was cannot stand by itself as a complete ence for a legal brief is often openly and en-
intending to say: -(.("#(%) &/-.". ergetically hostile. It may be a senior part-
!#(-1#."."1),&.")/!" ner who will try to find every possible
".#-!)#(!)(", have created this term. You will not 1%(--/-)."#(!!.-)/.) ."#-
")--.),3#-."#- #(#.#(."!,'',))%- ) # /(.#& #. #- *, . , #. '3  
)1)-."#--(.()((. "*",-"#-!,)/*) 1),-#- judge, who, while holding in one hand your
%1,.)."*,0#)/--(.( )'*&./(#./.&%-#.",), well-argued brief, in the other hand is hold-
)1)-."#--(.(&( ),1, both a subject and a verb. ing an equally energetically argued brief
to where we might go from here? proffered by the opposition. Or it may be an
".#-."')-.#'*),.(.*#) Quite simply, readers tend to give more adversary who, though completely aware
information in this sentence, which weight to information if it appears in a ) 1".3)/1,.,3#(!.)-31#&&2*(
-")/&,#(!1#."2., main clause than if it appears in a qualify- great energy to show that it doesnt say that
emphasis? ing clauseand even less weight than that or says something else or is essentially non-
if it appears in a mere phrase. This is of far -(-"2#-.() ."")-.#&/#(
',%&3."#(.,*,.#0&/-.) greater importance than has been gener- '%-&!&1,#.#(!."",-..",#-
the answers to all five questions are con- ally understood in any writing of #."."-,.#&-#(Litigation, I hope to
veyed to the reader mainly by structural )'*&2#.3( ),-&!&1,#.#(!.(- be of help to you in fighting that fight. q

On the Papers
THE IMPORTA NCE OF
STR ESS: INDICATING
THE MOST IMPORTA NT
WOR DS IN A SENTENCE
GEORGE D. GOPEN
The author is professor of the practice of rhetoric at Duke University.
Have you heard the advice, Write
the way you speak? It is bad
advice.
When you speakand especially
when you speak in courtyou have a
number of ways you can demonstrate to
your listeners which of your words you
would like them to emphasize the most.
You can wave your hands or use body lan-
guage. You can pronounce a word at a
higher decibel level than its neighbors.
You can vary your soundhigher or low-
er, softer or louder, faster or slower. But
on paper, all these indications of empha-
sis disappear. You are left only with word
choice and word placement.
You, being the author, know what you
wanted to say. You look at your sentence:
It seems obvious to you how it should be
performed by any reader. But an author
is often the worst person in the world to
estimate how others will read a sentence.
It is insufficient for you to construct sen-
tences that can be interpreted the way
you want. You must construct them so a
huge percentage of your readers will
Published in Litigation, Volume 38, Number 1, Fall 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
actually interpret them correctly. We all
understand the importance of making
the best possible decisions concerning
word choice; but, surprising though it
may seem, word location is a far more im-
portant tool to master. How can you ma-
nipulate the placement of words to signal
to your readers when they should be
reading a particular term with special
emphasis?
It would be nice, would it not, if we
were allowed to print all such to-be-
emphasized words in red? Take, for ex-
ample, the sentence used in teaching typ-
ing: The quick brown fox jumps over the
lazy dog. If I told you there was only one
word in that sentence uppermost in my
mind at the moment, what would be your
chances of guessing that word correctly?
Given that there are seven important-
looking words, your chances would be
close to one out of seven, or 15 percent.
How would your chances improve if I
were to print that word in red? Or even
just in all caps?
The quick brown fox jumps over the
LAZY dog.
Now you could hardly mistake what
was most important to me. If I were to
speak the sentence to you, I could empha-
size lazy with my voice; but on the page,
that emphasis cannot be heard. It must
somehow be made apparent to the eye.
What if I were to rewrite the sentence
like this: The quick brown fox can jump
over the dog because the dog is lazy.
Now more than 90 percent of readers
might guess that laziness is foremost in
my mind. This is a phenomenon peculiar
to the English language.
We value any moment in a sentence
when the grammatical structure comes
to a full halt. I call such a location the
stress position.
A period always accomplishes this
closure; but the same effect is realized by
any properly used colon or semicolon. It
can never be created by a comma, be-
cause there are too many different sig-
nals a comma can send. We always have
to go beyond a comma to find out what
kind of pause it is asking us to make.
Commas never signal full syntactic
closure.
Here is an example I have used with
thousands of students and clients to
teach the efficacy of the stress position:
As used in the foundry industry,
turnkey means responsibility for the
satisfactory performance of a piece of
equipment in addition to the design,
manufacture, and installation of that
equipment. P et al. agree that this def-
inition of turnkey is commonly under-
stood in the foundry industry.
Take a moment to underline any words
in these two sentences that you think the
writer might be wanting you to stress.
When I ask as few as a dozen students
or clients to do this, all of the following
terms get underlined by someone: found-
ry industry; turnkey; responsibility; sat-
isfactory performance; design, manufac-
ture, and installation; P et al.
Note that a piece of equipment fails
1

to make this list; and yet, that is the term
that occupies the first sentences sole
stress position. The author had only one
opportunity to indicate his most signifi-
cant words, and he blew it. As a result, he
left all of us guessing; and in a group of a
dozen people, almost everyone will
choose a different assortment. Everyone
thinks he or she has successfully made
sense of the sentence; but often not a sin-
gle person has correctly guessed what
was in the authors mind. Here is the ex-
ample again, with his sole intended em-
phasis printed in all caps:
As used in the foundry industry,
turnkey means responsibility for the
SATISFACTORY PERFORMANCE of
a piece of equipment in addition to the
design, manufacture, and installation
of that equipment. P et al. agree that
this definition of turnkey is commonly
understood in the foundry industry.
In my experience, in a lecture hall
filled with 200 people, no more than four
will have underlined satisfactory per-
formance and only satisfactory perfor-
mance. The failure of communication is
that severe.
Note that no term in the second sen-
tence of the example is in caps. Any such
sentence should not be a sentence. Its in-
formation should be tucked into some
other sentenceand not in a stress
position.
When is a sentence too short? When it
has no viable candidate for the stress posi-
tion. When is a sentence too long? When it
has more viable candidates for stress posi-
tions than there are stress positions. It
matters not how many words a sentence
contains. It matters a great deal that the
number of stress-worthy terms is the
same as the number of stress positions.
You have probably heard the advice,
To make a sentence better, make it short-
er. Forget it. It is wrong. Here is a good
replacement for it: To make a sentence as
good as it can be, make sure that the
Published in Litigation, Volume 38, Number 1, Fall 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
You are your clients
advocate. Your prose
must act as your
advocate.
information you wish the reader to stress
always appears in a stress positionnext
to a period, colon, or semicolon. (I will re-
turn to the use of the colon and semicolon
in a future article.)
Am I suggesting that if our author had
only transported satisfactory perfor-
mance to the end of a single sentence,
most readers would have understood his
intentions? Yes. Here is one possibility:
As P et al. agree, the foundry industry
uses the term turnkey to signify re-
sponsibility not only for the design,
manufacture, and installation of a
piece of equipment but also for its sat-
isfactory performance.
Now more than 90 percent of readers
will get his message.
What if P et al.s agreement had also
been something worthy of stress? Then
we might create a second stress position,
just for that:
P et al. agree: The foundry industry
uses the term turnkey to signify re-
sponsibility not only for the design,
manufacture, and installation of a
piece of equipment but also for its sat-
isfactory performance.
What if the other three functions
(design, manufacture, and installation)
were also worthy of stress? Then we
might create an additional stress position
for them:
P et al. agree: The foundry industry
uses the term turnkey to signify re-
sponsibility for a piece of equipments
design, manufacture, and installa-
tion; but the industry also uses the
term to indicate responsibility for its
satisfactory performance.
Important news: Locating the stress-
worthy information of a sentence else-
where than in a stress position is the sin-
gle most widespread and crippling
problem in professional English writing
today. Of the 245 MDs and PhDs I have
worked with at a prominent federal agen-
cy, only one did not suffer from this epi-
demic problem.
Most judges will read your brief only
once. Are you really content to have them
guessingsentence after sentencewhat
word or words they should be emphasiz-
ing? You are your clients advocate. Your
prose must act as your advocate.
This is neither a mechanical nor a cos-
metic concern. Because it involves the
core of your thinking in any sentence,
you can repair the damage only by re-
entering your thought process and in-
quiring, What is the most important
thing I want to say here? It is not an easy
fix. If you habitually put the important
thing some place other than the stress
position, your habit will persist unless
you fight against it, consciously and with
substantial mental energy.
Begin by using this new advice as a re-
vision tactic. Write your sentence as you
normally would. Then go back and ask
yourself which word or words you would
print in red or in caps if allowed to do so.
Get those words right next to a period,
colon, or semicolon. Try it. Youll like it.
So will your readers.
One last concern: When should you
use artificial emphasisitalics, under-
lining, caps, bold, etc.? Use it whenever
the nature of our grammar makes it
impossible or awkward to get the em-
phatic word next to a colon, semicolon, or
period. For examples, see all the itali-
cized words in this article. q
2

On the Papers
ENSUR ING R EA DERS
K NOW W H AT ACTIONS
A R E H A PPENING IN
A N Y SENTENCE
GEORGE D. GOPEN
The author is professor of the practice of rhetoric at Duke University.
A reader will fail to understand what a
writer meant by a sentence if the reader
cannot perceive what actions are sup-
posed to be taking place therein. But ex-
actly how does a reader go about discern-
ing which words in a sentence are
intended to convey those actions? Ill give
the relatively simple answer to that ques-
tionan answer taught almost nowhere
in our educational systemsafter giving
you a chance to experience it in the fol-
lowing example, which I have explored
with thousands of students and clients.
Take a moment to underline the word
or words in the following sentence that
you think the writer intended you to per-
ceive as actions:
1a. What would be the employee re-
ception accorded the introduction of
such a proposal?
In my experience, in a group of 20
people, some will underline no words,
while some will underline one word,
some two, some three, some four, and
some five. From those 20 people, I will
Published in Litigation, Volume 38, Number 2, Winter 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
usually get anywhere from 14 to 20 dif-
ferent answers. What a phenomenon: No
group of 20 people can come close to
agreeing on what is happening in this
sentence.
Now do the same task for this revision
of that sentence:
1b. How would the employees
receive such a proposal?
In a group of 20 people, usually be-
tween 15 and 18 will underline only one
wordreceive. The others will usually
underline two words, one of which is
receive.
Why is there such agreement in this
case? It is not because (1b) is shorter than
(1a). It is not because (1a) uses a passive
verb and (1b) an active. The discussion of
these two vexed issues will have to await
future articles in this series.
The answer is quite simple: Readers of
modern English expect that the action of
a sentence will be articulated by its verb.
We lean forward to the verb, expecting
that it will announce what is going on:
How would the employees receive such a
proposal? When the verb seems to tell
us what action is happening, we generally
accept that as the truth and proceed from
there. If the verb fails to settle that issue,
then we have to seek out alternative can-
didates. But readers tend to hurtle for-
ward toward the end of this sentence
even as they try to locate the missing
action. That attemptto have the mind
travel in two directions simultaneously
produces the fuzzy-headed feeling of
non-comprehension that we all experi-
ence when reading is not easy.
What words do people tend to under-
line in sentence (1a)? Many underline
would be. Is that an action? I asked the
only person who could know for surethe
writer. I had a long conversation with her
about this, many years ago. She said she
had not intended those words to be an ac-
tion. Why then do so many people under-
line them? Because those two words are
part of the verbwould be . . . accorded.
We can feel that we are approaching the
action, because we know we are engaging
with the sentences verb. We therefore
read would be with a type of reading en-
ergy usually reserved for processing a sen-
tences action. But if you underlined
would be, you are already out of the ball
game: You have failed to perceive the
writers intention. It is not your fault; it is
her fault. She signaled to you that would
be was the action by making it part of the
verb. No wonder you stumbled.
Between 60 percent and 70 percent
usually underline accorded. She told
me that was wrong: I could dispense with
the concept of accorded and not dis-
turb her meaning. Why do so many read-
ers lose this interpretive game at this
point? Because accorded is the previ-
ously missing part of the verb. We have
been waiting for some time for this sec-
ond shoe to drop. When it finally drops,
most of us are convinced accorded
must be the action. After all, not only is it
the most important part of the verb, but it
is the most multi-syllabic and impressive
1
word in the sentence. Of course it is the
action, we think. We are wrong.
Some people underline proposal,
which is a noun made out of a verb. This is
called a nominalization. The writer told
me proposal is not an intended action.
About 50 percent underline recep-
tionanother nominalization. The writ-
er told me that was correct. She had tried
to convey the action of receiving; but
since she used a noun and not a verb to do
the job, no more than half of her readers
get that message.
So, with great confidence, I revised
her sentence and produced sentence (1b).
It is shorter than (1a) because I left out yet
another nominalizationintroduction.
It was logically unnecessary: How could
the employees receive the proposal if it
had not already been introduced? She
looked at my sentence (1b) and replied
Locate the action you
want your reader to
perceive in the
sentences verb.
that, elegant and concise though it may
be, it failed to translate adequately her
original (1a). Introduction, she told me,
was one of her two actions. In any group
of 20 people, no more than between zero
and two are likely to have underlined
those two and only those two words. In
other words, almost no one ever per-
ceives what she was trying to say.
At this point in our discussion, I real-
ized that I had no idea what sentence (1a)
was trying to say, but I could still tell her
how to rewrite her sentence so that her
meaning would become available to a ma-
jority of her readers. All she had to do was
to make those two nominalized actions
into verbs, and her meaning would float
to the surface. Quickly, and with little ef-
fort, she produced the following revision,
Published in Litigation, Volume 38, Number 2, Winter 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
which clearly articulates what she was
trying to say:
1c. How would the employees
receive such a proposal if the
executive board introduced it at this
time?
Two clauses, two verbs, two actions.
You can feel the lean forward clearly:
How . . . receive, . . . if . . . introduced? I
had figured out the first clause: It is my
sentence (1b). But I missed the second
clause entirely. The crux of the matter is
the information now located in the sen-
tences stress position, its important mo-
ment of syntactic closure: at this time.
It was the timing of the introduction, not
its mere existence, that was the key point.
(For an explanation of the stress position,
see my earlier article in this seriesThe
Importance of Stress: the Most Important
Words in a Sentence, 38 Litigation 22
(Fall 2011)).
My advice to you is conceptually sim-
ple, even though it is sometimes difficult
to put into practice: Locate the action you
want your reader to perceive in the sen-
tences verb. Most people will find it
there. Not only will they read your sen-
tence correctly, but they will use far less
energy in accomplishing that task.
You may recall your high school teacher
admonishing you to use strong verbs and
avoid weak verbs. That was bad advice
because of what she meant by strong
and weak. She had a short list of short
verbs that she labeled weak. That list
was headed by the verbs to be, to have, and
to occur. She might then have given you 10
much stronger verbs of several syllables
each and required you to use each in a sen-
tence for Tuesdays homework.
I am offering you different advice:
Use strong verbs and avoid weak verbs.
My advice, which sounds exactly the
same as hers, is different because of the
way I define strong and weak. No
verb is strong or weak by itself, but only
in context. Every verb has meaning. If
the meaning of that verb is the action of
the sentence in which it exists, I call that
a strong verb. The verb to be, for exam-
ple, has a number of meaningsit de-
notes existence, equality, or character-
ization. If that is what it does in your
sentence, it is strong.
The plaintiffs argument is fatally
flawed because . . .
In that clause, the only act is the label-
ing of the argument as fatally flawed.
The verb is does an excellent job of
labeling.
If the meaning or meanings of a verb
have little or nothing to do with the ac-
tion of the sentence in which it appears,
then the verb, I suggest, is weak. A fine
example of that is the would be accord-
ed of sentence (1a) above.
If you want your readers to be keenly
aware of what is going on at all times,
make sure the actions you intend them to
perceive are articulated by your verbs. If
you have a legitimate need to undercut
the force of an action because, forcefully
stated, it would be impolitic or impolite
or downright cruel, then use some other
part of speech to water the action down.
Not Dear Madam, we fire you, but rath-
er the softer Dear Madam, discontinua-
tion of our employment agreement with
you has become necessary because of . . . .
Nominalizations are neither good nor
bad in themselves but only in context.
When is one of these abstract nouns re-
ally destructive of prose? When it usurps
the action from the verb. Reception;
introduction; proposal: Which of
thoseor which combination of those
was meant to be the action of the sen-
tence? Only the writer knew for sure. q
2

