November 14, 2018

A Systematic Approach to Editing

Great writing is misleading. It’s misleading because you see only the final product. The real work happens in drafts. Great writers are not great at writing, they are great at editing.

The same applies to legal writing. “Briefs are not written—they are re-written.” [1]

Yet most of us never learned how to edit. Here’s how most people edit: they start at the beginning and read to the end; along the way they improve the brief in any way possible. That asks a lot from yourself. This approach relies on mistakes “jumping” out at you or you being an impressive multi-tasking editor. It is a massive burden to just read and find everything that could be improved. Also, no one else does it this way.

By “no one” I mean other industries. For example, pilots don’t eyeball a plane’s appearance or just rev the engines; rather, they go through a checklist to see if a plane is ready to fly. In nearly every industry, quality control is a systematic process with multiple steps that look for particular issues. The same logic should apply to editing.

So let’s start learning how to edit. Start by separating drafting from editing. Avoid doing both simultaneously. Often we try to perfect a section before moving on. Instead, write the brief. Then move to editing. When editing, try using a system to make you more effective and more efficient.

Common Imperfect Editing Advice

Let’s begin by acknowledging the limits of common editing advice.

Read Your Brief Aloud

This common advice jives with the push for “conversational” writing. The theory relies on you “hearing” errors you might not “see,” like a clunky sentence. Intuitively, it makes sense. And it may help you find typos, unintended repetition, grammar errors, and awkward rhythms.[2]

But in practice it has limited use. You do not speak the same way you read. Your writing has no volume, pitch, inflection, pauses, or gestures.[3] More importantly, you probably do not speak the same way your audience reads.[4] For an illustration, look no further than American sweetheart Tom Hanks describing how he read the same line dozens of different ways in Toy Story.[5]

This approach can help, but usually does not lead to significant edits.

Fresh Eyes: Put it Down and Come Back in a Few Days

Many suggest finishing a brief, not tinkering or thinking about it for a while, and then returning with fresh eyes. Presumably the method brings you closer to your reader, who might only read your brief once and who lacks your legal and factual background of the case. In a perfect world, this makes sense.

But we don’t work in a perfect world. Few attorneys complete drafts days or weeks before a deadline. Even if you did, your memory outsmarts this method. As you start to read the draft, you start to remember. You may not remember every word you wrote, but you start to remember the facts, the law, the organization, etc. Every bit you remember undermines this method.

This approach has value, but circumstance limits its usefulness.

Have a Non-Lawyer or Someone Not Involved in the Case Read It

The logic seems to be that if someone with no knowledge of the case can easily read the brief and understand your points as you intended them to be understood then the brief is well-written. The principle is sound and there is always value to a second set of eyes (or third, fourth, or fifth for that matter). But be cautious of attorney-client privilege and work product issues. And keep in mind you write for a particular audience. In some ways judges are like most people, in other ways they are not.

Computer Programs

Most word processing programs have writing tools. For example, Microsoft Word has the Flesch Reading Ease test and the Flesch-Kincaid Grade Level test.[6] Both tests measure the numbers of words in each sentence and syllables in each word.[7] A similar test is the Gunning Fog Index. [8] The premise is shorter words and shorter sentences are easier to read. The drawback is shorter words and shorter sentences are not always easier to read. And making something shorter is not always the most effective technique. Still, the tests can help identify sections that need reworking.

Other computer tools identify passive voice.[9] This could be useful if you commonly misuse passive voice. But there is nothing wrong with passive voice; it is neither inferior nor superior to active voice, and there are many times when it is highly effective. So unlike spell check, this tool does not identify an error that needs correction.

Numerical Benchmarks and Other Rules of Thumb

“Cut 10% of your words,”[10] “don’t let your sentences stretch longer than twenty-five words or two lines,”[11] “break up sentences if you have to breathe in the middle of them,”[12] etc. Editing is not this easy.

These shorthands are well-intentioned poorly crafted advice. Besides being arbitrary, they force edits without explanation. They don’t teach you anything and risk you overshooting or undershooting. And they deprive you of judgment. If you think your sentences are confusing because they are “too wordy,” figure out where and why they are “too wordy.” Odds are your sentences are confusing because there is information between the subject, verb, and direct object, not because there are too many words.[13]

An Editing System

As common as the above techniques are, many legal writing books don’t contain them. Rather, they encourage using an editing system. These systems ensure you check for certain types of edits. Here are two systematic approaches to editing.

Multi-Stage Methods

When you have time for thorough editing, multi-stage methods use multiple rounds to create polished briefs. Each round looks for different types of edits. Generally, each stage has a theme. Here are a few examples.

Professor Betty Flowers proposed a breadth-to-depth method sometimes abbreviated as “Madman, Architect, Carpenter, Judge.”[14] The approach begins with freestyle unrestricted writing without any thought of editing (Madman).[15] Then revise by identifying chunks of relevant material and arranging them into a general argument; focus on organizing sections and paragraphs (Architect).[16] The next round is sentence-by-sentence editing, which includes checking the logic of your argument and transitions (Carpenter). Then a word-by-word check for aspects like spelling, grammar, and tone (Judge).[17]

Bryan Garner supports a two-round method. One level focuses on “basic edits” like cutting legalese, using stronger verbs, making active/passive voice decisions, checking use of the word “of,” and checking punctuation.[18] The second level focuses on “edits to refine,” like checking whether the brief states the main point quickly and clearly, adequately addresses counter arguments, has an informative lead-in to long quotations, uses memorable phrasing, uses bullet points when helpful, and employs the right tone.[19]

Tom Goldstein and Jethro Lieberman propose another variation. They suggest editing in five steps. The first round looks for structural issues like road maps, conclusions, paragraph structure, and transitions.[20] The second step edits for length by cutting unnecessary discussions and redundancies. [21] The third step improves clarity by analyzing nominalizations, active/passive voice, phrasing, and openings. [22] The fourth step checks for continuity issues like logical order and transitions. [23] The last step proofreads for typos, capitalization, and punctuation. [24]

Stephen Armstrong and Timothy Terrell put it nicely: “Editing should be methodical.”[25] Their process has the following stages:

  • Editing for the audience by checking the tone, length, and basic approach
  • Editing for clarity of organization
  • Editing for the coherence of paragraphs and smoothness of transitions between and within them
  • Editing for the clarity of sentences
  • Editing for correctness of grammar and punctuation
  • Proofreading[26]

Try one of these multi-stage methods. They are helpful reminders of the many issues worth checking during editing. Although time-intensive, they often yield a much stronger final product.

