CBA Record January 2018

Kimble’s lessons learned from the Federal Rules apply to all legal drafting. Keep the subject and verb–and the parts of the verb itself–close together. Whether legal or non-legal, writing in the English language is easiest to understand if the subject, verb, and object are close together. Wide gaps between any of these elements make it difficult for the reader to follow your prose. The Federal Rules are no exception. Examples: Old 32(a)(2) : (2) the deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or person designated under Rule 30(b)(6) or 31(a) to testify on behalf of the public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose. New 32(a)(3) : (3) Deposition of Party, Agent, or Designee . An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the parties officer, director, managing agent, or designee under the Rule 30(d) (6) or 31(a)(4). Root out unnecessary prepositional phrases. Question every of. Kimble is correct when he says, “There’s no sure way to tighten legal writing than to eliminate unnecessary prepositional phrases. And as simple as it may sound, there’s no better indicator than the word of .” (See my prior column “Sentences: Short and Sweet,” 19 CBA Record 56 (November 2005) about bogging down your sentences with too many prepositional phrases.) Some examples from the old and revised Federal Rules: Old 35(b)(3) : (3) …This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule. New 35(b)(6) : (6) …This subdivision does not preclude obtaining an examiner’s report for deposing and examiner under other rules. 4(f )(2)(A) : the law of the foreign country/ foreign country’s law. [Convert of -phrase to possessive.]

NOTA BENE

BY KATHLEEN DILLON NARKO PLAIN LANGUAGE MASTER FOCUSES ON DRAFTING Seeing Through Legalese

to non-litigators. Both seasoned and new attorneys will learn great tips. Every lawyer who drafts transactional documents or legislation needs this book. Kimble knows his stuff. As a professor emeritus at Western Michigan University– Cooley Law School, Kimble has taught legal writing for over 30 years. He was also the style consultant on revising the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Along with the Advisory Committee on Rules of Civil Pro- cedure, he painstakingly read every line of the rules and offered revisions to improve consistency and clarity. Kimble stresses the Advisory Committee went to great lengths to avoid any substantive changes. The revi- sions, public comment, and more revisions took more than two years to complete. Kimble‘s experience with the Federal Rules taught him some important lessons about drafting. First, he learned that law- yers have a lot to learn about drafting. “You think lawyers are good drafters? [The title of his first essay in the book.] No, I’m sorry, but most lawyers are not skilled drafters. It doesn’t matter how smart or experienced they are or how many legal documents they have drafted. Most–a supermajority, probably–are lacking.” Fortunately, he shares his lessons learned as the style consultant for the Federal Rules on how to improve drafting generally. Kimble explains in detail 19 lessons in drafting from the revised Federal Rules of Civil Procedure. I will cover a few below. (I only have 1000 words; you have to read the book for the rest!) Every lawyer–from litigators drafting settlement agreements to transactional attorneys drafting contracts– could use Kimble’s close eye for detail.

Kathleen Dillon Narko is a Clinical Professor of Law at NorthwesternPritzker School of Law and a member of the CBA Record Editorial Board. years. He describes his latest book, Se eing Through Legalese: More Essays on Plain Language , as continuing his life’s work. With its focus on drafting, this volume spreads Kimble’s plain language advice Professor Joseph Kimble on the quality of legal writing in the United States: Have things improved in the last decade, or indeed in the last 30 years? I think so. But nobody knows for sure…. And in any event, gains will always be incremental in a profession as tied to tradition as law. So forget the revolution. Just know that more forces are at work for better legal writing than ever before– in the law schools, in the literature, in the CLE courses, and various pockets of government, and in multiple organizations and groups worldwide. No revolution; just a gradual cutting down and cleaning up of one verbose pile after another, until readers can see more easily through the legalese–to the light of clarity. –Joseph Kimble, Seeing Through Legal- ese: More Essays on Plain Language (Carolina Academic Press 2017). P rofessor Joseph Kimble has been fighting “the good fight for clear, plain legal writing” for over 30

50 JANUARY 2018