– Wrong Words, Long Sentences, and Other Mister Meaners

1—102(3): The effect of provisions of this Act may be varied by agreement, except as otherwise provided in this Act and except that the obligations of good faith, diligence, reasonableness and care prescribed by this Act may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.

As drafted, the passage buries the actors—namely, the parties—and the action evaporates into prepositional phrases. Gopen’s revision focuses on what the parties may or may not do:

1—102(3) [redrafted]: Parties are free to agree to vary the effects of the provisions of this Act except

(a) when this Act explicitly provides otherwise, and

(b) when this Act prescribes obligations of good faith, diligence, reasonableness, and care.

When the obligations listed in i—102(3)(b) are involved, parties may agree to determine the standards by which the performance of the obligations is to be measured, as long as those standards are not manifestly unreasonable.

If your sentences are unclear, or if you are criticized for muddling your thought, look hard at your subjects and ask whether the ones you have chosen are appropriate. Check the location of the true topics of your sentence. If they are buried late in the sentence (or the paragraph), exhume them, put them where they belong, and let them resuscitate your sentence.

Transitions

Transitional words and phrases emphasize the character of the connection between sentences. You do not need to insert these transitions between every pair of sentences, because the logic of your thought, and the relation of your topics, should be strong enough to carry the reader from one sentence to the next. Occasionally, however, you can help the reader move along by pointing out certain types of connections. In the preceding sentence, “however” highlights the contrast (other transitions that enforce a contrast include but, nevertheless, on the other hand, although). Next, you can sequence your thoughts (using next, first, finally, in conclusion). Furthermore, you can indicate that one sentence adds to the preceding (using furthermore, moreover, also, in addition). That’s not all. In fact, you can dramatize your point (using in fact, as a matter of fact, indeed, even). Or you can illustrate a point, using for example, for instance, to illustrate. To highlight a cause-and-effect relationship, you can insert therefore, so, consequently, or as a result.

Choose your transitions carefully. They should complement, not undercut or blur, your meaning.

EXAMPLE: The brief is due in court in three hours. However, we

might get the judge to give us an extension.

PROBLEM: “However” expresses contrast, but what are the opposing thoughts here? The sentences imply but do not state a difficulty.

SOLUTION 1: The brief is due in court in three hours. However, we do not have time to finish it.

SOLUTION 2: We have only three hours left to complete the brief and six hours’ work remaining. However, the judge might give us an extension.

Run-on Sentences

In a run-on sentence, the writer mistakenly joints two independent sentences into a single sentence without appropriate punctuation. The run-on sentence can never be justified.

EXAMPLE: Maritime jurisdiction under the Suits in Admiralty Act is exclusive the Federal Tort Claims Act is not applicable to this action.

PROBLEM: Two sentences here: One ends after “exclusive” and the other begins with “the Federal.” A run-on sentence is always wrong. Fix this sentence with a semicolon or a period.

SOLUTION 1: Maritime jurisdiction under the Suits in Admiralty Act is exclusive; the Federal Tort Claims Act is not applicable to this action.

SOLUTION 2: Maritime jurisdiction under the Suits in Admiralty Act is exclusive. The Federal Tort Claims Act is not applicable to this action.

Sentence Length

Even if your sentence is grammatically and syntactically sound, it still may confound the reader if it is too long. For years, journalists, grammarians, and writing analysts have debated just how long is too long. Into the 1960s, tabloid newspapers would not permit sentences with more than seventeen words. Many of today’s newspaper editors frown on sentences exceeding twenty-five words. Rudolf Flesch, a lifelong critic of writing problems, developed what he termed a “readability formula” that gauges the difficulty of a piece of writing by calculating the average number of words per sentence and the average number of syllables per word.²² Under his formula, an essay written in one- and two-syllable words grouped in short sentences is highly readable; the longer the words and the longer the sentences, the lower the readability score. Thus a document whose sentences are of the form “John loves Mary” scores far higher than a document filled with sentences that resemble “Even though John is not given to a display of his deeper emotions, he allegedly has developed a profound affection for Mary, as compared to the more equable feelings he seems to have for Lucy, Fran, and, to an extent, Sue.”

Relying on Flesch’s work, some advocates of “plain English” recommend that writers restrict their average sentence length to twenty words or less, and limit their average word length to a syllable and a half. But common sense suggests that readability formulas alone cannot accurately measure difficulty. Consider, for example, this sparkling hundred-word sentence, the last in Lewis Carroll’s Alice’s Adventures in Wonderland:

Lastly, she pictured to herself how this same little sister of hers would, in the aftertime, be herself a grown woman; and how she would keep, through all her riper years, the simple and loving heart of her childhood; and how she would gather about her other little children, and make their eyes bright and eager with many a strange tale, perhaps even with her dream of Wonderland of long ago; and how she would feel with all their simple sorrows, and find a pleasure in all their simple joys, remembering her own child life, and the happy summer days.

