No one should have to wait 94 words for a verb, and other observations from legal writing

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Sentences that never seem to end create a cognitive load on the reader. The longer and more convoluted they are, the worse it gets. Legal writers, in particular, seem to have a problem with this. The solution — as you’ll see from this egregious example — is to break things down and create structure.

An alert reader sent me this example from the Westlaw summary of the case “ANDREW CAROTHERS, M.D., P.C., etc., appellant, v. PROGRESSIVE INSURANCE COMPANY, respondent,” from April 5, 2017. Here’s the note about the jury instructions:

Jury instruction with regard to no-fault insurers’ defense of fraudulent incorporation to professional service corporation’s claim to recover unpaid claims for no-fault insurance benefits assigned to corporation by insureds, which instructed jury to consider whether nonphysicians owned or controlled corporation such that profits were funneled to them and whether leases between corporation and nonphysicians were arms’ length or meant to funnel profits to nonphysicians, and which required insurers to establish by clear and convincing evidence that nonphysicians were de facto owners of corporation who exercised dominion and control over corporation and its assets, adequately conveyed that insurers had to demonstrate that corporation was actually owned or controlled by non-physicians in order for corporation to be ineligible for reimbursement of claims under Insurance Law based on fraudulent incorporation.

Yes, this is a single sentence of 127 words. As my correspondent, who is a lawyer, remarked, “What is up with this refusal to use more than one sentence? Is there some kind of ration on periods?”

Perhaps there is a rule about this being a single sentence, but there shouldn’t be. There is a main verb here. Can you find it?

It’s “conveyed.” And it’s 94 words into the sentence. When it comes to suspense, Hitchcock has nothing on this sentence.

Making your reader wait 94 words for a verb is criminal. But this is a civil suit, so maybe they thought they could get away with it.

Break your sentences down into bit size ideas

Yes, lawyers and legal researchers, you can do this just as well as anyone else. Figure out what you want to say. Say it. Then add the details to explain it. And use structure — like lists — to make things easier.

The main point of this description is that the jury instructions were appropriate. So as I rewrite this into English that human can understand, let’s start with that. Here’s the main question:

Did the jury instructions in this case adequately convey what was necessary for the the insurers to prevail?

Then explain the context.

A professional service corporation that performed MRIs brought action against no-fault insurers to recover unpaid claims. The insurers’ defense is that the corporation was fraudulent, set up solely for the benefit of physicians.

Then add the content of the instructions, broken down into a list for easy reading. And let’s introduce the missing person here — the judge — so the jury instructions aren’t dangling out there like some magical incantation.

The judge instructed the jury to consider (1) whether nonphysicians owned or controlled the corporation so that the profits were funneled to them, (2) whether the leases in this corporation were legitimate (“at arm’s length”) or a sham, and (3) whether the insurers could establish by clear and convincing evidence that nonphysicians were de facto owners of the corporation, exercising control over its assets.

And finally the conclusion.

In this case, the jury instructions did adequately convey that the insurers had to demonstrate that corporation was actually owned or controlled by non-physicians. Otherwise, it was a fraudulent incorporation, and therefore ineligible for reimbursement of insurance claims.

Here’s the complete result all together:

Did the jury instructions in this case adequately convey what was necessary for the the insurers to prevail?

A professional service corporation that performed MRIs brought action against no-fault insurers to recover unpaid claims. The insurers’ defense is that the corporation was fraudulent, set up solely for the benefit of physicians. The judge instructed the jury to consider (1) whether nonphysicians owned or controlled the corporation so that the profits were funneled to them, and (2) whether the leases in this corporation were legitimate (“at arm’s length”) or a sham, and (3) whether the insurers could establish by clear and convincing evidence that nonphysicians were de facto owners of the corporation, exercising control over its assets.

In this case, the jury instructions did adequately convey that the insurers had to demonstrate that corporation was actually owned or controlled by non-physicians. Otherwise, it was a fraudulent incorporation, and therefore ineligible for reimbursement of insurance claims.

This is actually longer than it was, 154 words. But it is now six sentences, one of which includes a list. It’s actually navigable. While I’m no lawyer, I’m sure a lawyer could tweak the legal language to make it precise without destroying the meaning.

Sentences are not minivans

It’s easy to write by just adding ideas and qualifications to what you have already written, extending sentences endlessly. Easy to write, but hard to read. Don’t do it.

Instead, figure out the main idea. What is the subject (in this case jury instructions)? And what did they do (in this case, convey the correct meaning)?

Then elaborate and add detail.

Get in the habit of writing and editing this way. Even if you’re a lawyer.

3 responses to “No one should have to wait 94 words for a verb, and other observations from legal writing

  1. Amen, Josh. I try to impress this on my students. They’ll see professionals write like this, though, and they assume that it’s proper or even sophisticated.

  2. hi josh, even though most uni lecturers see it as beneath them to talk improved grammar with their students i had one who would always go on about ‘OSPs’ … one sentence paragraphs … have remembered this ever since and always removed though often during editing 🙂

    1. There are plenty of cases where one sentence paragraphs work. They are especially good if they are short sentences, used for emphasis.

      I still think the problem is with long sentences more than one sentence paragraphs.

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