Litigation Journal Articles
by George Gopen
From 2011 through 2023, Dr. Gopen produced a 1,500-word article every three months for the American Bar Association’s journal for trial lawyers, Litigation. Taken together they are are the briefest presentation of the principles that form his Reader Expectation Approach (REA), a new way of looking at and eventually controlling the written English language.
The articles to date include the following, each of which deals with a single aspect of REA.
1. A New Approach to Legal Writing
A short statement of the need for REA and the central principle at its foundation.
2. The Importance of Stress: Indicating the Most Important Words in a Sentence
An explanation of the single most important of the reader expectations — the expectation of where in the sentence the most important information will arrive. The location is referred to as “the Stress position.” Not putting the most important information in the Stress position is the single greatest cause of ineffective writing in all professions. Conquering this problem will improve almost everyone’s prose.
3. Ensuring Readers Know What Actions Are Happening in Any Sentence
Complicated texts in the professions — like legal briefs, scientific grant applications, or government publications — deal with complex matters, including the cross-currents of multiple actions. This article demonstrates how most readers tend to decide which of the author’s words are to be recognized as the sentence’s actions.
4. Whose Story Is This Sentence? Directing Readers’ Perception of Narrative
“Jack loves Jill.” Whose story is that? Most people (not all) will agree it is Jack’s. “Jill is loved by Jack.” Whose story? Most people (not all) will agree it is Jill’s. “Jill is loved by Jack,” despite its being longer and containing a passive construction, is not the inferior sentence if the writer is trying to tell Jill’s story. This article explores how readers go about perceiving whose story a given sentence is intending to tell. If a writer can consistently control the reader’s perception of whose story it is and what actions are happening (see the previous article), then 95% of the text’s readers will experience the narrative as the writer intended.
5. Controlling the Reader’s Perception of Your Client’s Story
This article expands on its predecessor, demonstrating how the control of the reader’s “whose story” perception sentence after sentence will control the reader’s overall perception of the narrative as a whole.
6. Who Done It? Controlling Agency in Legal Writing — Part I
The agent in a sentence is the doer of the action. This article explores the concept of agency and demonstrates when and how the writer should either express or suppress it. The discussion is continued in the following article.
7. Who Done It? Controlling Agency in Legal Writing, Part II
This article looks hard at nominalizations — nouns that are closely related to a verb. (Example: The verb “discuss” is directly related to its nominalized form “discussion.”) Like everything else in writing, a nominalization is neither good nor bad by itself, but only in context. Badly used, nominalizations can obscure both agents and actions from the reader’s view.
8. How to Overburden Your Reader: Separate Your Subject from Your Verb
Separating your subject from your verb, by inserting any number of supportive or burdensome qualifications, trailing one after another, forcing the reader to keep straining forward in expectation of finally finding the verb, which produces unwanted tension and reduces comprehension, can prove exhausting for readers. (As that sentence tried to demonstrate, separating its subject from its verb by 37 words.) But the length of the interruption is less important than the nature of its material. If you put something you want your readers to stress between a subject and its verb, precious few of them will have stressed it by the time they (wearily) finish the sentence.
9. The Style Proclaims the Lawyer: You Are What You Write
“Style” is choice. Your writing style is the sum total of all the choices you habitually make when you form sentences. Putting important material in weak places in the sentence’s structure will make you sound weak. This article demonstrates how an otherwise strong presidential candidate convinced voters that he was too weak to lead the country in times of crisis — all by his (speech writer’s) inadequate usage of the Stress position.
10. Why the Passive Voice Should Be Used and Appreciated — Not Avoided
“Avoid the passive”: This is the most widely disseminated piece of writing advice, promulgated by most books and in most classrooms across this country and over time. This article demonstrates why it is also the single worst piece of advice. Complex, sophisticated prose cannot be written effectively without the skillful use and control of the passive.
11. Controlling Crowded Sentences
It is insufficient to write a sentence that merely is capable of being interpreted the way you want; the sentence is sufficient only if it leads the great majority of your readers to understand what it is you wished to say. In school you could blithely litter the page with names and dates and buzz words, even if you didn’t understand their significance, and still get an A from teacher — because teacher already knew a way to put all those pieces together. In the professional world, you have to instruct your readers what to do with all your semantic building blocks. This article further explores how to control how your reader’s thought assembly, especially when the building blocks are numerous and varied.
12. The #2 Problem in Legal Writing: Solved
There are only three units of discourse a writer must know and be able to recognize while writing: (1) the main clause; (2) the qualifying clause (my term); and (3) the phrase. Readers value (1) more than (2), and (2) more than (3). This article explores how these relatively simple distinctions can make all the difference in the world to a reader trying to figure out what you are trying to say. Wasting the power of the main clause is the #2 problem in professional writing today.
