(1) Although they were used in the 1990’s, derivatives since then have become much more sophisticated and common.

(2) Although used in the 1990’s, derivatives since then have become much more sophisticated and common.

Variation 1 is wordy; the second variation has stylish brevity. When you see is, are, was, or were in a subordinate clause, seize the opportunity to eliminate them and streamline your writing.

(1) Our company could deposit the effluent in a storage tank. This would be one way to solve the environmental problem.

(2) Depositing the effluent in storage tanks would be one way to solve the environmental problem.

(3) To deposit the effluent in storage tanks would be one way to solve the environmental problem

When a pronoun – such as this, that, or it – refers to the preceding sentence, the relationship is often vague. In variation (1), what’s unclear is what “this” refers back to; alternatively stated, what is the noun that should follow “this”: for example, “This method …” or “This tank …”?

Variation 2 adds clarity because it combines the sentences and uses a gerund. Variation 3 selects an infinitive to similar effect.

1. Event studies look at how the stock market reacts to corporate occurrences. Traders factor in significant legal events.

2. Event studies look at how the stock market reacts to significant corporate occurrences. Significant legal events are factored in by traders.

The first variation starts with event studies and closes with a definition based on “corporate occurrences.” The second sentence does not link to the last point of the preceding sentence – corporate occurrences. It introduces a new notion (traders), before returning to the corporate occurrences idea.

The second variation flows more easily from the corporate occurrences idea at the end of the first sentence to a restatement of it and then to the new idea (traders). Most sentences should early on link to a point made in the preceding sentence and go on to introduce something new, and so forth. I am indebted to George D. Gopen, Expectations: Teaching Writing From The Reader’s Perspective (Pearson Education 2004) for this fundamental pointer on style and logic.

1. The most important position in a sentence is the end, so we should emphasize it much of the time.

2. The most important position in a sentence, the one we should emphasize much of the time, is the end.

3. If your sentences have at the start their important ideas, your writing will improve.

4. The start of a sentence is the place for important ideas, if you want your writing to improve.

These two observations, which are far from mandatory rules but which strengthen both our writing and our thinking, come from George D. Gopen, Expectations: Teaching Writing From The Reader’s Perspective (Pearson Education 2004). Variation 1 buries the central point; variation two closes powerfully with that point in the stress position. Variation 3 conceals the main point in the middle of an introductory phrase; at the start Variation 4 stresses the main point.

When writing, ask yourself what’s most important that your sentence means to say. The answer suggests how to construct the sentence’s beginning and conclusion.

(1) The company wants to buy an interstate, natural gas pipeline company.

(2) The judge wants to buy an interstate, natural, gas, pipeline, company.

Usually, if you could insert an “and” between two adjectives (“interstate” and “natural”) and not affect the meaning, add the comma. Variation 1 does so. Variation 2 is all wrong. “Natural gas pipeline company” is a unit, none of whose three adjectives and a noun should be separated by a comma.

If the noun and the adjective (or adjectives) immediately preceding it are conceived as a unit, as is true with “natural gas pipeline company” omit the comma. I like the advice of Barbara Wallraff in Atlantic Monthly, June 2005 at 128. She suggests this test: “Does the first adjective apply to everything that comes after (no comma), or to the noun only (comma, please)? These variations carry the principal a couple of adjectives further.

According to Gerald Lebovits, in the NYSBA Journal, July/Aug. 2006 at 53, if you want your writing to be more concise, spot and remove nonstructural relative clauses.

(1) Our widget group believes its customer owes them $500,000.

(2) Our widget group believes that its customer owes them $500,000. The relative clause must be included because it is part of the structure of the sentence. The group didn’t believe the customer, it believed the relative clause phrase.

(3) We hope that the environmental group will appreciate the cost.

(4) We hope the environmental group will appreciate the cost. The relative clause should be stricken, because it is nonstructural. No one “hopes” a group.

You can strike the nonstructural “who,” “who are,” “who is,” “whoever,” “whom,” “whomever,” “which,” “that”, “that were,” and other variations.

As used to describe writing, “expletive” denotes the phrases “There are/is/were/was” and “It was/is.” Writing style usually improves if you expunge expletives.

(1) “There are three disadvantages of incorporating in Arkansas.”

(1a) “Three disadvantages follow from incorporating in Arkansas.”

(2) “There is an alternative to staggered terms for board members: class terms.”

(2a) “An alternative to staggered terms for board members is class terms.”

Plunge right into you sentence, without the emptiness of an initial expletive. There would be no better way to improve your style.

A series of prepositional phrases usually produces a turgid style.

(1) Major litigation increases the obligations of the law department in its reports to management.

(2) Major litigation increases the reporting obligations of the law department to management.

(3) Major litigation increases the law department’s reporting obligations to management.

