From the Second Draft

Newsletter from the Legal Writing Institute

December 2005

Help for the Tone Deaf Legal Writer

Mary Barnard Ray, Legal Writing Specialist

University of Wisconsin Law School

“They just don’t sound professional.” About a decade ago, I began hearing this complaint from various employers about the writing coming from novice attorneys. The complaint was intermittent but persistent. Like a professional singer who is tone deaf, a legal writer who lacks an instinctive ear for the inappropriate tone must compensate quickly--or seek a new profession. The seriousness of this tone deafness was driven home to me when I was employed by several legal firms to consult with employees who needed to improve the professionalism of their documents to avoid losing their jobs. Fortunately, the problem was fixable and all the employees retained their jobs. Even more fortunately, this consulting experience taught me how to help law students avoid this problem in their future work.

The key to improving this professional tone lay in adjusting the writers’ word choice. Some of these writers, thinking that they should write like they speak, used contractions, current slang, and less precise words to sound friendly. When their employers told them that this writing sounded unprofessional, they responded by adding scholarly terms, such as multisyllabic, latinate words and unneeded legal terms. This response only exacerbated the problem because many of the contractions, current slang, and less precise words still remained. Other writers began by using the scholarly terms, but lapsed into more informal language when the right scholarly term did not come to mind. A few writers used the scholarly terms consistently, but received complaints that their writing seemed aloof and unfriendly.

Although words that are either overly informal or overly formal can create the wrong tone, using both too informal and too formal words created the most serious concerns. The problem was created when writers were used both informal and formal words in the same document, paragraph, or even sentence. This vacillation between levels of formality made the writer’s voice inconsistent, ranging from pompous or stuffy to emotional or careless, as the following examples illustrate. (Informal language is italicized; arguably stuffy language is in different typeface.)

Pursuant to Wis. Stat. Xx.x, statutory authority says the Board can’t grant tenure within a department if and when said professor was previously denied under the auspices of the same department.

Ms. Jascoviak could maybe claim that the cruise line breached its contract when it denied her the right to renegotiate her departure time as per its promise. Another claim I came up with was . . . .

This memo is not definitive of Ms. Jascoviak’s options. Finding a cause of action upon which to rest her claim could turn out to be a big job based on my research thus far. I did find some things that seem to be hinting at something feasible.

The writers needed to choose an acceptable level of formality and use words that fall within that level, as the following revisions illustrate.

The Board cannot grant tenure to a professor who was previously denied tenure by the same department in which he or she now seeks tenure. Wis. Stat. XX.x.

Ms. Jascoviak could claim that the cruise line breached its contract when it denied her the right to change her departure time as promised. She could also claim that . . . .

Ms. Jascoviak may have other options, such as . . . .

Usually these revisions for even tone also create a more concise text, an added benefit.

Inconsistent levels of formality are noticeable to a reader in part because the shifts force the reader to work harder than necessary to understand the text. When the tone of a text is consistent, the reader can often anticipate the phrase that will follow particular words or phrases. The reader is thus ready and waiting when the information appears as anticipated. When the tone is inconsistent, however, the reader does not know what to expect. Like a pianist accompanying a singer who drifts off key, the reader has to adapt and improvise to stay with the writer.

Readers also often notice inconsistent levels of formality because these inconsistencies make the reader uneasy about the writer’s expertise. Through word choice, a writer conveys his or her relationship to the reader and to the content. Inconsistent levels of formality create shifts in that relationship, so the writer appears inconsistent in his or her view of the content. The reader, sensing this, begins to question the writer’s reasoning.

Even when the content is not called into question, inconsistent levels of formality usually lead the reader to see the writer as less skilled, less in control. Literally, the writer is not in control of his or her words, and readers easily generalize this and see the writer as not being in control of the content. The writer loses credibility, which translates into looking less professional.

In correspondence, inconsistent levels of formality lead the reader to see the writer as insincere. Inconsistent levels of formality can appear to be glimpses of the real writer, the person behind the mask. Informal language creates a relaxed, more emotional communication. Formal language creates a stiffer, unemotional tone. While either of these levels of formality may be useful in some correspondence, inconsistent levels of formality are always problematic. A shift to a formal tone can make the informal friendliness of a letter’s opening sentences seem disingenuous. Informal language in an otherwise formal letter can appear to reveal the writer’s hidden emotions. Inconsistent levels of formality require the reader to make a decision about what to believe. Often, the reader’s decision is unfavorable.

The writers I worked with were universally trying hard to be professional. They were simply unaware of these shifts in the level of formality of their words. Their employers similarly were not aware of the shift in word choice, but they were left with this uneasy sense of the writer’s voice, and they labeled it as “sounding unprofessional.” Because both the employers and the employees were unaware of the source of the problem, they were unable to solve the problem easily. Employers complained about the lack of professional tone, and employees responded by inserting the professional language they learned in college and law school: multi-syllabic, Latin-based, unusual, and scholarly words. Their changes only exacerbated the original problem by increasing the variation in tone. Both grew gradually more frustrated with the writing and with each other.

Usually the frustration reflected a kind of generation gap. Although all educated persons adjust their vocabulary when writing, writers under age 40 often make different choices than writers over age 50.[1] Writers over 50 tend to use a business English tone, which is neither particularly formal nor informal. It is the vocabulary they used in high school, where more formal speech and writing was required but before they had attained the wider vocabulary of a college student. In contrast, writers under 40 either use the more informal vocabulary used in high school when the class room became more relaxed, or they use the more formal, scholarly vocabulary used in their college essays. Often, they vacillate between these two vocabularies. They know the business English vocabulary as well as people over 50; they are just not in the habit of using that vocabulary when they speak, and they tend to write like they speak.