On the Papers
W HOSE STORY IS THIS
SENTENCE? DIR ECTING
R EA DERS PERCEPTIONS
OF NA R R ATIV E
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
Please take a moment to rank the follow-
ing three sentences by quality of writing.
Which is best? Which worst?
(A) The defendant deprived the plain-
tiff of his contractual rights by refus-
ing to forward the shipment.
(B) The plaintiff was deprived of his
contractual rights by the defendants
refusal to forward the shipment.
(C) The refusal to forward the ship-
ment by the defendant deprived the
plaintiff of his contractual rights.
If you chose (A) as the best, you were
wrong. If you chose (C) as the best, you
were wrong. If you chose (B) as the best,
you too were wrong. The right answer to
that question is always, It depends. On
what does it depend? It depends in part
on whose story the sentence was trying
to tell. This article discusses how you, as
a writer, can controlinsofar as that is
possiblewhose story a reader perceives
Published in Litigation, Volume 38, Number 3, Spring 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
you to be telling in any given sentence.
There is no rule hereonly high proba-
bilities; but those probabilities are high
enough for you to take them into consid-
eration with every sentence you write.
Sentences (A), (B), and (C) cannot be
saying completely different things, since
all three deal with the same two people
and a single action. Howeverthough
perhaps less obviousthe three sentenc-
es cannot be identical in meaning, be-
cause in each the information appears in
a different order. Word order, word
placement, and sentence structure all
send important signals to readers con-
cerning what function or functions each
word is intended to perform.
If we could make a new rule in English
that a sentence should be read as being
the story of whatever person, thing, or
idea is printed in green, then no one (ex-
cepting those who are color-blind) would
ever misperceive an authors intentions
as to whose story it is supposed to be.
Color the defendant green in each of
these three sample sentences, and each
becomes the story of the defendant. But
they wont let us do that.
What do they let us do? That is best
put not in terms of what they allow, but
rather in terms of what we tend to do
most of the timeeven though no one
ever taught us to do it in school. It is what
I call a reader expectation.
Readers tend to read a clause as being
the story of whoever or whatever shows
up as the grammatical subject of that
clause. They tend to do that no matter
how you as author would like the sen-
tence to be interpreted. Therefore, for
the three previous sample sentences,
most readers will read (A) as the story of
the defendant, (B) as the story of the
plaintiff, and (C) as the story of the re-
fusal to forward the shipment. Since
readers will tend to do this whether you
want them to or not, it makes sense that
you become aware that each of your
clauses will be a narrative told from the
perspective of its grammatical subject.
In a one-clause sentence, the gram-
matical subject will usually be read as
whose story the sentence will be. But
what if your sentence contains two (or
more) clauses? Compare these examples:
(D) Even though the plaintiff deliv-
ered the goods on time, the defendant
chose to refuse them.
(E) The defendant chose to refuse the
goods, even though the plaintiff de-
livered them on time.
In (D), the first clause is the story of
the plaintiff, and the second is the story
of the defendant. Whose story is the sen-
tence as a whole? Most readers will say it
is the defendants. In (E), the first clause
is the story of the defendant, and the sec-
ond is the story of the plaintiff. Whose
story is the sentence as a whole? Most
readers again will say it is the defen-
dants. This tells us that in sentences
with more than one clause, readers tend
to read the sentence as a whole as being
1
 the story of whoever or whatever shows
up as the grammatical subject of the
main clause. In both cases here, the
plaintiff shows up in the even though
clause; the defendant shows up as the
subject of the main clause.
I put these terms in quotation marks
because I use them differently from your
grammar books. There are only three
units of discourse we need concern our-
selves with in trying to control writing:
the main clause; the qualifying clause
(my term); and the phrase. A main
clause has a subject and a verb and can
stand by itself as a sentence. A qualify-
ing clause has a subject and a verb but
cannot stand by itself as a sentence. A
phrase is a word grouping that lacks ei-
ther a subject or a verbor both. For a
reader, a main clause has greater weight
than a qualifying clause; and a qualifying
clause has greater weight than a phrase.
It is that simple.
A main clause, therefore, tells the sen-
tences main story. The grammatical sub-
ject of that clause is therefore the whose
story of the sentence as a whole.
That connects to a concern about sen-
tence length, especially in legal writing. I
am very much opposed to all those well-
intentioned writing teachers and Plain
English promoters who tell us to make sen-
tences better by making them shorter. That
is a false issue. There are wonderful 150-
word sentences and deplorable 10-word
sentences. When the length of a sentence
becomes burdensome, it is usually because
something has gone wrong with the struc-
ture. Consider this lengthy sentence:
(F1) Even though the plaintiff deliv-
ered the goods on time, within two
hours of the expiration date as explic-
itly delineated by Section 27(A)(2)(d)
of the contract, and accompanied
them with the appropriate papers,
duly signed and counter-signed by
the appropriate officials, who had
called ahead to indicate they were
soon to be on their way to the
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not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
designated delivery spot (see Section
27(B)(i)(a) of the contract), the defen-
dant chose to refuse them.
It is not the mere length71 words
that makes this sentence hard to read;
rather, it is the nature of its structure,
which shows a lack of concern for or
knowledge of how readers go about read-
ing. Whose story is this sentence as a
whole? It is the story of the grammatical
subject of the main clausein this case,
the defendant. When do we learn that
I am opposed to those
who tell us to make
a sentence better by
making it shorter.
identity? Far too late. We have been read-
ing for 66 wordsthe equivalent of about
three normal professional sentences
before we are informed that all of those
66 words had been telling us a story about
the defendant. Give us that knowledge up
front, where we expect it to appear, and
the same information becomes far easier
to digest on first reading.
(F2) The defendant chose to refuse
the goods, despite the plaintiffs ex-
traordinary efforts to comply with
the delivery requirements: The plain-
tiff delivered the goods on time, with-
in two hours of the expiration date as
explicitly delineated by Section 27(A)
(2)(d) of the contract; the plaintiff ac-
companied them with the appropri-
ate papers, duly signed and counter-
signed by the appropriate officials, as
required by Section 27(B)(i)(a) of the
contract; and, in addition and without
being required to do so, those officials
had called ahead to indicate they
were soon to be on their way to the
designated delivery spot.
This revision, (F2), a full 95 words, is
actually 24 words longer than the origi-
nal, (F1). It is significantly easier to read,
I would argue, because at every moment
it is so clear whose story is being told.
The first main clause is the story of the
defendant. What action did that defen-
dant do? We look to the verb: The defen-
dant chose to refuse. After the colon,
we get a series of three main clauses that
form (as the colon had promised) a list
that redefines the term extraordinary
efforts. Each subject/verb combination
presents us with another "whose
story"/"what's happening" sub-story:
the plaintiff delivered; the plaintiff ac-
companied them; and officials called
ahead.
In a previous issue of Litigation
(Winter 2012), I argued that readers tend
to look to the verb to find out what is go-
ing on in a sentence. Combining that with
the whose story argument here, the
combination of subject-verb tells the
reader whose story it is and what is hap-
pening. That core of information is es-
sential for readers of English to have as
soon as possible in a sentence. It also
must be accurate. If your main point in
this sentence is what the defendant did,
do not let the plaintiff appear as the
grammatical subject of your main clause.
It makes sense, therefore, not to cre-
ate sentences with two main clauses on
either side of a comma followed by an
and.
The plaintiff did this, and the defen-
dant did that.
We know whose story each clause is;
but whose story is the sentence as a
whole? The and fails to tell us how to
put these two clauses together. It is a
weak structure: Avoid it. q
[I will continue this topic next issue.]
2
 station, fearing he might miss his
train. When he saw the train begin to
move forward, he increased his speed
On the Papers to a dead run. He attempted to leap

CONTROLLING THE
from the platform onto the moving
train. He was aided both by a guard

R EA DERS PERCEPTION
on the train who pulled him up and by
a guard on the platform who pushed

OF YOUR CLIENTS
him forward. Jostled as he was from
two opposite directions, he lost con-

STORY
trol of his package, which contained
fireworks. It fell on the tracks and vi-
olently exploded. The shock of his
GEORGE D. GOPEN
packages explosion overturned a
large scale at the other end of the plat-
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
form, which hit and injured the
plaintiff.

If the plaintiff had been suing the pas-

During my first week of law school, we
were shown a highly effective teaching
film. It pictured a car accident taking
place at an intersection. The cameras
perspective was from the southeast cor-
ner. It was clear to us that X was at fault,
and Y was the hapless victim. After a
brief disquisition on liability, we were
shown the scene again, this time shot
from the northwest corner. It became ap-
parent to us that we had it all wrong: Y
was at fault, and X was the hapless victim.
Now we were privy to the truth. Then
we saw the scene a third timefrom the
northeast corner, from where it was clear
that nothing was clear. From that angle,
liability was impossible to assign. Where
stories are concerned, perspective makes
all the difference.
This is equally the case for presenting
stories in prose. Context controls mean-
ing, and perspective creates context.
Clarence Darrow used to boast to his
opponents, If you let me state the facts,
I will let you argue the lawand I will
win. He did not mean that he would sup-
press facts necessary to his opponents
case, but rather that he could so control
the readers perspective on the facts that
it would be clear his client was in the
right. How is that possible?
In the last issue of Litigation, I ar-
gued that most readers of English per-
ceive a clause as being the story of who-
ever or whatever is its grammatical
subject. Jack loves Jill is the story of
Jack; and Jill is loved by Jack is the sto-
ry of Jill. If you want to tell Jills story,
the latter sentence is far superior to the
formerdespite its greater length and its
passive voice. A multi-clause sentence is
the story of whoever or whatever shows
up as the grammatical subject of the sen-
tences main clause.
While this is an important reader ex-
pectation to understand for any given
sentence, it is yet far more important
when considering how to construct a
continuing story. As a writer, you can
control which corner of the intersection
will be the home of the camera.
Here is a story you might remember.
Version A: A passenger, carrying a
package he had wrapped in newspa-
per, ran onto the platform at the train
senger, this narration might support her
case well. Each sentence until the last
one has the passenger (or a reference to
him) as its grammatical subject. Even the
last sentence is the story of his package.
It is relatively clear from this narrative
that the passengers actionsreckless
and intentionalcaused her injuries.
But the plaintiff was suing the rail-
road. How should we change this narra-
tion if we wanted this story to be sub-
stantially the railroads fault? We should
make as much of the narrative as possible
the story of the railroadby keeping the
railroads personnel up front as the
grammatical subjects.
Version B: Guard A, on a train that
was beginning to move out of the sta-
tion, perceived a would-be passenger
looking like he was going to try to
jump into the moving car. Instead of
warning the man not to make this ef-
fort, he offered his help to pull him
aboard. At the same time, Guard B, on
the platform, instead of prohibiting
the passenger from making the leap,
forcefully tried to support him in his
risky effort. By jostling the passenger
from two different directions, the
guards helped dislodge from his arms

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disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
 a package he was carrying, wrapped
in newspaper. Their actions caused
the package, which contained fire-
works, to fall several feet to the tracks,
where it exploded. The resulting
shock overturned a large scale at the
other end of the platform, which hit
and injured the plaintiff.
From this continued perspective of
the railroad employees, we get a strik-
ingly different story. The guardsas sub-
jects of those verbsare doing all the
problematic actions. In English, we read
from left to right and through time.
Whatever we encounter on the left con-
textualizes whatever we discover to its
right. This story is slanted against the
railroad, in the same way Version A was
slanted against the passenger.
We could slant the story in favor of the
plaintiff if we were to present each of the
details from her perspectiveby making
her the grammatical subject as continu-
ously as possible.
Version C: The plaintiff was waiting
for her train to arrive, standing on the
platform next to a large weighing
scale. She noted a commotion devel-
oping at the other end of the platform
as a train began its exit from the sta-
tion. She saw a would-be passenger
trying to leap aboard the moving
train, with the guards on the platform
and on the train attempting to help
him. She noticed the passengers
package drop to the tracksand then
was overwhelmed by the sounds and
sights of a huge explosion. Suddenly
she felt a great weight crack against
her head and shoulders as she crum-
pled to the ground under the over-
turned scale. She remained there in
great pain, pinned by the heavy scale,
until rescued.
You may remember Miss Grundy, your
middle school English teacher, admon-
ishing you to vary the way you begin your
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disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
sentences to keep your reader interested. 1928), he did not try to slant the readers
Perhaps that was good advice back then; perception in an adversarial manner.
it is very bad advice for you now. Back Instead, he presented the actions as hav-
then, your reader was primarily (and ing a number of different agentsspread-
maybe exclusively) Miss Grundy. As ing whose story it was appropriately over
everybody. That left open the question of
responsibility, which he would then dis-
You can control which
cuss. Here is his narration, with the
grammatical subjects italicized:
corner of an intersection
Version D: Plaintiff was standing on a
will be the home of
platform of defendants railroad after
buying a ticket to go to Rockaway
the traffic camera.
Beach. A train stopped at the station,
bound for another place. Two men ran
forward to catch it. One of the men
reached the platform of the car with-
wonderful as she might have been, there out mishap, though the train was al-
was no way she could possibly be inter- ready moving. The other man, carry-
ested in 42 essays on Why I Like the ing a package, jumped aboard the car,
Spring, with their topic sentences, their but seemed unsteady as if about to fall.
conclusions, and their compulsory list of A guard on the car, who had held the
three examples: door open, reached forward to help
him in, and another guard on the plat-
I like the spring because of the pretty form pushed him from behind. In this
flowers. I like the spring because of the act, the package was dislodged, and
tulips. I like the spring because of the fell upon the rails. It was a package of
roses. I like the spring because of the daf- small size, about fifteen inches long,
fodils. I like the spring because of the and was covered by a newspaper. In
pretty flowers. fact it contained fireworks, but there
was nothing in its appearance to give
She didnt mean interested; she notice of its contents. The fireworks
meant sane. Daffodils are another when they fell exploded. The shock of
reason I like the spring. Vary the way the explosion threw down some
you begin your sentences to keep me scales at the other end of the platform,
from going insane! many feet away. The scales struck the
You do not have to keep your reader plaintiff, causing injuries for which
interested. Your reader is being paid to she sues.
read you. You need to keep your reader
controlled. Keep the grammatical sub- Palsgraf, 248 N.Y. at 34041.
jects of your sentences the same for as
long as you are telling that particular It is the judges job to consider every-
story. Then, by changing whose story the bodys and everythings story, knit to-
next sentence is, you will (silently) con- gether in the logical and chronological
vey to your reader, . . . and now we are way that makes the best sense. It is an
changing the focus of our attention to advocates job to tell the story as fetch-
this next story. ingly from the clients perspective as pos-
When Judge Cardozo wrote the facts sible. Control whose story it is at all times,
into his opinion in Palsgraf v. Long Island and you control the perspective from
Railroad, 248 N.Y. 339, 162 N.E. 99 (N.Y. which the reader perceives that story. q
2