(3) Major litigation increases the law department’s obligations to report to management.

Variation (2) eliminates one of the three prepositional phrases by inserting a gerund (“reporting”). The next variation takes that approach one step farther and creates two adjectives. In the fourth variation, the lawyer rewrites the prepositional information as two infinitives, which transforms the string of three prepositions.

A series of prepositional phrases usually marks a turgid style.

(1) Major litigation increases the obligations of the law department in its reports to management.

(2) Major litigation increases the reporting obligations of the law department to management.

(3) Major litigation increases the law department’s reporting obligations to management.

(4) Major litigation increases the law department’s obligations to report to management.

Variation (2) eliminates one of the three prepositional phrases by inserting an adjective (“reporting”). The next variation takes that approach one step farther and creates two adjectives. In the fourth variation, the lawyer rewrites the prepositional information as an infinitive, which transforms the string of three prepositions.

(1) A lease can raise many legal issues – wrongful sub-lease and failure to preserve as well as eviction and material misrepresentation.

(2) A lease can raise many legal issues – wrongful sub-lease, failure to preserve, eviction, material misrepresentation.

(3) A lease can raise many legal issues – from wrongful sub-lease and failure to preserve to eviction and material misrepresentation

Variation (1) lets the lawyer join together related ideas within a list, while variation (2) omits the customary comma, thereby creating urgency or tempo. With variation (3), the coordination’s use of prepositions conveys another kind of relation, such as increasing severity or timing.

(1) Some severance agreements contain broad non-competes. Many courts refuse to enforce unreasonable limitations on employment.

(2) Some severance agreements contain broad non-competes, but many courts refuse to enforce unreasonable limitations on employment.

(3) Some severance agreements contain broad non-competes; many courts refuse to enforce unreasonable limitations on employment.

(4) Some severance agreements contain broad non-competes. But many courts refuse to enforce unreasonable limitations on employment.

Variation (2) uses a familiar comma and coordinator before what has now become a clause. In (3) the more formal semicolon serves as the coordinator, while (4), more unusual and stylish, commands attention to the second sentence by starting it with a conjunction.

Absolutes, not the vodka of bottle-shape fame (which itself is an absolute), are phrases that look like sentences but lack the verb “be,” and let the lawyer add modifying details to a sentence. Because the absolute has its own subject, it can describe just a part of whatever it modifies.

(1) We tried to license the patent. Its value would be mostly for defensive purposes.

(2) We tried to license the patent, its value mostly for defensive purposes.

As illustrated, you can create an absolute by deleting a form of “to be.” You can also change the verb into its participial form (with an --ing).

(3) We tried to license the patent, valuing it mostly for defensive purposes.

With the absolutes of (2) and (3), the focus is on a part of the first clause, the patent.

(1) The 8-Q filing incurred all sorts of extra review costs that were different from the typical once-over-lightly and small fee.

(2) The 8-Q filing incurred all sorts of extra review costs, not the typical once-over lightly and small fee.

(3) The 8-Q filing incurred all sorts of extra review costs – far from the typical once-over lightly and small fee.

Version (1) is standard fare, not the stylishness of a negative appositive. Version (2) shows a negative appositive that defines “filing,” whereas (3) makes a more general comparison. Note that the comma in (2) creates a milder effect than the dash in (3).

An appositive follows the noun it defines.

(1) The lease provision stalled the negotiations as both sides considered how to allocate the income from signage rights. The provision was one-sidedly in favor of the landlord.

(2) The lease provision, which was one-sidedly in favor of the landlord, stalled the negotiations as both sides considered how to allocate the income from signage rights.

(3) The lease provision, one-sidedly in favor of the landlord, stalled the negotiations as both sides considered how to allocate the income from signage rights.

The first version clunks along with its two sentences. Version (2) improves the flow with a relative clause introduced by “which.” Version (3) shortens that form to an appositive, where you strip off the form of “to be” in the succeeding sentence, that defines the provision with emphasis and adroitly streamlines the prose.

A careful lawyer carefully locates participial phrases, because its position can change sentence rhythm, shift emphasis, create sentence variety, and link to the next sentence.

(1) Wanting to delay the closing past its fiscal year end, Big Company cancelled two meetings and left behind its key decision maker from the negotiating session.

(2) Big Company, wanting to delay the closing past its fiscal year end, cancelled two meetings and left behind its key decision maker from the negotiating session.

(3) Big Company cancelled two meetings and left behind its key decision maker from the negotiating session, wanting to delay the closing past its fiscal year end.

In (1), the lawyer puts stress on the reason for Big Company’s foot shuffling. (2) makes the reader pause twice and emphasizes Big Company and the cancellations. Variation (3) has an almost ironic tone to its added-on explanation for the delay.

(1) Lenders concern themselves the most with the quality, quantity and liquidity of the borrower’s collateral.