Fortunately, the problem can be fixed when it is understood and described in a way that both employer and writer can understand. With a common vocabulary, the employer can give the employee clearer instructions about what is needed. Also, when the employee understands the problem, he or she can edit to remove the tone problems before the document reaches the employer.

To explain the problem of inconsistent levels of formality, I use clothing as a metaphor. I explain the varying formality of words and phrases by describing them as tuxedos, t-shirts, and business suits. Tuxedos are the formal words, which usually include longer words derived from Latin and Greek, multi-syllabic and unfamiliar words, and nominalizations. Tuxedos are the kind of words used when writing a scholarly article intended to impress other readers with your erudition, or when giving a formal or scholarly speech. T-shirts are the kind of words used in conversation with friends and colleagues. T-shirts include slang (“botched,” “screwed up”), exaggerated modifiers (“awesome,” “totally”), words with prepositions attached (“scoped out,” “had a hand in,” “put up with”), tired metaphors (“horse of a different color,” “bomb”), abbreviations

(“IMHO,” “OK”), and contractions (“can’t,” “wouldn’t”). Business suits are words that avoid either extreme. They are words that avoid driving the reader to a dictionary and avoid current trends in word choice. Business suits do not sound dated and are likely to still be used in ten years. They are identified by default; they are neither tuxedos nor t-shirts.

You may expand the classification to subdivide business suits into perhaps three sub-categories: three-piece suits, sports jackets, and business casual. Just as the business world allows a range of suitable dress, most writing has a range of suitable tones. For example, some writers may find the abbreviation “FYI” acceptable, while others prefer “for your information.” Sometimes employers can specify one of these sub-levels for their particular business image, while others allow the employee discretion in his or her personal style. But almost all employers want the writer to stay within this range of acceptability.

I begin by having students read some of their writing and identify phrases they use as T-shirts, tuxedos, or business suits. They can list these on a table. Then I have them fill in alternative words or phrases that communicate the same idea in a different level of formality. Usually the younger writers fill in the middle, business suit level last. The formal and informal terms come to mind first because they are the active speaking vocabulary. Eventually, however, they fill in the blanks and develop a table like the one below.

Different Levels of Formality

T-Shirt	Business Casual to Business Suit	Tuxedo
about that case	regarding that case	as to that case
soused, snockered, feeling no pain, etc.	drunk intoxicated	inebriated
a whole bunch of a lot of	many	myriad a great number of
think about, chew on	consider	give consideration to
clear up	explain clarify	elucidate
being that, since	because	in the situation where
given that	if	in the event that
can’t	cannot	lacks the capacity to
didn’t cut it, didn’t pass muster, flunked, bombed	failed did not succeed was ineffective	was inefficacious, attempted in vain, came to naught
might try, take a shot at	could, try	make an attempt to
say that	argue that	make the argument that
settle on	agree	concur
in a jam	have a problem	discomfitted
over with	ended	concluded
give a hand	help assist	facilitate
p.o’ed	angry irritated	infuriated, in a pique
gave in to	agreed to, gave consent, consented to	acquiesced to, acceded to
shell out	pay reimburse	remunerate

As writers develop this table, they begin to see the difference that wording can make. They begin to understand the problem troubling the employer. They also begin developing a solution, because they can use the table as a specialized thesaurus, finding the phrases they need to substitute for their tuxedo and T-shirt language. [2]

The focus throughout this learning process is not on increasing or changing the writer’s vocabulary itself. Writers know the business suit words they need to use. The problem is simply that the business suit word is not the first one the writer remembers and chooses when writing. Evening out the writer’s level of formality is a matter of replacing the first choice with a more “suitable” word.

The focus of learning in this exercise is on the writer’s awareness of the tone created by these levels of formality. When a writer learns to discern the different tone created by stuffy or informal phrases, he or she knows what phrase to substitute. And, if the writer has developed an extensive table of words, he or she has the answer close at hand.

When writers develop this awareness of the tone created by different words, they can then add a check for tone as a necessary part of the revision process. Somewhere after reorganizing but before checking spelling and punctuation, the writer can add a revision pass just to check for consistent levels of formality. For writers who have had a problem in this area, I suggest that they take time to make the needed revisions in all the documents they write, even their e-mail. Just as the writer needs to be consistent within a document, these writers need to be consistent across documents. This consistent, business-like tone does much to restore their credibility with their employers as well as with the readers of individual documents.

To help writers remember this revision step, I tell students that this revision is like one of those shooting games at a carnival. They need to look at their text carefully and shoot any words that stick out, whether they are tuxedos or t-shirts. By focusing on the phrase “if it sticks out, shoot it,” the writers move away from worrying about sounding formal enough and toward the need to be consistent. They also move toward developing a sense of humor about the eternal need to edit, which lightens the burden.

Editing for consistent levels of formality is a small task with large ramifications for legal writers. It is worth including in our editing classes, and fortunately can be taught quickly. When students understand the concept and develop a table that shows alternatives for common words they use, they have the tools they need to avoid criticisms about “sounding unprofessional.” Before long, they can find editing for consistent levels of formality to be as important as dressing appropriately for an interview, and as easy as shooting fish in a barrel.