13. Misconceiving the Writing Task: The Tollbooth Syndrome
Why is so much professional writing so difficult to read? This article proposes an answer to that question through the use of an old time automotive metaphor — “the Tollbooth Syndrome.”
14. Communicating Preference: Fred and His Dog
- Although Fred’s a nice guy, he beats his dog.
- Fred’s a nice guy, but he beats his dog.
- Fred beats his dog, but he’s a nice guy.
- Although Fred beats his dog, he’s a nice guy.
For each of these four statements, how does the author want you to feel about Fred? Each of the four produces a different result from a given audience; but those results remain remarkably consistent from audience to audience. This article explores why readers respond the way they do when given contrasting or even conflicting information. It is based on 25 years of group experiments, involving hundreds of audiences.
15. Important: Avoid Beginning Sentences with “The Court Held That. . .”
This article takes a detailed look at a particular example of the #2 writing problem in today’s professional writing. (The problem was introduced and explained in a previous article.) This particular sentence structure, commonly found in legal and scientific writing, does much more damage to the reader than one might imagine.
16. A Micro-Journey Through a Sentence of Horrors
This article explores a single sentence, written by one of my legal writing students at the Harvard Law School. 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.
17. Irrational Rules: Minuscule Mysteries of Grammar Demystified
If we were taught grammar at all, we were asked to memorize rules and enjoined not to break them. Many of us — especially 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 faintly returned; but many of its teachers had not themselves been educated in its mysteries. We have failed to understand that grammar should be approached not as rules but as tools — tools to help readers read. In this article, I look at three rules that are not founded on reason — the kind of rules that convinced us the rules were in the service not of readers but only of English teachers.
18. The Progress of Thought: To Move Forward, Link Backward
For a reader accurately to follow the flow of a writer’s thought, the reader must be able not only to make sense of a given sentence by itself, but also to transition seamlessly from one sentence to another. Writers can retain control of the reader’s interpretive process by explicitly announcing, as soon as possible, how any new sentence is meant to connect backwards to the sentence the reader has just finished reading. This article explores the nature and positioning of that backwards link.
19. What’s at Issue? The Construction of the English Paragraph, Part I
In the USA, most children are taught that a paragraph must include 5 sentences: The first states what the whole paragraph will contain; the second, third, and fourth render examples of that first sentence; and the fifth is a “conclusion” — although it usually is just a restatement of the first sentence. While this might be a good pedagogical exercise with which to introduce students to a manipulable structure, it becomes an intellectual liability when teachers do not mention that in the adult world, such paragraphs are almost non-existent. This article explores the inadequate 5-sentence paragraph and suggests ways in which it differs from paragraphs in the professional world.
20. What’s at Issue? The Construction of the English Paragraph, Part II
Most children in this country were taught to begin each paragraph with a “Topic Sentence,” which would introduce the reader to the topic the paragraph would explore and state the point to be made. In the professional world, paragraphs are usually more complicated in structure than that. The opening of the paragraph seems to state the issue of the paragraph; but the stating of the point may take place in a number of locations. The issue, moreover, may well take two or three sentences to state. This article deals with how long the issue statement can be and how the reader goes about perceiving it.
21. Connectivity: The Construction of the English Paragraph, Part III
Depositing all the right information into sentences doth not a good paragraph make. If a reader is going to understand the progression of a writer’s thought, the reader must know three important things about each sentence:
- Whose story is this meant to be?
- What are the most important words to be emphasized?
- How does this sentence connect backward and forward to its neighbors?
Knowing how to communicate the answers to these three questions allows a writer to sustain connectivity between sentences, making the reader’s journey from one end of the paragraph to the other a cohesive and coherent one. This article takes a careful look at a single paragraph to demonstrate how that authorial control can be mastered.
22. The Point of a Paragraph and Where to Find It: The Construction of the English Paragraph, Part IV
Little attempt is made to teach how sentences can connect to form paragraphs; and even less of an attempt is made to help writers control the connectivity from one paragraph to another. This article will explore how paragraphs can be constructed to help readers step with confidence from one to the next, thus allowing thought to flow from the beginning of a document to its end.
23. Five Varieties of Point Placement: The Construction of the English Paragraph, Part V
Legal readers have long accepted the sad news that legal writing must, by the nature of the subject matter, be difficult to process. But that sad news is bad news: Legal prose can flow and shine if the writer knows how to send the correct reading instructions, letting readers know how the moving parts are intended to be coordinated.
24. How Paragraphs Speak to Each Other
In earlier articles in this series, I have demonstrated what connections can be made between sentences so that they will lead seamlessly forward, allowing the writer’s thought slowly to unfold itself to the reader’s consciousness. The control over those sentence-to-sentence connections is in many ways similar to the control over a succession of paragraphs — but not altogether.
