Judith D. Fischer's blog
The Kentucky Supreme Court held oral arguments at the University of Louisville Brandeis School of Law this week. During a Question and Answer period, the justices gave the students this advice about brief writing:
● Be brief. The justices don't mind if your brief is shorter than the maximum length.
● Don't use six words if you can make your point in three.
● Use simple, direct language. The brief should be crystal clear.
● Sometimes you need to use legal terminology, but avoid legalese.
● Don't say "clearly"-- it actually weakens a statement.
● Don't use words like "egregious" in an attempt to inflame the reader. We just want the facts.
● It's annoying to read a poorly organized, confusing brief. So edit repeatedly to improve organization and clarity. Don't give us your third or fourth draft -- give us your ninth or tenth.
● Edit to eliminate grammar and spelling errors, which make a bad impression on the court.
● Don't misstate the law or the facts. Those errors damage your credibility with the court and co-counsel.
Several of the court's research attorneys were present, and they emphasized the importance of avoiding errors in citations to the record. It's annoying, they said, when they look for something and can't find it because the citation is wrong.
A writer who wants to avoid gender bias can adopt "gender-neutral language" (sometimes called "gender-inclusive language" or "nonsexist language"). Some people object to gender-neutral language on the ground that it leads to awkward phrasing. But that need not happen.
One cause of gender bias is the use of supposedly generic masculine pronouns. These occur in general statements where the sex of the referent is unidentified or unknown. Suppose the writer's first draft includes this gender-biased statement: "A lawyer should frame his argument in persuasive language." Use of the supposedly generic "his" is jarring now that many lawyers are women. But there are numerous graceful ways to revise the sentence for inclusiveness, as the following examples illustrate.
1. Make the noun plural so a plural pronoun fits. "Lawyers should frame their arguments in persuasive language."
Comment: Note that in formal writing, it is not correct to use a plural pronoun to refer to a singular noun. So both the noun and the pronoun must be changed here.
2. Use paired pronouns. "A lawyer should frame his or her arguments in persuasive language."
3. Reframe the sentence to eliminate the pronoun. "A lawyer's argument should be framed in persuasive language.
Comment: This version changes the sentence to the passive voice, which makes it more wordy and less direct. Many stylists urge writers to use the active voice for most sentences.
4. Alternate pronouns. "A lawyer should frame his argument in persuasive language. This may convince the judge to write her decision in his favor."
In choosing among the above options, a writer should consider the context. A primary goal should be to avoid making the reader stumble over cumbersome phrasing. Alternatives 2 - 4 can become annoying if they are repeated too often in close proximity, so they should be used carefully.
These are common suggestions for eliminating biased pronouns. Later I'll discuss some less common tactics.
--The Word Aficionado
Are judges using gender-neutral language in their opinions? My recent study showed that they are. I used 1965 as a benchmark year because it predated twentieth-century feminists' call for gender-neutral language. I then compared U.S. Court of Appeals decisions from that year with those from 2006, and found a statistically robust increase in the use of gender-neutral pronoun pairs (such as "he or she.") For my draft article reporting the study, see http://ssrn.com/abstract=1156985 .
One cause of gender bias in English is the generic "he"-the practice of using masculine pronouns to supposedly represent both males and females, as in the sentence "A lawyer should file his brief on time." Readers of my study may be surprised to learn that generic masculine pronouns are a relatively recent innovation in English, dating back to male grammarians' decrees in the eighteenth century.
--The Word Aficionado