(2) The borrower’s collateral – lenders concern themselves the most with its quality, quantity and liquidity.

In English, the subject-verb-object (SVO) pattern is so ingrained that any departure from it catches the reader’s eye. Example (1) makes its point conventionally: lenders (S), concern (V), with collateral (O). The unusual start of (2) – “Collateral” – commands attention to that key word.

(1) After we agreed on the environmental indemnities, the negotiations moved more smoothly. The resolution of the hold-back reserve took hours and was far from smooth.

(2) After we agreed on the environmental indemnities, the negotiations moved more smoothly. What was far from smooth were the hours it took to resolve the hold-back reserve.

When you insert “what” and a form of “be” – either “is,” “was,” “are” or “were” – in the second sentence you convey more clearly the contrast between it’s point and the point of the preceding sentence. What you also gain is a tighter link between the two sentences.

One small contribution this blog aspires to has to do with definitions of terms (See my posts of March 22, 2006 on “general counsel” versus “chief legal officer,” Aug. 27, 2005 on “matrix reporting,” March 23, 2006 on “associate general counsel” versus “assistant general counsel,” and Aug. 14, 2005 on “technology.”). As the self-appointed Samuel Johnson of law department management (well, indulge my fantasy), I hereby decree the difference between “fixed fee” and “flat fee.”

A fixed fee covers more than one matter. For example, a law firm agrees to a fixed fee to cover all EEOC charges against a company for a period of time. What differs from a fixed fee is a flat fee.

A flat fee (also known as a “flat rate”) covers the cost for a single matter or task. Examples might be a flat fee of $4,500 to prepare a simple patent application or a flat fee for a law firm to prepare an early case assessment within 60 days of the suit being filed.

Whew, Boswell, a sticky wicket.

(1) To file the deed, complete the notary form. The form will perfect the security interest.

(2a) “To file the deed, complete the notary form that will perfect the security interest.”
(2b) ”To file the deed, complete the notary form which will perfect the security interest.”

Here is what I thought. “Which,” when used as a relative pronoun, indicates that what follows was definitional and not required: “The hat, which was old, fell off.” “That” as the relative pronoun indicates a necessary further definition of the noun: “The hat that was old fell off.” Not according to Max Morenberg and Jeff Sommers, The Writer’s Options: Lessons in Style and Arrangement (Longman, 2003, 7th Ed.) at 32.

Morenberg and Sommers say that (2a) and (2b) are equally appropriate, because “form” is a thing noun. If the subject noun phrase refers to people, then you can select “who” or “that.” Thus, “To file the deed, call a lawyer, [who or that] will perfect the security interest.”

(1) “Management wants this deal to close before the end of the quarter so that we can book the revenue this fiscal year.”

(2a) “Before the end of the quarter is when management wants this deal to close so that we can book the revenue this fiscal year.”

(2b) “So that we can book the revenue this fiscal year, management wants this deal to close before the end of the quarter.”

The most emphatic position in a sentence is the end. The beginning is the second most emphatic. So if a close by quarter’s end is that point that deserves the most stress, don’t bury it in the middle of the sentence, the way (1) does. You can highlight the important point by placing it at the start of the sentence (2a) or at the close of the sentence (2b).

(1) “They want us to return the widgets, which don’t work.”
(2) “They want us to return the widgets which don’t work.”

If none of the widgets work properly, (1) makes the point. If some of them work and some of them don’t, and we only want to return the non-working widgets, (2) does the job. A comma before a relative clause tells the reader that it is describing the preceding noun (“widgets”); omit the comma and the noun and clause fuse into one idea, where the clause is true of all the things conveyed by the noun.

(1) “The severance contract contains a problematic non-compete. The contract is governed by Delaware law.”
(2) “The severance contract, governed by Delaware law, contains a problematic non-compete.”

Sentence (1) suffers from the clunkiness of two short sentences that sing-song the same structure. Further, the writer gives the troublesome non-compete provision and the governing law equal importance. When a lawyer uses a gerund phrase, as in (2), the sentence flows and also makes clear that the applicability of Delaware law is of secondary importance to the non-compete difficulty.

(1) “The draft agreement lacks clarity on environmental concerns, creates major risks, and contains no addenda.”
(2) “The draft agreement lacks clarity on environmental concerns, creating major risks, and contains no addenda.”

Sentence (1) puts equal emphasis on all three verbs, “lacks” and “creates” and “contains.” In (2), however, the lawyer emphasizes a consequence of the draft’s unclear writing, the lack of precision of which plants the seed of major risk. The writer achieves that emphasis by the gerund phrase -- using a verb form [“creating”] as a noun.

To give equal weight to actions (verbs) you can use a compound structure – two or more balanced verbs joined by a conjunction. To indicate one of the actions is more important than the other, consider a gerund phrase.