25. A Quiver of Punctuation: How to Handle Two Clauses in One Sentence
A writer’s lack of control over multi-clause sentences will, over the course of a whole document, slowly fatigue and mystify a reader. While the text might be error-free, and the words legally appropriate, something else will be constantly numbing the reader.
26. Numbers Do Lie: Why “To Make It Better, Make It Shorter” Is Inadequate Advice
I will state my point bluntly: The number of words in a sentence has nothing to do, by itself, with the sentence’s clarity.
27. Bad News
A writer can control the perception of the message with the order of the words in the sentences of the message’s paragraphs.
28. “I Know It When I See It”: A New Way to Define the “Plain” in “Plain English”
We all should be able to understand what our rights are under layaway plans, insurance policies, and real estate rental agreements. 37 States now require that documents like these must be written in what is called “Plain English.”
29. A Once Rogue Punctuation Mark Gains Respectability: What You Can Now Accomplish with an M-Dash
The M-dash has been nurtured in formal prose for a long enough time that we can now announce rules for its usage.
30. Understanding How Our Concept of the Writing Task Got Arrested at the Student Level and What to Do about It
No one told us that when we graduate for the last time, our rhetorical task of writing changes. In school, we were writing for an audience that had nothing to learn from us.
31. What Have the Muses Got to Do with Legal Writing?
We can be persuaded by prose that with ease and grace leads us forward to value some words or some ideas more than others.
32. What, in Addition to Its Contents, Makes the Gettysburg Address So Memorable
This essay will try to give you a new way of appreciating one of the greatest masterpieces of American political rhetoric.
33. Mr. Lincoln’s Music: The Tuning of the Final Paragraph of the Second Inaugural Address
The final paragraph is all one sentence; see how Lincoln makes his lyrical ending soar.
34. The First Two Paragraphs of Lincoln’s 2nd Inaugural Address
Lincoln uses rhetoric to produce a quiet, calm sense of control. He does this by his subtle manipulation of perspective, rhythm, and emphasis, with rhetorical techniques still viable today.
35. Mr. Lincoln’s Music: The Thorny and Monumental Third Paragraph of the Second Inaugural Address
The third paragraph, the longest of the address, deals with what Lincoln presents as the cause of the War – slavery.
36. The Power of Balance: Writing Lessons to Be Learned from John F. Kennedy’s Inaugural Address
This number of On the Papers will try to explain what trial lawyers can learn from a close investigation of how the language of Kennedy’s Inaugural Address – and especially its prose rhythms and its use of recognizable rhetorical figures of speech – was able to produce its memorability.
37. Failed Rhetoric: Why No One Can Recall a Single Sentence of Richard Nixon’s Speech Announcing the End of the Viet Nam War
No one remembers this speech. An examination of the reasons why will help you avoid such errors in your writing and speaking.
38. A Dog in Time: The Extraordinary Success of Richard Nixon’s 1952 “Checkers” Speech
Checkers was Nixon’s Cocker spaniel dog, which became the symbol of this very effective speech. The speech saved Nixon’s political future. He was speaking to ordinary people who would be concerned about a bit of financial chicanery on his part.
39. The Rhetorical Reasons Why Martin Luther King’s “I have a dream speech” Is One of the Greatest 20th Century American Oratorical Gems
[I urge you, either before or after reading this article – or both — to listen to the speech online. It is 16 minutes in length.]
Context controls meaning. It also affects memorability. The Reverend King gave this speech at the right place (in the shadow of the Lincoln memorial), at the right time (100 years after the Emancipation Proclamation), and at a moment of great racial intensity in our history. He had a captive audience of millions.
40. Judicial Musings: How Rhythm Helps Characterize Opinions
I have chosen to look at a case whose issue is not considered by most people to be earthshaking. I have chosen it because the majority decision and the dissent are composed with such different rhetorical musics. Understanding their contrasting use of prose rhythms helps us understand how and why they communicate with us. That, in turn, can make us more in charge of our own
prose.
41. Killing Me Softly with Your Song: Learning to Know How Your Audience Goes about Understanding You
For the 52 years I have been teaching, I have endlessly pondered how to keep an audience awake, alert, and willing to listen. As Director of the University Writing Program for two universities, I have had 20 years experience teaching rookie teachers (graduate students and law students) what I know about the subject. I would like to share some of that with you in this article.
42. Ave atque Vale: Retrospective Thoughts as I Lay Down My Pen
Just in case this turns out to be my last Litigation essay, I thought it might be appropriate for me to take a backward look at what I have tried to accomplish in this On the Papers column. In the real world, the important person where writing is concerned is not the writer; it is the reader. The only question that need be asked in order to determine the quality of a piece of writing is simply this: Did the reader get delivery of what the writer was trying to send?