On the Papers
W HO DONE IT?
CONTROLLING AGENCY
IN LEGA L W R ITING
PA RT I
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
When Agatha Christie writes an engag-
ing mystery, the question of agency is so
compelling that we refer to the book as a
Who Done It?. Where agency is con-
cerned, the aim of a legal brief should be
quite the oppositenot to mystify, but
rather to clarify. It is probably obvious
that the macro-issues of who was respon-
sible for doing the major actions in a case
must be attended to with energy and care.
It may be far less clear how important the
question of agency is in every clause of ev-
ery sentence. This article begins a discus-
sion of how to control a readers percep-
tionor non-perceptionof agency at the
micro-level of clauses and sentences.
The agent of a clause or sentence is
quite simply the person or thing that per-
forms the action. If the sentence is writ-
ten in the active mode, the agent and the
grammatical subject are one and the
same; if it is written in the passive mode,
the agent may be elsewhere or missing
altogether. Most often, but not always,
writers need to let the reader know who
is doing what. In other words, writers
Published in Litigation, Volume 39, Number 1, Winter 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
have to name the agent explicitly and,
even more important, they have to place
that agent in the right location in the
sentence.
In a previous article (Whose Story Is
This Sentence? Litigation 38:3, Spring
2012, at 17), I have argued that readers of
English perceive the grammatical sub-
ject of a sentence as the agent that per-
forms the action, and they perceive the
action as being whatever the verb an-
nounces it to be. While this may not be
the case 100 percent of the time for 100
percent of readers, it is, I argue, the de-
fault value expectation, happening more
than 90 percent of the time. If that is the
case, you, as a writer, are identifying the
agent of the action every time you use the
active voice: The agent is the grammatical
subject of your sentence. For your readers
to understand your thought, that subject-
verb combination must represent the
agent-action you are trying to convey.
This poses a real problem for writers,
because they tend to know in their own
minds quite clearly who did what. It
seems obvious to them that a reader will
perceive the proper agency as long as a
sentence contains all the correct infor-
mation. Howeverrepeating something I
have said before in this series of articles
it is insufficient to produce a sentence
that is merely capable of being interpret-
ed the way you wish. You must structure
the sentence so that it will be highly like-
ly to lead most readers to perceive your
thought. To do that, you have to know
what readers expect to find where. You
have to know what I call reader
expectations.
When you use the passive, you are in
danger of having the identification of
agency become ambiguous. The passive
is not bad; it is only dangerous. (I will lat-
er devote a whole article to the good uses
of the passive.) For now, we can define
the passive as a mode through which the
object of an action can become the gram-
matical subject of a sentence that de-
scribes it.
1a. Jack loves Jill.
1b. Jill is loved by Jack.
1c. Jill is loved.
In (1a), Jack is the agentthe lover;
and Jill is the object of that action of lov-
ingthe lovee. When that which might
have been the grammatical object of a
verb becomes the subject of that sentence,
the agent can remain present through
the use of the word byas in (1b); or the
agent can disappear altogetheras in
(1c).
Look what can happen when writers
are so aware of agency that they lose
sight of what readers will perceive.
Consider this example:
2a. A study was performed on the
causes behind the decrease in the
identification of child abuse among
emergency room service by the social
services staff.
I have used this example hundreds of
01
 times in legal writing workshops. I ask
the participants who is the agent? and
what action is the agent doing? Their
response is invariably the same. Take a
moment before reading further to an-
swer those questions yourself.
There is always general agreement
that the agent here is the Social Services
staff. That is correct. There is also over-
whelming agreement (usually more than
95 percent) that the action done by that
staff was either to perform a study or
to study something: The social services
staff studied why hospital staff were not
identifying child abuse in the ER.
That is perfectly possible. It is also
perfectly probable. But equally possible,
and equally probable, is that someone
from the outside studied why the social
services staff were decreasing their iden-
tification of child abuse in the ER. And
equally possiblebut we hope less prob-
ablewould be that someone from the
outside was studying why someone from
the inside was decreasing in identifying
the fact that social services staff were
abusing children.
This ambiguity can be neatly resolved
by making the social services staff the
grammatical subject of whatever verb
would express the action they actually
performed:
2b. The social services staff studied
the causes. . . . [or]
2c. X [from outside] studied why the
social services staff were decreasing
their identification of . . . [or]
2d. X [from outside] studied why Y
[from inside] were not noticing that
the social services staff were abusing
children. . . .
If all three of these are equally possi-
ble, and two of the three are equally prob-
able, why then do 95 percent confidently
vote for only the first of the three inter-
pretations? I suggest this is the case be-
cause in English we read from left to right
and through time. People begin trying to
Published in Litigation, Volume 39, Number 1, Winter 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
answer my questionWhat did the agent
do?by starting at the beginning of the
sentence. Immediately they encounter A
study was performed. Because that con-
stitutes a reasonable answer to my ques-
tion, they tend to cease searching.
I believe this signals an important
general tendency we have as readers: We
tend to cease any act of interpretation as
soon as we are allowed to do so. The mo-
ment a sentence makes some sense, we
presume that is the sense it was intended
to make. We are often wrong to assume
that whatever interpretation we come
upon first is the one the writer intended;
but we are safer in making that assump-
tion when we are reading the prose of an
excellent writer. Alas, there are precious
few excellent writers among us these days.
Excellent writers control when agen-
cy should be made clear and when it
should be repressed altogether. There
are good, logical, ethical, and sensitive
reasons for not stating agency:
No one knows or cares who did the
action.
The identity of the agent is irrelevant
and would be a distraction if men-
tioned.
Everyone knows who did it, even
without your telling them.
To mention who did the action would
be unkind, insensitive, impolitic, or
downright cruel.
Most of the time, however, your reader
will do well to know precisely and with-
out much effort who is doing what.
Sometimes agency is not the issue of
the moment and would act as a distrac-
tion if suggested. This is often the case
when the agent is not known:
3a. The window was broken.
3b. Somebody broke the window.
If the broken state of the window is
the issue to be considered, (3a) is supe-
rior to (3b). Articulating the agency of
somebody raises the mystery of who
that somebody was: SomebodyI dont
know who, but will they ever hear from
me when I find outbroke the window.
If that mystery is a distraction from
the importance of the broken state of
the window, the agency should be sup-
pressed, as it is in (3a).
In English, we have two main ways of
suppressing agency:
(a) We can articulate the action not as
a verb but as a noun. Then no one has
to be around to do that action: It just
happens.
Then X and Y discussed the issue.
Then discussion ensued.
(b) Alternatively, we can substitute
the passive for the active, which will
then allow for the jettisoning of the
agent:
X broke the window.
The window was broken by Chris.
The window was broken.
(There is a third possibility, known as
the ergative mode, in which the action
is described by its effect instead of by its
being done: The door opened. This oc-
curs so rarely that we need not further
attend to it here.)
Whenever you need to suppress agency,
I urge you to use the passive. (This is only
one of a number of excellent uses for the
passive.) That will allow you to keep the
action articulated not by a noun but rather
by a verb. Readers will far more easily per-
ceive what the action is if, when they go to
the verb to find it, it is still there.
In the next article in this series, I will
explore the damage that can occur to the
identification of agency when we articu-
late action in nouns instead of verbs. I
will also consider the ethical questions
that arise when agency is suppressed by
any means: Mistakes were made. q
02

On the Papers
W HO DONE IT?
CONTROLLING AGENCY
IN LEGA L W R ITING,
PA RT II
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
In our culture, lawyers have an affinity
for abstract nouns. The original fault is
Aristotles. Before him, most people had
noticed that things moved. Aristotle turned
this into an abstract concept by using the
Greek equivalent of the word motion.
An idea stated as a noun tends to sound
far more profound than when it is stated
as a verb. We call nouns made out of verbs
nominalizations. They successfully keep
nonprofessionals at a distance from the con-
cepts being invoked.
Legal writing is often attacked for rely-
ing too heavily on these nominalizations.
But the problem here is neither their na-
ture nor their number: It is their use at in-
appropriate moments. Quite simply, nomi-
nalizations are consistently treacherous
when they are allowed to state what is go-
ing on. That job should be left to the verb.
Lawyers are so in touch with who did
what in their cases that any word they
use to refer to an action will immediately
bring to their mind the people and events
involved. As legal writers, they would like
Published in Litigation, Volume 39, Number 2, Spring 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
to believe that the same immediate associ-
ation will happen in the minds of all their
readers. To make matters worse, readers fool
themselves into thinking they understand
a sentence as long as it sounds professional
and makes some sense. As soon as a sentence
makes some sense, readers tend to assume
that is the sense it was intended to make.
It is insufficient to write a sentence that is
merely capable of making the sense you in-
tend. The sentence is sufficient only when it
is highly likely to communicate that thought
to more than 90 percent of its readers.
Nominalized sentences can sound so
intellectually professional that readers are
not aware of how incomplete the commu-
nication actually was. Here is an example
of multiple nominalizations making readers
mistakenly believe they know what the sen-
tence is saying. How well do you understand
the following sentence on first reading?
1a. If there could be the presentation of
data that would indicate the representa-
tion of the status of the problem was
accurate, then a decision could be
made.
The author of (1a) tells me she meant
to refer to three specific actions. Here it
is again, with her actions italicized:
1b. If there could be the presentation of
data that would indicate the represen-
tation of the status of the problem was
accurate, then a decision could be made.
Did that help you better understand
the sentences meaning? If you think you
now understand it, you are still deceiving
yourself. And that is not your fault: It is
a trick nominalizations play on readers.
The fault lies in the writer. Heres why.
Because readers look to the verb to dis-
cover the action of a sentence, putting it
elsewhere hides it from the reader. When
actions are articulated as active verbs,
their subjects necessarily and automatical-
ly reveal the agents who did those actions.
If we revise (1a) so that the three actions
appear as verbs, we discover how ignorant
we have been of who is doing what:
1c. If [ ? ] presents data that would indi-
cate that [ ? ] had accurately represent-
ed the status of the problem, then [ ? ]
could decide to . . . .
Not only do we not know who these
agents are, but we cannot even tell how
many people are involvedone, two, or
three. Put the same person in all three
brackets: The sentence makes sense. Put
three different people in the three brack-
ets: The sentence makes a different kind
of sense. Put any combination of one-and-
two or two-and-one in the brackets: The
sentence makes six additional kinds of
sense. We are woefully ignorant of what
this writer was trying to conveyno mat-
ter how hard we have tried nor how suc-
cessfully comprehending we might feel.
When these nominalizations-repre-
senting-actions pile up in great numbers,
leaving agency continually unarticulated,
01
readers have great trouble following the
story. Another example:
2a. To obligate a corporation upon a con-
tract to another party, it must be proven
that the contract was its act, either by
corporate action, that of an authorized
agent, or by adoption and ratification
and such ratification will be implied by
acquiescence or the acceptance of the
benefits of such contract, it being es-
sential to implied ratification that the
acceptance be with knowledge of all
pertinent facts.
A non-lawyer will be dizzied by this
sentence. Lawyers will be less dizzied, be-
cause they have to read so much prose like
this; but they will be severely hampered in
their comprehension all the same. I asked
the author to bold-face the terms that de-
noted the actions he intended to convey.
Here is what he bolded:
2b. To obligate a corporation upon a
contract to another party, it must be
proven that the contract was its act, ei-
ther by corporate action, that of an au-
thorized agent, or by adoption and rati-
fication and such ratification will be
implied by the acquiescence or the ac-
ceptance of the benefits of such con-
tract, it being essential to implied rati-
fication that the acceptance be with
knowledge of all pertinent facts.
Note that after the first two, all the oth-
er ten are nominalizations.
I then asked him to change the bold-
faced words to verbs and to supply the ap-
propriate subject for each verb. With this
list of agent-actions now expressed as sub-
ject-verbs, I asked him to reconstruct the
story he had wanted to tell us, expressing
the action as verbs. Another example:
2c. For a contract to obligate a corpora-
tion to another party, the other party
must prove that the corporation acted
in one of two ways:
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be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
(1) The corporation or its authorized
agent explicitly acted to enter the
contract; or
(2) the corporation implicitly ad-
opted and ratified the contract
when it acquiesced in or accepted
its benefits.
In this second circumstance, the other
party must show that when the corpo-
ration accepted the benefits of the con-
tract, the corporation knew all the
pertinent facts.
Even non-lawyers recognize this as
English they could understandif they
had a pressing enough need. But, you might
query, how did this become two sentences
instead of onewith the first of these di-
vided into two subsections? That happened
because the author discovered the shape
of the story he was telling. This is no mere
cosmetic or mechanical revision process
I am suggesting: It is a controlled way of
revisiting your thought process.
While doing this revision, my client re-
alized that he had been referring to two
main alternatives, and he had then offered
a smaller qualification of the second one.
It made sense to state the general rule in a
single sentence, reserving the smaller quali-
fication for a separate sentence. He created
the numbers and indentations for the first
sentence when he realized its two-fold na-
ture. The structure of the revision flowed
from the inherent re-organization of the
thought. We have a technical term for this
healthy relationship between structure and
substance: We call it good writing.
The moral of this tale: When agents and
actions are constantly expressed as subjects
and verbs, the story is likely to be perceived
by most readers with great clarity.
The constant omission of agency can
raise ethical issues. Here is a quote from
a news report of a 1972 press conference
in which the secretary of the interior was
intentionally understating the downside of
the controversial practice of strip mining.
(In the 1970s, strip mining companies
would cut down all the trees on a hill, ex-
tract the minerals from the ground, and
leave a ravaged-looking mess behind when
finished.) I have italicized the nominalized
phrases that disguise the actions.
3. The Secretary also concedes that sur-
face coal mining operations will destroy
wildlife. He contends that while re-
duced populations will result from in-
creased human activity in the areas and
from the loss of habitat, no adverse long-
term impact is anticipated.
What did he say? It sounds like he was
telling us that although there may be some
rough moments along the way with strip
mining, everything will be just fine in the
long run.
Let us look at the italicized noun phrases.
Increased human activity refers to the
act of strip mining.
Reduced populations does not refer to
groups of people losing weight: The appro-
priate verb-centered translation might be
kill the bunnies.
Loss of habitat does not refer to crea-
tures misplacing their houses: It translates
to the verb phrase destroy their homes.
Given this, by whom is no long-term im-
pact [to be] anticipated? Not by the bun-
nies; but rather by the people who stand to
profit from the strip mining.
The full translation: By strip min-
ing, we kill the bunnies and destroy their
homes; but it doesnt bother us.
When we explore this environmental
problem by using grammatical subjects to
identify the agents and verbs to identify the
actions, we get to the core of the debate. On
the one hand, bunnies suffer; on the other
hand, people benefit. That, in a nutshell,
is the environmental problem. How much
suffering by the bunnies are we willing to
impose in order for us to benefit from the
activity? The problem is no longer hidden
by the language. q
02