But a hundred-word sentence expressing a complex concept would be unreadable and unintelligible. A sentence, Justice Cardozo warned, “may be so overloaded with all its possible qualifications that it will tumble down of its own weight.”²³ “One thought per sentence” is not effective when your thought is complicated; you will need two or three sentences. Under no circumstances should you include more than one complex thought in a single sentence. Jamming several thoughts in a sentence is a symptom of an occupational hazard that we call “headnote disease.”²⁴

Why sentence length affects the reader’s understanding is one aspect of the psychology of reading:

The sentence is the natural unit of thought, words are the artificial units. Thought operates not by words but by ideas, that is by sentences. In reading, the eye picks up one word after another until the idea is conceived and born in the mind; then the mind forgets the separate words and only the idea remains. Or, to put the matter another way, the words are the chaff out of which the mind must winnow and save the grain, which is the thought. As we read a page of print the thought passes into the memory in the form of an idea and not as a group of words…. The mind will readily turn back into the words the precise meaning of what has been read; but not into the same words unless they have been laboriously learned by heart…. The reason for short sentences in the work of a lawyer becomes at once obvious…. The reader is forced to break the [long] sentence up into fragments—to camp by the way, so to speak—while the mind catches up with the eye; or perhaps while it tries to catch up but fails and gives up the chase. Of course, such delay— and more particularly such failure—works disaster on the real meaning of the author.²⁵

EXAMPLE: Issuers, directors, underwriters, signatories of the registration statement, and professionals, whose reports or evaluations are used in connection with the registration statement, may all be found liable for these misstatements or omissions, subject to detailed affirmative defenses of due diligence contained in 11b.

PROBLEM: At least two thoughts here. Split the sentence.

SOLUTION: Those who may be found liable for these misstatements or omissions include issuers, directors, underwriters, signatories of the registration statement, and professionals whose reports or evaluations are used in connection with the registration statement. Their liability is subject to detailed affirmative defenses of due diligence contained in 11b.

EXAMPLE: In Chiarella, the Supreme Court reversed the conviction under Sect. 10(b) of the Exchange Act of an employee of a financial printer who had purchased the stock of companies that were about to become the targets of tender offers after learning of the proposed tender offers from documents that the acquiring companies had submitted for printing.

PROBLEM: Every possible qualifying detail has been packed into this sentence, a sure sign of headnote disease.

SOLUTION 1: In Chiarella, the Supreme Court reversed the conviction of an employee of a financial printer under Sect. 10(b) of the Exchange Act. The employee had purchased the stock of companies that were about to become targets of tender offers. He bought the stocks after learning of the proposed tender offers from documents that the acquiring companies had submitted for printing.

SOLUTION 2: In Chiarella, the Supreme Court reversed the conviction of an employee of a financial printer under Sect. 10(b) of the Exchange Act. The employee had learned about proposed tender offers from documents submitted for printing by the acquiring companies, and he then purchased the stock of the target companies.

EXAMPLE: Appellant’s failure to make an affirmative showing of injury means that he cannot prevail either on his claim that the amount of summation time he was granted was in itself inadequate or on his other allegation that the trial court’s distribution of summation time between plaintiff and defendants was in some sense unfair.

SOLUTION 1: Because the appellant failed to make an affirmative showing of injury, he cannot prevail on either of his claims— that he was not given enough time to present his summation or that the trial judge unfairly allocated the time to make summations.

SOLUTION 2: Because the appellant failed affirmatively to show an injury, he must lose on both his claims: (i) that he was not given enough time to present his summation and (2) that the trial judge unfairly allocated the time to make summations.

Overly long sentences come from hurried writing and meager editing. Under the best of circumstances, lawyers spurn periods. At times, they forgo periods altogether. They inhale deeply, spit out word after word after word, and never pause for breath. Consider this 161-word written harangue, all packaged in one sentence, from a justice of the Utah Supreme Court:

However, this does not mean that the Constitution of the United States, which in no uncertain terms says the states are supreme in this country and superior to the philosophy of federal protagonists who deign to suggest that a coterie of 3 or 5 or even 9 federal persons immune from public intolerance, by use of a pair of scissors and the whorl of a 10 cent ball-point pen, and a false sense of last-minute confessional importance, can in one fell swoop, shakily clip phrases out of the Constitution, substitute their manufactured voids with Scotch-taped rhetoric, and thus reverse hundreds of cases dimmed only by time and nature, but whose impressions indestructibly already indelibly had been linotyped on the minds of kids and grandkids who vowed and now would or will vow to defend, not only the institution of marriage and motherhood, but to reserve to the states a full budget of legitimate, time-tested mores incident to that doctorate.²⁶

Enough said.