Legal writing is all about groupings -- sets and subsets, and categories. These are the building blocks of logic. Accurate sets and subsets (accurate categories) increase the efficiency with which information is delivered, and the process of shaping sets and subsets forces a writer to confirm that the message is on point. Regrettably, the kind of precise grouping that typically takes place late in the editing process (e.g., rearranging items in sentences and short paragraphs) is sometimes skipped in the rush to get product out the door.
A principal cause of weak grouping is the tendency to put undue faith in the first or second rubric we choose for a set (i.e., the name we choose for a category). After all, we figure, if the thought came to us naturally, how could it be wrong? Life would be intolerable if we had to rethink all our thoughts.
The tendency to trust our initial groupings -- or resist distrusting them -- is compounded by the desire to be done with the task. To counter this unwholesome synergy, a writer should ask two questions before deeming any work concluded: "Are the characterizations of my sets accurate?" and "Are they the best available?"
Recently, an associate was asked to prepare a memo addressing whether an investment adviser can vote shares of stock owned by the mutual fund it advises. After presenting the question and short answer, the associate began the discussion by identifying the sources from which the answer was drawn:
This memo focuses on New Jersey's relevant case law in conjunction with the law as it is set forth in the New Jersey Business Corporations Act, Title 14A of the New Jersey Code. In addition, guidance can be found in the SEC release governing proxy voting by investment advisors and in the New Jersey Corporations and other Business Entities Practice Manual.
As a reader, I go where the words take me, like a driver following road signs. The memo said it would focus on two sources and then suggested, with the phrase "In addition," that it would focus on more sources ("This memo focuses on ... In addition, [it focuses on ... ]"). Consequently, I formed an expectation. The memo then disappointed me by changing direction with what seemed to be a new idea -- that "guidance can be found."
I experienced this phrase as a new idea, and I was confused by it, because it presented not only a shift in actor (from memo to guidance) but a shift in voice, from active ("This memo focuses ...") to passive ("guidance can be found"). With this double shift -- actor and voice -- I received the message that the memo was about two categories of information, not one. As it turns out, the four items can be grouped in one category -- sources consulted.
To be sure, the writer had a plan. Writers usually do. (I look for the writer's plan even in dysfunctional prose on the theory that acknowledging a bad plan may free the writer to embrace a better one.) Here, the writer intended to say that the memo would spend more time on the two primary sources -- case law and statute -- than on the secondary sources -- the SEC release and the practice manual.