On the Papers
HOW TO OV ER BUR DEN
YOUR R EA DER :
SEPA R ATE YOUR SUBJECT
FROM YOUR V ER B
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
We should stop evaluating the readability
of our sentences by looking at the combi-
nation of the meanings of words and look
instead at the structure in which the
words are assembled. Take this sentence,
for example:
1a. The trial courts conclusion that the
defendants made full disclosure of all
relevant information bearing on the
value of Knaebels stock is clearly
erroneous.
The sentence is hard to read. Why? It
feels long, but not because it contains 24
words. Nor are any of its words unfamiliar.
It is hard to read because of its structure.
Its verb (is) is separated from its subject
(conclusion) by 17 words71 percent of
the sentence. This is a burdensome wait
because of the readers expectation that
every grammatical subject will be followed
almost immediately by its verb.
The subject tells us who is doing the ac-
tion; the verb tells us what is happening.
Those two pieces of information need to
be experienced together. In our reading
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be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
process, we need to hear them rever-
berating at the same silent decibel level.
Waiting for the verb to appear is like wait-
ing for the second shoe to drop. If that ar-
rival is delayed long enough, eventually it
commands all available attention.
As a result, anything that intervenes
between subject and verb is read as inter-
ruptive. If the interruption is brief and eas-
ily distinguishable, it causes no problem:
SUBJECT, however, VERB. . . .
If it is slightly longer, but digestible in
one gulp, it still will not be likely to over-
burden us:
SUBJECT, except on Tuesdays, VERB. . . .
the page, but they do not appear in the proper
If, however, that interruption grows
to great length, we begin to grow weary
under the burden of continually having
to wait for the verbs arrival:
SUBJECT, except on Tuesdays, but not
if it is raining, unless it had also rained
on the previous Monday, VERB. . . .
But worst of all is the case when the in-
terruptive material is the information the
writer wanted us to emphasize the most. Its
structural location tells us one thingDont
pay much attention to me because youre still
waiting for the verb to arrive; but the author
intends that information to be shouting, Look
at me! Im the most important thing here! That
is the most serious problem with sentence (1a)
and thousands of sentences just like it.
The moment we read the grammatical sub-
ject conclusion, we gear up to experience the
arrival of its verb. But instead of the verb, we
get a that clause. During the reading of the
that clause, much of our reading energy must
be set aside to continue anticipating the arrival
of the main verb.
But within the interruptive that clause, we
encounter a second subject-verb combination.
When that subordinate subject appears, we for-
mulate a second verb-arrival expectationthis
time for the verb of the that clause. We are
now dealing with two expectations aimed at
the arrival of two separate verbs, the second of
which must arrive first. That is a complicated
reading task.
When that second verb finally arrives, so
long awaited, it tells us nothing that we did
not already know about the subject. Then we
encounter a negative label, clearly erroneous,
and the door slams shut. We realize that what-
ever the sentence was meant to communicate,
we have missed it.
We tend to blame ourselves for such a lack
of comprehension. If that describes you, then,
please, stop feeling bad. The fault here is not
yours, but the writers. If you have been paying
a modicum of attention to a sentence but find
its sense imperceptible even though its words
are recognizable, it is most likely the fault of the
writer. Perhaps all the necessary words are on
structural locations to send you the necessary
instructions for the interpretive process.
We can repair the damage easily enough:
Just move the verb next to its subject and
reconstruct further as seems necessary.
For our sample sentence, we can move the
main verb, is, next to its subject, conclusion.
The revision of the first clause:
01
 1b. The trial courts conclusion is clearly
erroneous. . . .
Is is the verb; but is it the action? The
author told me he intended two actions
conclusion and erroneousthe second of
which was more important than the first. We
can signal that to the reader by making them
both verb forms, but giving the main verb over
to the more important action:
1c. The trial court clearly erred in conclud-
ing that. . . .
Notice how we are now free to pay full at-
tention to whatever comes after the that. We
are no longer holding something in reserve,
waiting for a main verb that has yet to arrive.
We also are now informed that we should color
everything in the that clause stupid.
We must understand, however, that version
(1c) is not necessarily the right version, or
even a better one. It certainly is stronger in
the force of its accusation of the courts error,
but there are times when such strength can be
a drawback. What, for instance, if the writer
will have to appear in front of this court two
months later to argue a different case? Under
that condition, The trial court clearly erred
in concluding that . . . could now be too strong.
In such a case, what could we do?
The court had done two actions: (1) it had
erred, which it was not supposed to do, and
(2) it had concluded, which it was supposed
to do. To soften the accusation, we could shift
the focus to the more acceptable action by
making concluded the main verb. We would
reduce the inappropriate action to the gram-
matical status of an adjective:
1b. The trial courts conclusion is clear- In (1f), no piece of information arrives for
ly erroneous. . . . which we are not already somewhat pre-
pared; and
Let us turn now to the contents of the The arrival of every new word seems to
that clause: lean forward with possibilities as to
where we might go from here.
. . . that the defendants made full dis-
closure . . . These are two benchmarks of good, clear
writing. To demonstrate how these function
Once again the author had failed to com- in sentence (1f), here is a slow-motion replay
municate to us the action by announcing it in of how a reader well might experience the
the verb. The defendants did not make any- interpretive journey:
thing; they disclosed somethingor failed The trial court . . .
to disclose it. We can make that action clearer (Well, what did they do ?)
by making it the verb: clearly erred . . .
(Made a mess of things, did they? How
1e. . . . that the defendants fully did they do that?)
disclosed . . . in concluding . . .
(In concluding what?)
If we opt for the strongest version of the that the defendants . . .
initial clause, here is our complete revision: (And what did they do?)
fully disclosed . . .
1f. The trial court clearly erred in conclud- (What did they disclose?)
ing that the defendants fully disclosed everything they knew . . .
everything they knew that was relevant (Knew? About what?)
to the value of Knaebels stock. that was relevant . . .
(Relevant to what?)
The concepts communicated by sentence to the value of Knaebels stock.
(1f) are not as difficult as they appeared to (Ah, yes.)
be in sentence (1a). The sentence no longer
seems long, even though it has the same num- Important: I am not suggesting a new rule
ber of words as the original. The big differ- that we should never interrupt between a
ence: Sentence (1f) does not misuse reader subject and its verb. Rather, I am indicating
energy by mis-locating its information. To that whenever you do this, the intervening
experience how powerful that mis-location material will be read with far less emphasis.
can be, read once again the original sentence Sometimes that is to be desired.
(1a), noting how difficult the sentence re-
mains, even though we have just spent a great 2a. You may never, except on Sunday, park
deal of energy contemplating its contents: in the A lot.

1d. The trial court erroneously concluded
that. . . .
This is softer than (1c).
Might there be a situation in which (1d) is
still too harsh? If so, to soften it even further,
add marshmallow: We could have the court
do nothing, by not allowing it to be the gram-
matical subject. We could put the blame on
the conclusion:
1a. The trial courts conclusion that the
defendants made full disclosure of all rel-
evant information bearing on the value of
Knaebels stock is clearly erroneous.
As long as we have to wait for the arrival of
the verb, we cannot be paying enough appro-
priate attention to the intervening material.
There are two additional reasons (1f)
reads with so much more ease than (1a):
2b. You may never park in the A lot, except
on Sunday.
Sentence (2a) undercuts the exception;
sentence (2b) emphasizes it. Reader expecta-
tions should serve you not as rules, but rather
as tools. q

Published in Litigation, Volume 39, Number 3, Summer 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 02
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

On the Papers
THE STY LE PROCL A IMS
THE L AW Y ER : YOU A R E
W H AT YOU W R ITE
GEORGE GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
So often in professional lifelife in any
professionwe exist in the minds of oth-
ers only through our writing. They know
us only through their acquaintance with
our letter of application or publication
or trial brief. The 18th-century French
naturalist Georges-Louis Leclerc, Comte
de Buffon (in an age before gender-free
pronouns) put it memorably:
Writing well consists of thinking, feel-
ing, and expressing well, of clarity of
mind, soul, and taste.... The style is
the man himself. [Le style est lhomme
mme.]
Man or woman, it matters not: Ones
writing style proclaims to a reader who
and what the writer is, personally, mor-
ally, and intellectually. It is of the utmost
importance as a lawyer for your prose to
proclaim accurately not only what is go-
ing on in the case but also who and what
you are. Because it will convey all these
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copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
whether you wish it to or not, it makes
great sense for you to be in charge of that
self-portrayal.
In eight previous articles in this se-
ries, I have explained some of the details
of what I call the Reader Expectation
Approach to the language. To know
whose story a sentence is, readers look
to the grammatical subject; to know what
actions are happening, readers look to the
verbs; and to know what words are to be
read with the most emphasis, readers look
to the sentences stress position or posi-
tionsthe moments of full grammatical
closure that are indicated by the presence
of a colon, semicolon, or period. Here I
will use this last expectationthat of the
stress position containing the most stress-
worthy informationto explore an exam-
ple of what great negative consequences
were produced by a political speechwrit-
ers stylistic habit falsifying the character
of a major political candidate.
Here is a paragraph from a 1984
campaign speech by Walter Mondale,
who was the Democratic candidate up
against Ronald Reagan seeking a second
term.
A. I have refrained directly from criti-
cizing the President for three years.
Because I believe that Americans must
stand united in the face of the Soviet
Union, our foremost adversary and be-
fore the world, I have been reticent. A
fair time to pursue his goals and test
his policies is also the Presidents right,
I believe. The waters edge is the limit
to politics, in this sense. But this can-
not mean that, if the President is wrong
and the world situation has become
critical, all criticism should be muted
indefinitely.
Would this passage, in 1984, have made
you want to jump out of your chair and
find the nearest polling booth? Mondale
was a long-term senator, respected by
most of his colleagues on both sides of
the aisle, moderate in his tone, and pleas-
ant in his demeanor. And yet he lost that
election by the largest electoral margin
in U.S. history, carrying only his home
state and the District of Columbia. Exit
polls suggested that even a majority of
Democrats felt Mondale was not strong
enough to face up to the continuing threat
posed by the powerful Soviet Union.
Why should this have been the case?
All those voters did not know the man
from long conversations with him or
from a careful review of his voting his-
tory. They knew him mostly from the few
sound bites they heard from him on tele-
vision. I suggest that it was sound bites
such as this speechnot even written
by himthat proclaimed his supposed
weakness.
None of the individual sentences can
be considered ungrammatical or intel-
lectually vacuous; but the weakness of
every single stress position suggested a
political impotence that accorded with
his overwhelming defeat.
01
 The stress position occupant of the But this cannot mean that, if the believe a President should be given fair
first sentence emphasizes that our can- President is wrong and the world situ- time to pursue his goals and test his
didate has done the action of refraining ation has become critical, all criticism policies.In this sense, politics should
for three years. Since that is exactly how should be muted indefinitely. stop at the waters edge.But this cannot
long Reagan had been president, three mean that all criticism should be muted
years translates into forever. He might The negative verb (cannot mean) is indefinitely, no matter how wrong a
as well have said, I have refrained direct- so far separated from its resolving clause President may be or how critical the
ly from criticizing the president forever. (all criticism should...) that its negative world situation may become.
Vote for me. quality is undermined. As a result, we get
It is a strange claim to make. He a stress position strangely filled with all The style of this revised paragraph
continued: criticism should be muted indefinitely. It presents us with a man who is a tower of
almost produces this comical argument: strength, a man of clear vision, a man who
Because I believe that Americans must Because all criticism should be muted in- can lead us all forward. A forward lean
stand united in the face of the Soviet definitely, you should vote for me, because is created primarily by each sentences
Union, our foremost adversary and be- I have made a good start on that, having leaning forward, as the structural ex-
fore the world, I have been reticent. said and done absolutely nothing, forever. pectations would have us do, toward the
Of course, that was not his intended argu- stress position.
The long because clause increases ment; nor is it a logical interpretation of
our expectation of a powerful resolution his words. But because it is a compilation
in the main clause to follow. When that of everything he has put into his stress
main clause arrives, not only is it disap- positions, it subliminally becomes part of
We are all
pointingly anticlimactic, but it also fea- his message.
tures a stress position that once again The weak stress position poisons every creatures of
rhetorical habit.
highlights the candidates reticence. single sentence. Potentially important ar-
Putting the two sentences together, valu- guments for his side appear, but never in
ing the stress position occupants as the the stress position, where they would have
most important information, we get a been most noted and most valued. The
strange message: I have said and done speechwriters prose presents the image I am not saying he would have won;
nothing, forever. Why should we vote of a man who cannot see things to their but he would not have lost by such a huge
for a man with this record? More telling- conclusions, who cannot stand up for his margin. In looking at several others of his
ly, why should we vote for such a man? own insights, who is, in short, lacking in speeches from that campaign, I have not
(The style proclaims the man.) power and forceand will not be able to found a single sentence with a strongly
In the third sentence, he makes a point stand up to the Soviet Union. filled stress position. The weak stress po-
that at first sounds forceful: A fair time Am I suggesting that if his speechwriter sition was a major component of his style
to pursue his goals and test his policies is had only filled all the stress positions with rather, of the style he was given.
also the Presidents right; but then in the the important material of the sentence, his Through this faulty stylistic habit (the
stress position, he backs away with the stylethat is to say, his characterwould weakly filled stress position), the speech-
limp qualification I believe. Did he want be so transformed that he would appear a writer essentially created a literary char-
his claim to be taken as mere belief? man of strength and force and insight? Yes. acter, lacking in strength, and falsified the
If that were a sole instance of such Here is a revision of this passage in which character of the actual candidate. We are
a rhetorical retreat, it would not define something of import has been moved into all creatures of rhetorical habit; and the
his character; but he does the exact same every stress position. sum of all our rhetorical habits becomes
thing in the next sentence. The waters the identity of the character we show to
edge is the limit to politics, he declares B. For three years, I have refrained the reading world.
with some force; but he then undercuts from directly criticizing the President How are your stress positions? q
it by ending the sentence with in this of the United States.I have been reti-
sense.Nothing ends decisively. cent because I believe that Americans
The final sentence of the paragraph, must stand united before the world,
given this context, descends almost to particularly in the face of our foremost
the comical: adversary, the Soviet Union. I also