Checklist Methods

If you have a tight deadline or prefer more direct instructions, checklists are powerful editing tools. Make a list of edits you want to always check for, or edits that you frequently miss.

For example, Daniel Klau provides this list of issues worth checking:

  • In the beginning state why you wrote what follows
  • Shorten your sentences
  • Avoid legal and technical jargon
  • Avoid overusing abbreviations and acronyms
  • Cut irrelevant information
  • Use familiar terms and concrete examples
  • Logical argument
  • Transitions
  • Avoid inserts and clauses that break flow
  • Active/passive voice[27]

A checklist based off the articles in this writing series looks like this:

  • Introductions
  • Citations
  • Headers
  • Quotations
  • Visual aids
  • Storytelling strategy
  • Adjectives and adverbs
  • Parentheticals
  • Active and passive voice

Conclusion

For everyone. “Good editing requires the right attitudes, not only the right technique.”[28] Be humble. Not everything you write is gold. And the best writers you admire probably edited their works dozens of times. Be willing to change your words.[29] Be willing to change how you edit.

For editors who are not the primary author. Editing is a superb teaching tool, but only when the other attorney understands why you made the edits.[30] It is very hard to distinguish between edits that make your writing better, and edits that just make your writing different. So when editing someone else’s work, show or explain why the edits are more than stylistic preference. Along the same lines, when editing for someone else, sometimes identifying the problem is enough. Let the primary authors use their creativity and knowledge of the case to solve the problem.[31]

For primary authors who are not the primary editor. There is always value to an edit. If you disagree with an edit, great. That means you have an informed opinion about how and why you wrote a particular way. Even if the edit is wrong—it creates a grammatical error or does not fix the problem—there is still something to learn from the edit. Something about your writing caused at least one reader to lose focus. It is easy to dismiss an edit as a stylistic dictatorship; e.g., this attorney always thinks “however” should never start a sentence. But maybe “however” is the wrong transition. Maybe another word or phrase would be a better transition. Or maybe what precedes and follows the “however” do not connect. Find value in every edit.


[1] Daniel J. Klau, Appealingly Brief: The Little Book of Big Appellate Tips 4 (2015)

[2] See George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 151 (2004).

[3] Id. at 150-51; George Gopen, “The Importance of Stress: Indicating the Most Important Words in a Sentence,” 38 Litigation 1, 1-2 (Fall 2011), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_2_stress_position.pdf (last visited August 8, 2018).

[4] Gopen, supra n. 2 at 150-51.

[5] Inside the Actors Studio, “Tom Hanks Talks About Toy Story,” YouTube (May 31, 2010), available at https://www.youtube.com/watch?v=SwWrSdm81Z4.

[6] “Test your document’s readability,” Microsoft, https://support.office.com/en-us/article/test-your-document-s-readability-85b4969e-e80a-4777-8dd3-f7fc3c8b3fd2 (last visited August 8, 2018). See Ross Guberman, “Can Computers Help You Write Better,” Legal Writing Pro, available at https://www.legalwritingpro.com/articles/can-computers-help-write-better/; Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 79-80 (2d ed. 2014).

[7] Microsoft, supra n. 6.

[8] See Klau, supra n. 1 at 22.

[9] See Guberman, “Can Computers Help You Write Better,” supra n. 6; Guberman, Point Made, supra n. 6 at 79-80.

[10] See Guberman, “Can Computers Help You Write Better,” supra n. 6 (cut 10%). See also Bryan Garner, Legal Writing in Plain English 163 (2d ed. 2013) (cut each sentence by 25%).

[11] Bruce Ross-Larson, Stunning Sentences: The Effective Writing Series 18 (1st ed. 1999); See also Garner, supra n. 10 at 27-29 (average sentence length of twenty words); Klau, supra n. 1 at 21-22 (average sentence length of 15 to 18 words).

[12] Bruce Ross-Larson, supra n. 11 at 18.

[13] See Garner, supra n. 10 at 31-32; Gopen, supra n. 2 at 18-20. See also George Gopen, “Ensuring Readers Know What Actions Are Happening in Any Sentence,” 38 Litigation 2, 1-2 (Winter 2012), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_3_actions_and_verbs.pdf (last visited August 8, 2018).

[14] Betty S. Flower, “Madman, Architect, Carpenter, Judge: Roles and the Writing Process,” available at http://www.ut-ie.com/b/b_flowers.html (last visited August 8, 2018).

[15] Id.

[16] Id.

[17] Id.

[18] Garner, supra n. 10 at 162-63.

[19] Id.

[20] Tom Goldstein & Jethro K. Lieberman, The Lawyers Guide to Writing Well, Revising and Editing 164-76 (2016).

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing 310 (3d ed. 2009).

[26] Id. at 312.

[27] Klau, supra n. 1 at 21-26.

[28] Armstrong & Terrell, supra n. 25 at 313.

[29] Id. at 313-14.

[30] Id.

[31] See id. at 315-30.

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

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