Published in Litigation, Volume 40, Number 1, Fall 2013. 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 02
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On the Papers
W HY THE PASSIV E
VOICE SHOULD BE USED
A ND A PPR ECIATED
NOT AVOIDED
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
Our English teachers taught us to avoid
the passive. They said it was weaker and
more cumbersome than the more energet-
ic, more compact active voice. That was
bad advice. Very bad advice. Lawyers can-
not write sophisticated, powerful prose
without a skillful use of the passive voice.
I could offer you a theological proof: God
would not have created the passive had it
no use. Or perhaps you might prefer the
Darwinian argument: The passive could
not have survived unless it was fittest
for something. But I prefer this circular
reasoning: The passive is better than the
active in all cases in which the passive
does a better job than the active. It only
remains for a writer to recognize those
cases and to know how to handle them.
Since grammar is often left untaught,
I had better demonstrate the distinction
between active and passive. In the active
voice, the grammatical subject of the sen-
tence is the agent (the doer) of the action:
Jack loves Jill.
Jack, the subject, does the loving.
Published in Litigation, Volume 40, Number 2, Winter 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
To change this to passive, first we
make the object (Jill) into the subject.
Then we replace the verb (love) with a
form of the verb to bein this case
isplus a verbal adjective made out of
the previous verbin this case, loved:
Jill is loved by Jack.
In the passive, the subject is the one
acted upon.
What does the passive accomplish
for us? It moves the furniture around.
It is the feng shui of grammar. Why is
that important for us? Readers take
most of their clues for interpretation
not from word choice but from word
placementfrom struct ural loca-
tion. Wherea word appears controls
most ofwhatthe reader will do with
it. When the only way to get the right
word into the right place is to use the
passive, then we must be thankful for
its existence.
Here are the four most important
ways in which the passive allows us to
communicate far better than the active.
1. Whose Story Is This?
Jack loves Jill. According to most read-
ers, this is Jacks story. Jill is loved by
Jack. According to most readers, this is
Jills story. Readers expecteven assume
that a clause is the story of whoever or
whatever shows up first, as the grammati-
cal subject.
When all we have is Jack, Jill, and their
passion, this may not seem a weighty con-
cern. But when legal sentences refer to
more information than this, it is another
matter altogether. Consider the following
set of sentences:
a. Smith had notified Jones on the
morning of April 7 concerning the
lost shipment.
b. On the morning of April 7, Jones
had been informed of the lost ship-
ment by Smith.
c. The lost shipment had been dis-
closed by Smith to Jones on the
morning of April 7.
All three are correct and informative
sentences, but they mean differently. To
choose between them, you must not use
not your ear but rather your eye and your
mind. If you are trying to inform us what
Smith did, then your best choice here is
(a). If it is Joness story you wish to tell,
choose (b). If the story is intended to fo-
cus for the moment on the lost shipment,
(c) will do the job best. Getting the right
whose story into the whose story po-
sition is essential for clear legal prose. If
the only way to do that furniture moving
is to use the passive, as in (b) and (c) above,
then thank goodness we have the passive.
2 . The Pa ssive More Ef fec t ively
Indicates Passivity
If we are writing the statement of facts
for a plaintiff in a torts case, we probably
should have a section in which the plain-
tiff is constantly up front as to whose sto-
ry it is, with many of the verbs being pas-
sive. The plaintiff wasdone untoby the
nasty defendant. But in the section that
01
describes all the terrible things the defen-
dant did, the defendant should constantly
be up front, with active verbs showing all
the nasty deeds the defendant actively did.
3. Get the Correct Information into the
Stress Position
The single most important structural
location in a sentence is the stress posi-
tion, defined as any moment in which the
grammatical structure of the sentence
comes to a full halt. This happens at every
period, but it also happens at any prop-
erly used colon or semicolon. Those are
the moments when readers tend to sum-
mon extra emphasis. Putting the most im-
portant information elsewhere than in a
stress position is the single most preva-
lent problem in legal writing today. If the
passive is the only or the easiest or the
best way to get the important words to
the end of the sentence or just before a
colon or semicolon, then thank goodness
for the passive.
For an example, here is a set of facts:
Jones made false representations to
Smith about a piece of property in
which Smith had a substantial interest.
As a result of those false representa-
tions, Smith ceded his interest in the
property.
Let us say we have been telling Smiths
story for several sentences: Smith did this
Smith did thatand Smith did this other
thing. Now is the appropriate moment for
us to tell about his giving up his interest
in the property; but more important to us
than the ceding itself is our opportunity
to point the finger at the villainous Jones.
Which of these sentences would do the
best job for us at this crucial moment?
1. By these false representations,
Jones tricked Smith into ceding
his interest in the property.
2. Because Smith believed Jones, he
ceded his interest in the property.
Published in Litigation, Volume 40, Number 2, Winter 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
3. These false representations by
Jones led Smith to give up his in-
terest in the property.
4. Smith was convinced to cede his
interest in the property by the false
representations of Jones.
All four of these sentences are cor-
rect English. They all sound fine. We
cannot pick a winner by using the ear.
Once again, we have to use the eye and
the mind. The first three are in the ac-
tive; the fourth is in the passive. If we
want to continue the long-standing story
of Smith and wind up pointing the finger
of accusation at Jones, then sentence (4),
despite its passive construction, will do
by far the best job. Smith is once again
in the whose story position, since this
continues to be Smiths story; but the
emphasis provided by the stress position
turns the readers attention, with energy,
to the false representations of Jones. We
could not have accomplished that with-
out the passive. All the other sentences
are good sentences, but they do not serve
our present purpose as well.
4. Use the Passive to Get Rid of Agency
In English, there are two main ways of
ridding a sentence of agencyof stating
who did the action. One is nominaliza-
tionmaking the verb into a noun. Here
is an active sentence:
1. We predicted a 4 percent rise in
production.
We is the agent. To get rid of us, make
the verb predicted into a noun.
2. The prediction was for a 4 percent
rise in production.
The agent has disappeared.
The only other way to rid a sentence of
agency is to use the passive:
3. A 4 percent rise in production was
predicted.
When you wish to get rid of agency, I
urge you to avoid nominalization and use
instead the passive. By using the passive,
you retain the announcement of the action
in the verb, which is where readers expect
to find it. If you give sentence (2) to 12 read-
ers, they will vary in their interpretations:
Four are likely to judge it to be featuring
the action of predicting; four are likely
to say it is featuring the production ris-
ing; and four others might swear that it is
stressing producing. Give sentence (3) to
the same 12 readers, and 11 or 12 will say it
is emphasizing the predicting. Sentence
(3) will be by far the best if the next sen-
tence focuses on the prediction: That pre-
diction turned out to be inaccurate....
Our English teachers have always
taught us that to produce clear, forceful,
communicative prose, we must constantly
avoid the passive. It is perhaps the single
worst idea we teach about the English lan-
guage. It is impossible to write sophisti-
cated legal prose about complex matters
without skillfully employing the passive
voice. With it, we can change the location
of particular pieces of information so that
they appear in the structural locations in
which readers expect to find those pieces
of information. Taken together, those loca-
tions control how readers go about reading.
The action of a sentence is expected to be
announced by the verb. The perspective
of the actionwhose story the sentence is
meant to beis expected to be revealed by
whoever or whatever is the grammatical
subject of the main clause. The most im-
portant piece of informationto be read
with greater emphasis than all the other
informationis expected to appear at the
moment or moments of full grammatical
closure, signaled by the presence of a co-
lon, semicolon, or period. These are the
concerns that control the interpretive
process of most readers of English.
If the only way we can get the right
information into the right places is to use
the shape-changing passive voice, then
thank goodnessor God, or Darwinfor
the passive. q
02

On the Papers
CONTROLLING
CROW DED SENTENCES
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
High school students can continually get
all As on essays if they construct one-
clause sentences and put them in an or-
der so that teachers will be able to infer
the logical connections that assumably
connect them. This works well because
teachers almost always know more than
the students about the topic at hand. But
professionals, especially lawyers, are
usually writing for audiences that do
not yet know all the writer has to say.
Professionals are people paid to articu-
late the necessary connections.
Lawyers cannot tell judges, Here are
the facts; here are some precedents; we
win. The other side might well be able
to turn in the identical brief, leaving the
judge to figure it all out for herself. My fa-
vorite appellate judge claimed that about
95 percent of the briefs submitted were
of almost no help to her in the decision-
making process.
Having gotten all the right compo-
nents into a single sentence, lawyers
believe that all that material will be re-
assembled in the readers mind just the
way the author intended. The opposing
lawyer, however, might well be able to
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be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
demonstrate how the same sentence fits
his case perfectly. The question then be-
comes this: How can a writer control the
use to which the reader will put all the
semantic material assembled into a long,
information-packed sentence? There are
answers to this question, some of which
we deal with here.
I use as my example a sentence from
page 1121 of the textbook Constitutional
Law by Edward Barrett Jr., and William
Cohen (Foundation Press 1981)a book
I chose at random from my shelves and
a page to which I opened at random. In
other words, these principles will apply to
any multi-clause sentence you can find. At
issue was the case of Whitney v. California,
274 U.S. 357 (1927). The defendant was
Anita Whitney, who in 1919 had joined
the new Communist Labor Party. She
was a delegate to a convention to orga-
nize a California branch of the party. Our
sample sentence from the textbook follows:
1a. There she supported a resolution
which would have committed the orga-
nization to the use of peaceful and lawful
methods of change, but this resolution
lost and the convention adopted a pro-
gram resembling Gitlows Left Wing
Manifesto.
(Note: Benjamin Gitlow (18911965) was
a prominent socialist who helped to found
the Communist Party, U.S.A. After years
as a leading American communist, Gitlow
found himself so at odds with Stalins gov-
ernment that he transformed himself into
a right-wing conservative, writing two
books that became highly influential in
the McCarthy movement against commu-
nism. But at the time of the convention at-
tended by Whitney, he was a far left-wing
communist.)
Whitney had been found guilty of help-
ing to criminalize syndicalism. Justice
Brandeis (joined by Justice Holmes) wrote
a memorable concurring opinion, warning
that freedom of speech issues were involved
in Whitneys support of peaceful and law-
ful actions.
The issue at hand for us, however, is not
one of free speech but rather of clear and
convincing writing. Our example sentence
contains three major facts:
Whitney was supporting peaceful and
lawful methods of change.
Her resolution lost.
Gitlows far more extreme manifesto
won.
The example sentence, however, con-
tains only one stress positionthat created
by the sentences period. (For a discussion
of the nature of the stress position, please
see my earlier article on the subject in
Litigation, Vol. 38, No. 1 (Fall 2011), at 20
21.) A stress position is any moment of full
syntactic closure. This occurs at any prop-
erly used period, colon, or semicolon. It can
never occur at a comma. The occupant of
the stress position tends to be what a reader
will perceive as being the sentences most
stress-worthy material. Its location there
has the same force as if those words had
been printed in red, bold, italics, or capital
letters. As a result, the example sentence
01
above (for most readers) calls our attention ful methods of change. This resolution 1d. Whitney having failed in her resolu-
to the victory of the Gitlow manifesto above lost. Instead, the convention adopted a tion to require peaceful and lawful meth-
the rest of its contents. program resembling Gitlows Left ods of change, the convention adopted a
What if that was not the authors inten- Wing Manifesto. program resembling Gitlows Left Wing
tion? None of their words, nor their facts, Manifesto.
would be incorrect; and yet most readers I do not hold with those who advise
would read the sentence in a way that was to make it better, make it shorter. The
not in accord with the authorial intention. brevity of these sentences is not their Variation No. 4
As writers, we have effective ways to control strength; it represents rather their equal- If, instead, the authors had wanted to pres-
what most readers will tend to emphasize. ity of weight and focus. ent us with a two-part narration, the first
These ways are not 100 percent surefire. Any of which deals with and stresses Whitneys
avid pro-communist or anti-communist or efforts, and the second part of which spot-
free-speech reader might well find what he Variation No. 2 lights the Gitlow victory, then summoning
or she wants to find. But for the 90-plus per- If, instead, the authors had wished us to a semicolon to produce stress for her sug-
cent of the readers who are trying their best understand that Whitneys losing and gestion would give her the Part 1 of the
to understand what the authors are trying Gitlows winning should attract our atten- story; and the final period would then give
to say, the reader expectations about giving tion equallyeven though the two state- Gitlows approach the victorious Part 2.
extra emphasis to material in stress positions ments about winning and losing add up
will carry the interpretive day. to the same resultthen they could have 1e. There she supported a resolution
Againno rules here. Each of the revi- accorded her effort a stress position by the which would have committed the orga-
sions that follow here will affect most read- use of a colon. A colon followed by a main nization to the use of peaceful and lawful
ers most of the timewhich is a great im- clause (one able to stand by itself as a sen- methods of change; this resolution hav-
provement over letting the readers figure tence) functions as a kind of equals sign. ing been defeated, the convention ad-
out how to assemble the 36 words for them- It states, Im saying the same thing again, opted a program resembling Gitlows
selves. Many Plain English experts claim a but in a different way. In these cases, the Left Wing Manifesto.
sentence is too hard to read if it exceeds 29 colon should be followed by a capital letter,
words. That is wrong. After 29 words, sen- which warns the reader to expect a main
tences just become harder to write. Clear clauseand not just a list of examples. (The Variation No. 5
writing can produce clear sentences of well latter is the more common use of the colon.) If, instead, the authors had wanted to build
more than 100 words. sympathy for Whitney, they could have given
So let us look at four revisions of this sen- 1c. There she supported a resolution her information two stress positions instead
tence, each of which controls reader empha- which would have committed the orga- of one, drawing more attention to her efforts.
sis by manipulating the placement of infor- nization to the use of peaceful and law-
mation in stress positions. ful methods of change, but this resolu- 1f. There she supported a resolution
tion lost: The convention instead which would have committed the or-
adopted a program resembling Gitlows ganization to the use of peaceful and
Variation No. 1 Left Wing Manifesto. lawful methods of change; but this
If the authors wished us only to know cer- resolution lost. The convention instead
tain facts existed, without their offering a adopted a program resembling
way for us (at the moment) to connect them, Variation No. 3 Gitlows Left Wing Manifesto.
they would do well to give each of the three If, instead, the authors had wanted to subject
major facts its own, separate, and therefore her efforts to a mere supporting role, saving As we can see, these four marks of punc-
potentially equal, stress position. They could the sole emphasis for the Gitlow triumph, tuationthe period, the colon, the semico-
do this by using the same punctuation mark then they could have done the following: lon, and the commacan be used by writers
for eachthe period. This would result in to control how readers will go about assign-
three separate sentences: Demote the material on her to some- ing function, weight, and prominence to the
thing less weighty than a main clause. same facts. Punctuation marks do these
1b. There she supported a resolution Mark the end of the information on her tasks whether we intend them to or not. It is
which would have committed the orga- efforts by a comma, which lacks the important we control them to make readers
nization to the use of peaceful and law- power to create a stress position. function the way we want them to function. q

Published in Litigation, Volume 40, Number 3, Spring 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 02
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

On the Papers
THE NUMBER TWO
PROBLEM IN LEGA L
W R ITING: SOLV ED
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University, Durham, North Carolina.
The number one problem in legal writing
in this country, which afflicts more than
90 percent of legal writers, is the failure
to place the most important information
in the sentences stress position. The stress
position is any moment of full syntactic clo-
suresignaled by the presence of a period
or a properly used colon or semicolon. For
a fuller discussion on the stress position,
see my earlier article in this series, The
Importance of Stress: Indicating the Most
Important Words in a Sentence, Litigation,
Vol. 38, No. 1 (Fall 2011), at 2021. Failing
to place the material to be emphasized in a
stress position will disguise its importance
far more often than one might imagine.
The number two problem, discussed
below, is a subset of the number one prob-
lem. Readers get reading instructions
from a writer not only by structural lo-
cations like stress positions but also by
the weight of the kind of unit of dis-
course in which information appears.
Although that might sound too technical
Published in Litigation, Volume 40, Number 4, Summer 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
for a nonspecialist in language to under-
stand, it is not. You will understand it by
the end of this article.
A unit of discourse is a group of
words that has a beginning and an end-
ing. Thus, a phrase, a clause, a sentence,
a paragraph, or a whole document are
all units of discourseof different siz-
es, shapes, and functions. Our grammar
teachers in high school tried to teach us
about many sentence-level units of dis-
course. Their efforts, and ours in trying
to learn the material, were sadly wast-
ed. You may have struggled with trying
to understand the difference between a
compound clause, a complex clause, and
a compound-complex clause. Forget it.
None of that information is of any help
in writing. You need to know about only
three units of discourse:
1. The main clause. It has a subject
and a verb and can stand by itself
as a sentence.
2. The qualifying clause. It has a
subject and a verb but cannot stand
by itself as a sentenceusually be-
cause it starts with a word like
that or although.
3. The phrase. Although recogniz-
able as a unit, it lacks either or both
a subject and a verb.
It is essential to know the difference
between these three because readers
value the information in a phrase much
less than the information in a qualify-
ing clause; and they value the informa-
tion in a qualifying clause much less
than the information in a main clause.
If a writer puts the most important in-
formation in any unit other than a main
clause, the reader may well not perceive
its importance.
The number two problem in legal writ-
ing is simply this: In creating a sentence
with two or more clauses, lawyers tend
to start with a main clause and end with
a qualifying clause.
MAIN CLAUSE [comma], QUALIFY-
ING CLAUSE [period].
The problematic moment for the read-
er occurs at the comma that follows the
main clause. At this moment, the reader
is receiving conflicting instructions from
the writer:
Instruction No. 1:
Dear reader, this is a main clause.
Thus, the information in it is meant to
be considered of the utmost importance.
Emphasize it.
Instruction No. 2:
Dear reader, this comma tells you there
is no stress position here. Thus, you should
not read the previous information as con-
taining anything of utmost importance.
Which of these conflicting messages
is the reader to rely on?
At that precarious moment of encoun-
tering the comma, readers are faced with
a number of interpretive choices:
1
 (a) Emphasize something in that first
clause. (But then the reader would
have to decide which piece of infor-
mation to weigh most heavily.)
(b) Do not emphasize anything here;
wait instead for the emphasis to be
provided by the period at the end of
the sentence.
(c) Delay the decision concerning em-
phasis until the rest of the informa-
tion in the sentence has been encoun-
tered. (But then the reader will have
to revisit the whole sentence retroac-
tively. Once the reader travels back-
ward, the writer is in trouble.)
Why is this problem so widespread?
Until we were about 16, most of our sen-
tences contained only a single clause. We
had gradually constructed a sentence-writ-
ing machine in our brain that functioned
like this: To write a sentence, first choose
a subject; then choose a verb; then unravel
your complement; then end with a period.
When we went to college, we were
handed reading assignments, in all dis-
ciplines, written by professional authors.
We noticed that all these important people
sounded different from usfor two main
reasons: (1) They used many hard words
unknown to us; and (2) their sentences
extended at least twice as long as ours did.
(Professionals tend to use multi-clause
sentences about 50 percent of the time.)
We knew we should begin to use some of
those hard words ourselves; and we tried
to sound more professional by extending
the length of our sentences.
Writing those college papers, we quite
naturally relied on our long-trusted sen-
tence-writing machine. But our wish to cre-
ate longer sentences caused the machine to
malfunction: Choose a subject; choose a
verb; unravel your complement; end with
a periodwait! No! Insert a comma, and
keep on going. Because for so long begin-
ning a sentence was the same for us as
beginning a main clause, we persisted in
beginning our sentences in that old, now
unhelpful way. We still do. We had no
Published in Litigation, Volume 40, Number 4, Summer 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
idea it was going to cause such problems
for our readers.
Here is an example. We begin with
sentence (1a), a long but perhaps unprob-
lematic sentence.
1a. Although the plaintiff had sent
several notices about the necessi-
ty of delaying the shipment, three
of them in January alone, the de-
fendant persisted in promising its
customers the inventory would be
available as previously scheduled.
The although clause is a qualifying
clause; three of them in January alone
is a phrase; and the rest of the sentence,
beginning with the defendant, is a main
clause. Most readers will read this sen-
tence with the greatest emphasis on the
main clausein part because of its status
as a main clause, and in part because it con-
tains the sentences only stress position.
The qualifying clause, concerning the
plaintiffs actions, will be read with some
weight; but that weight will be in support
of the later arrival of the information in the
main clause.
Because the fact that three notices were
sent in January exists only as a phrase,
most readers will consider it not to be the
sentences most important information.
If that interpretation is what the writer
intended, all is well. But if the writer in-
tended us (e.g.) to give equal weight to the
plaintiffs actions, this sentence would fail
to send the proper reading instructions.
The solution would be to give both the de-
fendants and the plaintiffs actions equal
structural weightby making them both
main clauses:
1b. The plaintiff had sent several no-
ticesthree of them in January
aloneabout the necessity of de-
laying the shipment. Despite this,
the defendant persisted in prom-
ising its customers the inventory
would be available as previously
scheduled.
Version (1c), which follows, is revised
to create the number two problem in legal
writing: It begins with the main clause
and ends with a weaker unit of discourse:
1c. The defendant persisted in prom-
ising its customers the inventory
would be available as previously
scheduled, even though the plaintiff
had sent several notices about the
necessity of delaying the shipment,
three of them in January alone.
All the same information is present in
(1c) as in the original version. The writer
knows exactly how much emphasis the
reader is intended to exert in reading all
three main pieces of information; but the
reader has to figure out that important mat-
ter of emphasis by guessing. Read (1c) again,
as if the defendants actions were the most
important. It can be done. But read it yet
again, this time assuming the plaintiffs
actions are to be most highly emphasized.
Again, it can be done. Reread it a third
time, emphasizing the three notices in
January as the most important informa-
tion. Again, it can be done. So with sen-
tence (1c), we still have all the informa-
tion; but we lack an instructors manual
for how to read it. That manual should
be provided by the sentences structure.
To solve the number two problem in
legal writing, become aware of when
the unit of discourse you are composing
is a main clause, or a qualifying clause,
or just a phrase. Put the most important
material in the main clause; and, as of-
ten as possible, give that main clause a
mark of punctuationperiod, colon, or
semicolonthat will create for it a stress
position. Sometimes youll find your-
self moving that main clause to the end.
Sometimes youll find yourself reaching
for that salt shaker full of colons or that
pepper shaker full of semicolons.
Problem solved.
I will go into these solutions in greater
detail in the next issue of Litigation. q
2

On the Papers
MISCONCEIVING THE
W R ITING TASK: THE
TOLL BOOTH SY NDROME
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
Lawyers are educated people. Lawyers
are smart people. Lawyers write for a liv-
ing. Why then is so much legal writing
so unnecessarily hard to read? At least
in part, it stems from a misconception of
the nature of the writing task.
We learn to write in schoolrooms. For
a great majority of professionals, even af-
ter they have long left those schoolrooms,
writing remains an academic kind of
taska burden to be dispensed with at
the earliest moment possible. They re-
ceive an assignment; they talk with the
appropriate people; they search through
the library; they read whatever they need
to read; they organize their thoughts,
perhaps in some sort of outline form; and
then, when the thinking has mercifully
come to an end, they write it up. They
reduce it to words.
Wrong from the start. Writing is not
something that happens after the think-
ing process has ceased. It is a thinking
process. The English teachers one-liner
Published in Litigation, Volume 41, Number 1, Fall 2014. 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
makes good sense: How do I know what
I mean till I see what I say? Naturally, if
a writer believes the thought process has
been completed before the writing be-
gins, then the writing process becomes
sheer drudgery. But this misconception
of the process of writing is based on a
deeper misconception of the purpose
of writing. This latter misconception can
be described in a metaphor I call the toll
booth syndrome.
The Toll Booth Syndrome
The year is 1980. Picture the following:
You are well known in your field. You
havebeen summoned for three weeks
to New York to consult on an impor-
tant case. Staying with friends in sub-
urban Connecticut, you commute by car
into Manhattan at 5:30 a.m. to avoid the
rush hour. On one particular day, you
have spent from 6:00 a.m. to 9:30 p.m.in
the office, with nothing to show for
it. Everything that could go wrong did
go wrong. At 9:30, you make your way
down to the parking lot, through wind
and rain. You fight your way through 90
minutes of crosstown traffic and finally
find yourself battling the dark and the el-
ements on Route 95 as you head toward
Connecticut.
Just before you leave the state of New
York, you see a sign: Toll booth, 1 mile, 40
cents, exact change, left lane. You search
in your pocket for change and find you
have precisely three coinsa dime, a nick-
el, and a quarterjust the right amount.
You enter the exact change lane. In front
of you is a shining red light, but no bar-
rier; to the left of you is the hopper. You
are tired and irritable as you roll down
the window, the wind and rain greeting
you inhospitably. You heave the change
at the hopper. The quarter drops in; the
dime drops in; but the nickel hits the rim
and bounces out. What do you do? Do you
put the car in Park, get out, and grovel
in the gravel for your nickel? No. Do you
put the car in Reverse and switch to an-
other lane where a human being can make
change for your dollar bill, after which
you can return to your original lane? No.
You go through the red light. It is rain-
ing; it is nearing midnight; there are no
police in sight; and if you did get caught,
you would be able to show the proof of
your good intentions in the gravel. The
alternatives are just too burdensome. You
go through the red light.
If you do this, I would argue you do
it because you have chosen to ignore the
fundamental purpose of paying tolls. You
do not think that in order to continue on
that road, you must transfer 40 cents of
your accumulated wealth to the state
government, with which it will keep the
roads in good repair and pay toll booth
operators. Instead, you rationalize that
in order to continue on the road, you must
be dispossessed of 40 centsandyou have
been. It is therefore moral, if perhaps a bit
risky, for you to plunge further on into the
Connecticut darkness.
1
 The same holds true for the writing
task. Most writers do not care primarily
that the intended audience actually re-
ceive their 40 cents worth of communica-
tion; they care only that after digesting all
that information and forming all those
ideas, they now need only dispossess
themselves of it all onto the paper. That
done, all is done. If a reader complains of
the lack of X later on, the writer can lead
the reader to the hidden spot in the grav-
el where some traces of X exist, faintly
gleaming through the grime in which it
has become embedded.
For students, the rhetorical act of
writing is not communication; rather it
is a demonstrationthat work has been
done. That works in school. There, stu-
dents are usually rewarded for demon-
strating that they have done a great deal
of work, have found the right facts, and
have devised a way to get them down
on the page. The teacher will recognize
the work has been done and will reward
it with an acceptable grade. Students
tend to assume that the teacher already
knows what thoughts can and should be
made out of the facts recorded on the
page. More often than not, they are right
to assume this. Down deep, students are
convinced writing is all performance, a
private charade between student and
teacher, with both in on the game.
In the professional world, it mat-
ters not how much work the writer has
done; it matters only that the reader
actually gets delivery of precisely that
which the writer had intended to send.
Communication in that professional
world requires that the 40 cents worth
of thought actually be received by the
readernot just that it be jettisoned into
the air and onto the page by the writer.
For legal writing especially, the reader
will often not be anything like a teacher,
who gives the writer credit for having
done the job. The legal reader is often
partially or wholly hostile. He might be
a senior partner who insists Nothing
gets out of this firm until it is perfection
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copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
itself. Or she might be a judge who has
your brief in one hand and an oppos-
ing one in the other, balancing them to
weigh their strengths and weaknesses;
or it might be an adversary whoper-
fectly aware of what it is you were try-
ing to saywill bend over backward to
demonstrate that it does not or cannot
say that. Legal writers must write clearly
and forcefully enough to controlinso-
far as that is possiblethe interpreta-
tional acts of all possible readers. The 40
cents worth of ideas must not be merely
possible to perceive; it must become the
dominant interpretation that almost
all readers will be led to perceive. It is
insufficient to produce a sentence that
is merely capable of being interpreted
in the way you want; the sentence will
be sufficient only when it demands that
most readers assent to the interpretation
you intend to convey.
The legal reader is
often partially or
wholly hostile.
That control of the interpretation
process can be gained by knowing what
most readers are likely to do with the
prose you give them. Knowing what
readers expect to find where in a sen-
tence depends on understanding the
reader expectations this series of ar-
ticles has been exploring.
I have room here to explore one fur-
ther issue. I have briefly mentioned the
process of arranging your thoughts in
an outline before writing. Many of us
were taught to do this in grammar school
and high school. After you get your in-
formation, you make a carefully lettered
and numbered outline, from which you
then generate your prose. Early in my
consulting career, lawyersespecially
lawyers in their 50swould approach me
in private to ask if it really is necessary
to make such a carefully constructed
outline before writing. There were two
possible answers the questioner might
find distressing: One was yes; the other
was no. Yes was painful to those who
had not made a single outline since grade
12; No was painful for those who had
spent 9 percent of their career making
such outlines and then disposing of them
so no one would know they had been cre-
ated. In both cases, the questioners were
wondering if their careers might have
blossomed a good deal more had they
known the truth about outlining.
My answer to all such questioners: It
is absolutely essential to make a carefully
numbered and lettered outline of your
writing if you cannot write without one.
Otherwise, dont bother. No one cares.
No one is going to give you credit for
having made the outline if the final prod-
uct was not successful. Over-outlining
can be really debilitating. The rest of the
writing process might then be limited to
filling in the missing parts for those out-
lined sentence fragments and eradicating
all the numbers and letters. That is the
process that produces all those mind-
numbingly dull and pedestrian student
papers. Teachers like outlines. Clients
like results. q
2
 Because the facts remain the same
throughout the four sentences, the in-
structions for interpretation must have
On the Papers been sent by the structures in which the

COMMU NICATING
facts are differently deployed. The same
facts in differing structural locations will

PR EFER ENCE: FR ED
produce differing interpretations.
When two clauses compete with each

A ND HIS DOG
other for attention and emphasis, there
are three dominant structural/syntactical
factors that influence the reader:

1. End placement. Readers tend to

give greater emphasis to the final
GEORGE D. GOPEN
clause because it contains the stress
positionthat moment of closure
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
that tells readers to give additional
emphasis.
2. The main clause (as opposed to
the qualifying clause). Readers
emphasize the main clausea
clause that can stand by itself as
It is insufficient to create a sentence that thumbs down. Here are the stunningly a complete sentencebecause its
is merely capable of being interpreted the consistent results. completeness signals the presence
way you want. The sentence is sufficient of the main thought. A qualifying
only when it leads at least 95 percent of 1a. Although Freds a nice guy, he beats clause has a subject and a verb but
your readers to perceive precisely what his dog. cannot stand by itself as a sentence,
you wanted them to perceive. usually because it begins with a
Let us meet Fred and his dog. We will as- Unanimous or nearly unanimous word like although or that.
sume the dog is nice. We have to figure out thumbs down on Fred. 3. Length. A disparity in length be-
not what we think of Fred, but rather what tween two clauses invokes a dis-
the writer wants us to think of Fred. Here 1b. Although Fred beats his dog, hes a parity of emphasis to be given
is the same information about Fred offered nice guy. by the reader. The longer clause
in four different sentence constructions: usually receives greater attention.
Nearly unanimous thumbs up on Fred. Sometimes the shorter clause can
1a. Although Freds a nice guy, he beats invite emphasis if it acts as a kind
his dog. 1c. Freds a nice guy, but he beats his dog. of punch line.
1b. Although Fred beats his dog, hes a
nice guy. Some up, some down, many hesitat- The consistency of the communal judg-
1c. Freds a nice guy, but he beats his dog. ing to vote, and some demonstrating a ments on Fred and his dog can now be
1d. Fred beats his dog, but hes a nice guy. vacillating hand motion of ambivalence. explained. Because the clauses in each of
Overall, somewhat more negative than the four sentences are of approximately
I have worked through this example positive, but definitely split as a group. equal length, we need only consider the
with more than 350 groups of people. The Some people are split within themselves. effects of emphasis derived from the first
results have been the same in essentially two of the three indicators.
every case. Taking each sentence by it- 1d. Fred beats his dog, but hes a nice
self, I ask the participants to determine guy. 1a. Although Freds a nice guy, he beats
whether the writer wants us to approve his dog.
or disapprove of Fred and to indicate Same varied response as (1c), except the End placement: dog-beating
their decision by a show of thumbs up or overall result is noticeably more positive. Main clause: dog-beating

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be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
 Both indicators of emphasis point the
reader to the negative material, thus ex-
plaining why almost all thumbs are down
on Fred.
1b. Although Fred beats his dog, hes a
nice guy.
End placement: nice guy
Main clause: nice guy
Both indicators of emphasis are posi-
tive, producing mostly thumbs up for Fred.
1c. Freds a nice guy, but he beats his dog.
End placement: dog-beating
Main clause: nice guy.
The two indicators point in different
directions. This explains the hesitation
and indecision of certain readers and the
ambivalence of the group as a whole. Some
follow one sign, some follow another, and
others cannot decide which to follow. In
general, however, the vote is notably more
negative than positive.
1d. Fred beats his dog, but hes a nice guy.
End placement: nice guy
Main clause: dog-beating
The fact that the emphasis indicators
once again diverge in their instructions
accounts for another ambivalent response.
But the response to (1d) is consistently
more positive than the response to (1c).
That suggests that whenever end place-
ment and the main clause compete with
each other for attention, slightly more
readers tend to favor the end-placed clause:
The attraction power of the main clause is
not quite as strong as the attraction power
of the stress position. It is clear that this
does not hold for all individuals, for that
would once again have produced a unani-
mous vote. But it is just as clear (from the
consistency of the outcomes) that it does
hold for a community of readers taken as
a whole. The end placement of a qualify-
ing clause will not eliminate the influence
of an earlier main clause; it only results
Published in Litigation, Volume 41, Number 2, Winter 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
in somewhat greater influence than its
competitor.
Now let us complicate the matter by
introducing the factor of length:
1e. Fred is a good husband, a caring fa-
ther, a fine colleague, and an alto-
gether nice guy, even though he
beats his dog.
1f. Even though he beats his dog, Fred
is a good husband, a caring father, a
fine colleague, and an altogether
nice guy.
Audience responses to these are just as
consistent as those in the previous four
examples: (1e) engenders great conster-
nation and a good deal of inability to vote
at all; and (1f ) engenders unanimous or
nearly unanimous thumbs up.
1e: End placement: dog-beating
Main clause: nice guy
Length: nice guy
As we saw with (1c) and (1d), when end
placement and the main clause compete
for attention, end placement wins a nar-
row victory, due to the power of the stress
position. What happens when the influ-
ence of length is added to the influence
of the main clause in that struggle? Does
the combination of length and the main
clause outweigh the power of the stress
position? Or will the stress position main-
tain a certain dominance no matter what
is placed in opposition to it? Neither of
these turns out to be the case. Instead,
reading communities respond keenly to
the turmoil raised by the structural con-
flict. If, after all that information about
Fred being a nice guy, he ends up beat-
ing his dog, then something is drastical-
ly wrong with Fred. He needs help. It is
the turmoil, the conflict, the friction that
wins the readers attention.
1f: End placement: nice guy
Main clause: nice guy
Length: nice guy
All three indicators are positive. The
sentence translates into Although Fred
beats his dog, he is wonderful, wonderful,
wonderful, wonderful! Fred for presi-
dent! By the time the sentence ends, the
dog has disappeared from view.
From these experiments, we can de-
rive tactics (not rules) for structuring sen-
tences that have two clauses competing
for reader attention. Lets say you are a
member of Congress and must vote on the
expensive and highly controversial MRX
plan. With an election coming up, you poll
your constituents and find they are split
5050 on the issue.
You feel you must take into account
both of those strong feelings and dem-
onstrate you are open to both points of
view. Tactic: State your decision clearly
in the main clause; but do not place that
clause at the end. Let the risks attract the
attention provided by the stress position.
Thus: We should invest in the MRX
plan, even though the risks are high.
Perhaps instead of demonstrating
ambivalence, you wish, while noting the
risks, to indicate a firm support for the
MRX plan. Tactic: Put the risks in a quali-
fying clause at the beginning; put your
opinion into the main clause, and place it
at the end. Your opinion will seem firm
to a majority of your readers.
Thus: Even though the risks are high,
we should invest in the MRX plan.
Do you wish to push harder for the
MRX? Tactic: State your opinion in the
main clause, place it at the end, and beef it
up with additional length. This will pro-
duce a sense of urgency for a majority of
your readers.
Thus: Even though the risks are high,
we should draw upon whatever funds are
available and invest in the MRX plan.
It is insufficient to create a sentence
that is merely capable of being interpreted
the way you want it to be interpreted. If
you understand Fred and His Dog, you
can manipulate how most readers will
weigh and balance the conflicting mate-
rial you hand them in a single sentence. q
2

On the Papers
IMPORTA NT: AVOID
BEGINNING SENTENCES
WITH THE COURT
HELD TH AT . . .
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
The Court held that . . . . The plaintiff
alleged that . . . . This construction is
littered over the history of legal writing. It
does a great deal of damage to the readers
interpretation process. It usually should be
avoided. Lawyers often tell me they have no
problem reading such a construction: That
they have been doing it all their professional
lives. They insist it does not obscure mean-
ing. They are right in one sense only: Having
become so habituated to it, they do not per-
ceive the damage it does to them as readers,
sentence after sentence. This article explains
that damage and how to avoid it.
Background: Last summer in these pages,
I explained that there are only three units
of discourse we need to control in order
to indicate to readers the various levels
of importance they should give our in-
formationthe main clause, the qualify-
ing clause (my term), and the phrase. See
The Number Two Problem in Legal Writing:
Solved, 40 Litig. 21 (Summer 2014).
A main clause has both a subject and a
verb; it can stand by itself as a sentence. A
qualifying clause has both a subject and
Published in Litigation, Volume 41, Number 3, Spring 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
verb but cannot stand by itself as a sen-
tenceusually because it starts with a word
like although or that. And a phrase has
a beginning and an end but lacks either a
subject or a verb or both.
The major significance of these dis-
tinctions: Readers value the information
in main clauses more than that in qualify-
ing clauses. Placing the sentences most im-
portant information in qualifying clauses
makes it harder for the reader to perceive
the authors intended meaning. The same
holds true for wasting main clauses on
unimportant information. Put these two
flaws together in one sentencelike one
that begins The Court held that . . .and
your reader quietly and unknowingly suf-
fers double damage.
1a. The Court held that the defendants
had not complied with the requirements
established in the original contract in a
timely manner.
The problem with this sentence is not its
length but its structure. The main clause is
The Court held X. X in this case happens
to be a whole qualifying clauseeverything
from that until the end of the sentence.
Unfortunately for the reader, the qualify-
ing clause contains all the sentences most
important information.
If we can imagine a readers reading
process in ultra-slow motion, note what
happens when the reader reaches the
word that: The reader has to keep those
four initial words in mindsomewhere in
mindall the way to the end of the sentence.
Otherwise, the sentence cannot reach its
full syntactic conclusion. The energy the
reader uses to do this is energy that should
have been reserved for reading the impor-
tant information that follows.
What to do? Demote the main clause to
a qualifying clause; promote the qualify-
ing clause to a main clause. Then the im-
portant information will be located in the
unit to which we naturally pay our greatest
attention.
While this may sound highly technical,
and probably difficult to accomplish, it is
usually quite a simple revision. In this case,
demote The Court held that from main
clause to qualifying clause by changing it
to As the Court held. This allows you to
get rid of the that. (Think of it as a four-
letter word.) What used to be the qualifying
clause, no longer burdened by its beginning
with that, now becomes the main clause,
with no further revision required:
1b. As the Court held, the defendants
had not complied with the require-
ments established in the original con-
tract in a timely manner.
Note the difference in the use of reader
energy. When we get to the comma after
held, we can toss away the whole four-
word qualifying clause that preceded it
(As the Court held...); in turn, that al-
lows us to summon a fresh here comes
the main clause breath of energy for the
new main clause. Our energies are prop-
erly summoned and efficiently expended.
The unimportant material is treated as
1
unimportant; the important material is
read with focused emphasis.
Sometimes the wasted main clause at
the beginning can be demoted all the way
down to the level of a phrase:
2a. The plaintiffs alleged that the defen-
dants had not complied with the require-
ments established in the original con-
tract in a timely manner.
The plaintiffs alleged X can be reduced
to a phrase by the elegant replacement of
the verb alleged with its related nomi-
nalization, allegations:
2b. According to the plaintiffs allega-
tions, the defendants had not complied
with the requirements established in the
original contract in a timely manner.
Nominalizations are often the scourge
of legal writingbut not here. In a previous
column, I spent a good deal of time warning
about the use of nominalizationsa techni-
cal term for nouns related closely to verbs.
See Ensuring Readers Know What Actions
Are Happening in Any Sentence, 38 Litig.
15 (Winter 2012). Like most things in life,
nominalizations should be judged neither
good nor bad in and of themselves, but only
on the basis of the context in which they
appear. As I explained there, nominaliza-
tions usually do damage when they usurp
the action from the verb.
For example:
3a. The CEO made a decision to conduct
a review of the matter.
If the author of this sentence intend-
ed the italicized words to be its main ac-
tions, the nominalizations make those ac-
tions harder to identify. The main verb is
wasted on made. The CEO wasnt mak-
ing something. To conduct sounds sus-
piciously like an important action, even
though it is a second-class verb form
not a main verb, but merely an infinitive.
It sounds more action-packed than the
Published in Litigation, Volume 41, Number 3, Spring 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
nominalized word decisionalthough,
according to the author, it was not intend-
ed to be.
To make the actions more immediately
and more easily perceivable, we need only
change the nominalized action words into
verbs:
3b. The CEO decided to review the
matter.
However, if the CEO notices a growing
discontent among people who perceive her
as increasingly tyrannical, she might do
well to opt for the (3a) version, in which the
actions are softened and undercut. The (3b)
version is not better than (3a); it just does
things differently. Your rhetorical needs
should dictate your rhetorical choices.
So changing (2b) to read According to
the plaintiffs allegations unplugs the ac-
tion-type energy emitted by the (2a) version,
which began The plaintiffs alleged that . .
. . We wanted to undercut the energy on
alleged, sending the verbal, action-type
energy forward to had not complied.
2b. According to the plaintiffs allega-
tions, the defendants had not complied
with the requirements established in the
original contract in a timely manner.
Here is a good use of nominalizations.
There is yet a further good achieved by
both revisions (1b) and (2b). A multi-clause
sentence appears to most readers as being
the story of whoever or whatever shows up
as the subject of the main clause. (For a full-
er discussion of this, see my column Whose
Story Is This Sentence? Directing Readers
Perceptions of Narrative, 38 Litig. 17 (Spring
2012)). Here again is example (1a):
1a. The Court held that the defendants
had not complied with the requirements
established in the original contract in a
timely manner.
Because the Court is the subject of the
main clause, the sentence asks to be read as
the story of the Court. When we revised the
sentence, that changed:
1b. As the Court held, the defendants had
not complied with the requirements es-
tablished in the original contract in a
timely manner.
Now the subject of the main clause is
the defendants, whose story the sentence
really intended to tell.
So am I heading in the direction of a new
rule that says never begin a sentence with
a short main clause followed by a much
longer that clause? No. I have only one
rule (other than the grammatical rules,
which are ruleswrong-headed though
they sometimes manage to be). That rule
is NO RULES. Any rule you have heard
about producing good writing is wrong at
least some of the time. Some of our most
hallowed pieces of writing advice, rigidi-
fied into rule-ish demands, are outright
outrages:
Avoid the passive. (Wrong.) (For a dis-
cussion of this, see my column, Why the
Passive Voice Should Be Used and
AppreciatedNot Avoided, 40 Litig.16
(Winter 2014).)
To make it better, make it shorter.
(Wrong.)
To determine the quality of your sen-
tence, read it aloud. (Wrong.)
Write the way you speak. (Wrong.)
When would it be good writing to be-
gin a sentence with The Court held that
. . .? When held really is the main ac-
tion you want to feature. If you are trying
to distinguish between the Court merely
remarking in dicta and the Court holding,
then a pair of sentences beginning The
Court observed that . . . and However,
the Court held that . . . would do very
well indeed. Context controls meaning. q
2

On the Papers
A MICRO-JOUR NEY
THROUGH A SENTENCE
OF HOR RORS
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
I am going to explore a single sentence.
It was written by one of my legal writ-
ing students at the Harvard Law School
who later produced a book that won the
Pulitzer Prize. In other words, he was al-
ready a smart and accomplished fellow.
He knew what he wanted this sentence
to say. If you told him you were having
trouble reading it, he could unpack it and
repack it in five minutes of discussion,
and you would come away understanding
his intended meaning. But a sentence is
supposed to do all that work without the
author being present, and on one reading.
Take a look at it.
Similarly, in Weaver, the D.C.Court of
Appeals held that the qualifying word
estimate used in conjunction with the
stipulations and conditions that the
quantities were to be used to canvass
bids and not to be the basis for any
payment by the ultimate consumer of
the products and that payments
Published in Litigation, Volume 41, Number 4, Summer 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
would be made only for actual quanti-
ties of work completed, transformed
the contract into a requirements
contract.
The underlying structural problem
here often oppresses legal readers: The
author has separated his grammatical
subject (the qualifying word estimate)
from its verb (transformed) by 47 words.
(For a fuller discussion of this problem,
see my earlier article in this series, How
to Overburden Your Reader: Separate Your
Subject from Your Verb, Litigation, Vol.
39, No. 3 (Summer 2013), at 14.) If we get
that subject and its verb together, the
rest of the revision process falls easily
into place.
The journey through his subject/verb
separation, burdensome enough by itself,
is rendered almost unendurable by the
seemingly harmless presence of two small
words: and and that. I have never met
anyone who was capable of understanding
this sentence on first readingwith the
exception of people who already knew so
much about this area of the law that they
did not need to read it in the first place.
The default value reader expectation:
The moment a grammatical subject ap-
pears, a reader expects the appropriate
verb to follow almost immediately. If it
takes some time for that verb to arrive,
a substantial part of the readers inter-
pretive energy will be used to retain the
memory of having encountered the sub-
ject. Without the subject in mind, the
reader will not be able to put the verb to
use. I want to explore here, in slow mo-
tion and great detail, what happens to a
reader during this kind of wait. Please be
patient. It is necessarily hard to read why
a sentence is hard to read, even if the ex-
planation is itself written clearly.
We begin with the opening word,
Similarly. How do we expect an English
sentence will unfold? We expect to find
a subject up front, followed immediately
by a verb, and then the unfolding of its
complement. Similarly is not a gram-
matical subject. But we have experienced
initial adverbs many times and know how
to store them in mind as we then look for
the subject.
But we do not get the subject. Instead,
we get in Weaver. Now we want our
subject. We do not want to encounter the
words a case in which, because we then
know it might be the fourth line down
before we get the desired subject.
We need not have feared. The next ar-
rival is that longed-for subject, the D.C.
Court of Appeals. Fine. Now we want its
verb. We get it: held. That verb is fol-
lowed by one of our trouble words, that.
When we see a that, we know to expect
the immediate arrival of yet another sub-
ject-verb duo.
And we get subject 2, the qualifying
word estimate. We are already deal-
ing with similarly and the D.C. Court
of Appeals held that. This is already a
small handful, but as legal readers, we are
used to this kind of verbal chunking. Now
1
 our main need is to meet verb 2 while
we still have subject 2 fresh in our mind.
Unfortunately, verb 2 is not what we next
encounter. Instead we find a qualification
of subject 2used in conjunction with
the stipulations and conditions. . . . The
handful is growing larger.
This new arrival contains a word that
causes us just a bit of an extra burden,
beyond that of our needing to recognize
the words and their meanings. The new
arrival is our second trouble word, and.
And tells us to be prepared to receive a
second element that will talk to, and neat-
ly balance, whatever element appeared
just before the and. Our new task here
is an easy one: The and connects two
single, similar words, stipulations and
conditions. We can handle twin words
like these well enough; but we are now
in a bifurcated sub-unit of a qualifying
unit of the main clause. And all this while
we are still awaiting the arrival of verb 2.
But now we are confronted by a four-
letter word that so often causes major
problemsthat. This that is that 2.
That is not offensive here by itself, but
only by what it promises: the arrival of
another subject-verb duo, the third such
unit in this sentence. Here is where the
reading task becomes seriously challeng-
ing. The arrival of subject 3, the quanti-
ties, makes us generate that unique kind
of reading energy that we reserve for the
arrival of verbs. We need to be able to fin-
ish this part of the reading task as soon as
possible: Subject > VERB! The problem
is that we are already waiting to experi-
ence this kind of closure with the arrival
of verb 2. At this moment, therefore, we
have to generate the verb energy for verb
3 while somehow continuing to maintain
a similar kind of verb energy in expecta-
tion of the later arrival of verb 2. That is
complicatedand burdensome!
Verb 3werearrives immediately,
thank goodness. The moment after this,
we learn those quantities were to be used
to canvass bids; but we then encounter a
most troubling wordand. We are now
Published in Litigation, Volume 41, Number 4, Summer 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
in a bifurcated sub-unit of a bifurcated We drown.
sub-unit of a qualifying unit of the main Yes, the subject-verb separation causes
clause. We need to know as soon as pos- the central problem; but it is the damage
sible what this and is connecting. We done to us by the bifurcating and and
see the quotation marks just before and the subject-verb-expecting that repeat-
just after the and. Good. We now know ed multiple times that do us in entirely.
that the and connects two quoted items. The revision is simplicity itself: Get
A new expectation sets in: We want subject 2 and verb 2 together. It then be-
the two units connected by and to bal- comes clear that the three quoted items
ance each other neatlyjust like stipula- are the three reasons that support the
tions and conditions did earlier. When conclusion: This contract was trans-
we experience a phrase like to be used formed into a requirements contract.
to canvass bids, as readers we weigh
it, hoping its length and depth will be Similarly, in Weaver, the D.C.Court of
counterbalanced by the quoted item that Appeals held that the qualifying word
comes after the and. This phrase has estimate transformed the contract
three accented syllables: to be USED to into a requirements contract because
CANvass BIDS. We therefore prepare it was used in conjunction with the
for the second quoted item to have three following stipulations and conditions:
accents, which would make it as easy as (1) that the quantities were to be used
possible to handle the two of them as a to canvass bids; (2) that they were not
unified duo. to be the basis for any payment by the
Unfortunately, this second item is not ultimate consumer of the products;
so easy to handle: not to be the basis for and (3) that payments would be made
any payment by the ultimate consumer only for actual quantities of work
of the products. The words not and completed.
basis and payment use up the quota
of three musical beats we were expect- By the way, this is a 77-word revision
ing; but three gets extended all the way of the original 68-word sentence. q
to sixNOT to be the BASIS for any
PAYment by the ULTimate conSUMer of
the PROducts. This makes our balancing
act a very difficult one indeed.
The next two words, our silent assas-
sins, defeat us entirelyand that. The
and adds yet another sub-level of bifur-
cation. That 3, even worse, leads us to
expect subject 4 and verb 4, which ar-
rive on cuepayments would be made.
Whatever verb-reading energy we had
managed to conserve for the arrival of
verb 2 must now be expended on verb 4.
And we are now faced with another, in-
superable problem: Does that 3 qualify
that 2, which in turn qualifies that 1?
Or are 2 and 3 parallel with each other?
Or . . . ! We are now using all of our read-
er energy to figure out the sentences
structure; we have none left with which
to contemplate the sentences substance.
2

On the Papers
IR R ATIONA L RULES:
MINUSCULE MYSTER IES
OF GR A MM A R
DEMYSTIFIED
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
If we were taught grammar at all, we were
asked to memorize rules and enjoined not
to break them. Many of usespecially
those schooled after the mid-1970s
were never taught grammar. Studies
had proved there was no connection
between success on grammar tests and
writing well. In the 1990s, grammar faint-
ly returned; but many of its teachers had
not themselves been educated in its mys-
teries. We have failed to understand that
grammar should be approached not as
rules but as toolstools to help readers
read. In this article, I look at three rules
that are not founded on reasonthe kind
of rules that convinced us the rules were
in the service not of readers but only of
English teachers.
1. The Split Infinitive
The kind and learned man who hired me
at Duke University, 30 years ago, was so
offended by the presence of a split infini-
tive that the blood would rush to his head
Published in Litigation, Volume 42, Number 1, Fall 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
and turn the ridges of his ears red. All
that energy expended on his part, wasted.
An infinitive is the form of a verb that
incorporates the word toto do, to go,
to boldly go. The third of these was con-
sidered a sin: If you allowed any word to
intervene between the to and the verb,
you had split your infinitive. Points de-
ducted. Red ears. To boldly go was a fa-
mous split infinitive, part of the opening
credits for Star Trek, a well-watched tele-
vision show of the mid-1960s: To boldly
go where no man has gone before.
I fail to fully understand what all the
fuss was about. I ask you: Did you notice
that I just split my infinitiveto fully un-
derstand? Even if you did, did it keep you
from understanding my meaning? Why
all this fuss?
The source of the fuss goes all the way
back to the beginning of the 17th century,
when the first English grammars were
produced. English was used for centu-
ries before it was generally accepted as a
language of the intellect. French was the
language of society; Latin was the lan-
guage of professional thought. Those first
grammar books were not created from
scratch, but were rather translations/
adaptations of Lilys Latin grammar (c.
1500), the most popular contemporary
textbook. Many English grammatical
rules were therefore crafted for another
language. Therein lies the problem.
In Latin, the infinitive was formed not
by adding a separate word, but rather by
adding an ending to the verb stem. Rogo
meant I ask. If you wanted to say to
ask, the form was rogere. Therefore, if
you were translating Latin for your school
assignment, you would be in error to in-
troduce anything between the to and
the ask. The infinitive had to remain
an uninterrupted unit. Hence, the rule
not to split your infinitive.
So why does to fully understand not
defeat comprehension in English? For the
answer, I return to the principle I have
been exploring for more than four years
in these columns: Language functions on
expectation. E.g.: Because readers expect
the action of a sentence to be articulated
by its verb, then our writing becomes eas-
ier and clearer for them to read if we use
the verb to say what is going on.
Once we encounter the word to
when we know it will be part of an in-
finitive, what are we expecting will arrive
next? We expect the verb that announces
the action, immediately. To fully under-
stand is effective English because the
action being expressed is the sum of the
force of the two words fully and un-
derstand taken together. This two-word
action immediately follows the to. To
fully understand is an action I try to ac-
complish many times a day. It is different
from either fully to understand or to
understand fully. You might have indeed
felt burdened or annoyed had I written
to fully and without any possible doubt
understand, because all those interrup-
tive words cannot blend together easily
and forcefully to modify understand.
1
 So here is my advice: For the next
1015 years, never split your infinitive in
professional prose. Starting around the
year 2030, go for itas long as the intrud-
ing word blends seamlessly with the verb
that follows. Why wait for 2030? Because
until then, the people in charge of things
will be of the generation that had their
knuckles rapped (or at least had points
deducted) by their teachers when they
youthfully split their infinitives. Once
these elders are no longer in power, the
rule of reason will be free to take over.
2. The Comma, the Period, and
Quotation Marks
This rule is far more outrageous than the
rule prohibiting split infinitives. When a
comma or a period appears next to a quo-
tation mark, should it be placed inside or
outside the quotation mark?
It would be lovely if this question was
resolved by the following perfectly rea-
sonable and reader-friendly answer:
*If the comma or period is part of what
is being quoted, it goes inside the quo-
tation mark. If it is not part of what is
being quoted, its goes outside. (*An
asterisk indicates a statement consid-
ered incorrect.)
That makes sense. If the whole sen-
tence is a quotation, the period should
be part of the sentence and therefore
should be placed inside the closing quo-
tation mark.
Damn the torpedoes; full steam
ahead.
If only the last word of the sentence
requires the quotation marks, then the
period should follow the closing quota-
tion mark.
*I just hate these arcane and nonsensi-
cal rules.
That indeed is the applicable rule for
Published in Litigation, Volume 42, Number 1, Fall 2015. 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
all punctuation marks other than the
comma and the period:
I just hate these arcane and nonsensi-
cal rules!
But for the comma and the period, the
(unreasonable) rule is different. The com-
ma and the period always go within the
quotation markif you are writing west of
the Atlantic Ocean. They always go outside
the quotation markif you are writing east
of the Atlantic Ocean. Extraordinary: Two
equally absurd but equally stringent rules,
depending on whether your editor lives in
New York or London.
Most grammar books offer no expla-
nation for this. Here is mine. In the 18th
century, the people of the American colo-
nies waged a revolutionary war to free
themselves from the rule of the British
crown. Having won, they took whatever
small opportunities they could to dif-
ferentiate themselves from their former
authorities. They decided that British
words like colour and honour would
express a new-found American freedom
if they were relieved of those unnecessary
u vowels. Color and honor shrieked
with freedom whenever they appeared
on a page.
I think they did the same kind of thing
when they moved the comma and the pe-
riod from outside to inside the quotation
mark. They turned up their collective
noses at this ridiculous British rule and
demonstrated that they could create their
own ridiculous rule if they moved those
punctuation marks within the sheltering
safety of the quotation mark. They left
the sensible rule for question marks and
quotation marks as it was, because that
rule was, well, sensible. It will take an
international treaty to resolve this puerile
stubbornness. I do not look for it to hap-
pen during my lifetime.
3. The Oxford Comma
Which of the following is the proper
punctuation for a series?
1a. A, B, and C
or
1b. A, B and C ?
Most grammar books will tell you,
with great confidence and appropriate
solemnity, that both are completely ac-
ceptable. Ridiculous, say I.
The principle behind all grammatical
rules, I suggest, should be based on one
conceptreadability. Whatever is better
for the reader ought to be considered the
proper usage.
The second comma, in example (1a)
above, is often referred to as the Oxford
comma or the serial comma. It helps
readers. The single comma, in example
(1b) above, always raises a momentary
ambiguity. Ambiguities are a waste of a
readers energy. If a reader is aware that
a list is unfolding, the comma after B,
followed by the and, unambiguously
announces that the third and last mem-
ber of the list, C, will arrive immedi-
ately. But without that Oxford comma,
the and that follows B might be an-
nouncing either the arrival of the third
and final list member or the second half
of a bipartite second member, B and C.
If (1a) is good for readers and (1b) is bad
for readers, then (1b) should be wrong
and (1a) should be right. Given that the
grammatical pundits offer you the choice,
choose the good one.
Punctuation was invented in the fourth
century CE as an aid to Christian mission-
aries traveling far and wide to introduce
the Scriptures to the heathens. A confused
conflation of words that were meant to be
separated from each other could result in
the loss of souls. The dots and squiggles
were added to the holy texts to aid the
missionaries as training wheels aid the
beginner bicyclist. The dots and squiggles
worked so well, they were never discarded.
As long as weve got them, they ought to
continue to benefit readers. q
2

On the Papers
THE PROGR ESS OF
THOUGHT: TO MOV E
FORWA R D, LINK
BACK WA R D
GEORGE D. GOPEN
The author is Professor Emeritus of the Practice of Rhetoric at Duke University.
When a writer is in the process of writing,
no matter how long or short the document
will eventually be, most of the writers at-
tention is focused on the creation of a sin-
gle sentence. Once the sentences contents
have been deposited on the page, without
error, and with some sense of elegance, the
writer can comfortably consider that task
well accomplished. The same process can
continue, sentence after sentence.
For a reader, however, the primary unit
of thought is not the sentence but rather
the paragraph. Readers do not experience
sentences in isolation from one another,
but rather in a flow that begins with the
paragraphs opening sentence and contin-
ues until the paragraph ends. Without ex-
plicit instructions from the writer on how
to link these sentences together, 10 readers
might well come away from the paragraph
with 10 or more different interpretations.
It is a crucial part of the writing act to send
those instructions for logical connection
as soon and as clearly as possible. This ar-
ticle attends to the instructions that help a
reader connect a new sentence to the one
that preceded it.
Published in Litigation, Volume 42, Number 2, Winter 2016. 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Without those early instructions, bad
things can happen.
1. Imagine you have just finished read-
ing a sentence that contained seven
major bits of information, represent-
ed here as A B C D E F G .
The next sentence could connect back-
ward in a great variety of ways:
to any one of the seven individual bits
of information;
to any combination of two or more (AB,
BC, DEF, and so forth); or
to a concept not made explicit by any
single previous element, but suggested
by a combination of them.
As the reader, you begin the next sen-
tence, eager to knowneeding to know
what this backward connection will be.
Without it, you will have trouble know-
ing what to do with the new sentences
contents. But the first bit of information
you encounter is Q. Q? There was no Q in
the previous sentence. You move on; but
what if next you find R. R? That doesnt
help. And then you find S. By this time, you
have so much new material to deal with,
you have to give up the attempt to make
the backward connection. Making sense
of this sentence by itself will be success
enough; but your attempt to follow the
writers thought progression has been se-
verely compromised.
2. The second bad possibility is even
worse. Using sentence example
ABCDEFG, let us say that the author
wants us to continue forward with G;
but not knowing anything about how
readers link backward, the author
begins the new sentence by men-
tioning B. Disaster. The reader, see-
ing B, makes a link backward to the
previous sentences B and is now on
the wrong track forward. Once such
a mistaken connection is made, it is
difficult to undo its damage.
Readers need to know as soon as pos-
sible how a new sentence is intended to
link back to its predecessor. If you tell
them, explicitly, as soon as possible, their
train of thought will stay on the tracks you
intended.
To explore the problems and solutions
involved with this backward link, let us con-
sider a sentence from Chief Justice Warrens
majority opinion in the Miranda case:
The use of physical brutality and vio-
lence is not, unfortunately, relegated to
the past or to any part of the country.
Miranda v. Arizona, 384 U.S. 436.
There are many linkage possibilities
for continuing forward from this sentence,
even though it contains only 21 words. The
next sentence could hark back to any one of
or any combination of the following terms:
physical
brutality
violence
unfortunately
1
 relegated
the past
any part of the country
Here is the beginning of a number of dif-
ferent sentences that could logically follow
the sample sentence:
Mental brutality and violence can often
follow, . . .
Such physical brutality has pervaded
police investigations . . .
Equally unfortunate, courts have long
ignored . . .
All the way back to the era of the
Pilgrims, . . .
Only recently in Kings County, New
York, the police . . .
Or the new sentence might strike out in
a direction not charted by any single word
in the sample sentence:
To date, there has been no outraged pub-
lic outcry demanding . . .
Any of these are possible and intelligible.
If the new sentence begins with some-
thing not appropriately connectable, read-
ers are left to their own devices to create a
linkageone that may or may not be what
the writer had in mind. How would you stay
on track if the new sentence began with
The presence of an attorney . . .?
But even worse than not knowing what
the link should be is to have the new sen-
tence begin with something not intended to
be the link. Readers will make that linkage
with the first piece of information capable
of it. Because readers are going to make
that connection whether you like it or not,
give them the correct backward link as
near to the beginning of every sentence as
is possible.
Here is what Chief Justice Warren
wrote:
The use of physical brutality and violence
is not, unfortunately, relegated to the past
or to any part of the country. Only
Published in Litigation, Volume 42, Number 2, Winter 2016. 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
recently in Kings County, New York, the
police brutally beat, kicked and placed
lighted cigarette butts on the back of a
potential witness under interrogation for
the purpose of securing a statement in-
criminating a third party.
Miranda, 384 U.S. at 446.
He connected backward to both the
past and any part of the country. The
connection works and is easy to follow be-
cause the target words came at the end of
the previous sentence. They were the last
thing on the readers mind; and they occupy
what I call the stress positionthe mo-
ment of syntactic closure that invites read-
ers to exert extra emphasis. (For more on
the stress position, see The Importance of
Stress: Indicating the Most Important Words
in a Sentence, 38 Litig, no. 1 (Fall 2011), at 20).
But a new sentence cannot always take
off from where the last sentence ended.
Were that a hard and fast rule of composi-
tion, writers would never be able to spend
more than one sentence on a given story.
The new sentence might need to continue
the story that was being told by its prede-
cessor. Because a sentence tends to be read
as the story of whoever or whatever was
the grammatical subject of its main clause,
that previous subject is an equally viable
and readable candidate for the new sen-
tences backward link.
Here is our example again, expanded to
include the two sentences that preceded it:
In a series of cases decided by this Court
long after these studies, the police re-
sorted to physical brutalitybeating,
hanging, whippingand to sustained
and protracted questioning incommu-
nicado in order to extort confessions.
The Commission on Civil Rights in 1961
found much evidence to indicate that
some policemen still resort to physical
force to obtain confessions. The use of
physical brutality and violence is not,
unfortunately, relegated to the past or
to any part of the country. Only recently
in Kings County, New York, the police
brutally beat, kicked and placed lighted
cigarette butts on the back of a potential
witness under interrogation for the pur-
pose of securing a statement incriminat-
ing a third party.
Miranda, 384 U.S. at 446.
This is relatively clear prose. We could
improve it by making two changes to the
sentence citing the 1961 study: (1) Make it
the story of some policemen, which would
make it the backward link (there was no
Commission in the previous sentence); and
(2) end the sentence with physical force,
which makes it easily available as the target
of the next sentences backward link:
As the Commission on Civil Rights in
1961 found quite rampant, police often
obtain confessions by resorting to physi-
cal force.
Once we have done that, we note that
the only new information in this sentence
is the citation of the 1961 report. Why waste
a whole sentence on that? The solution: Just
cite the report. The resulting paragraph:
In a series of cases decided by this Court
long after these studies, the police re-
sorted to physical brutalitybeating,
hanging, whippingand to sustained
and protracted questioning incommuni-
cado in order to extort confessions.
(Report of the Commission on Civil
Rights, 1961.) The use of physical brutal-
ity and violence is not, unfortunately, rel-
egated to the past or to any part of the
country. Only recently in Kings County,
New York, the police brutally beat,
kicked and placed lighted cigarette butts
on the back of a potential witness under
interrogation for the purpose of securing
a statement incriminating a third party.
The backward-linking connections are
made up front targeting either the whose
story or the stress position of the previous
sentences. Linking backward moves your
reader forwards. Thought flows. q
2