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How attention to style improves substance
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How attention to style improves substance

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ABA Journal

How attention to style improves substance

Aug 23, 2013, 09:45 pm CDT

In 1991, the late Judge Robert E. Keeton of Boston, serving as the chair of the U.S. Judicial Conference’s Standing Committee on Rules of Practice and Procedure, appointed a subcommittee to improve the style of federal procedural rules. It was an ambitious undertaking that, from its inception, was dogged by naysayers.

Ultimately, however, the Keeton plan succeeded to a degree that nobody at the outset could have ever envisioned. Within 20 years, all four major sets of federal rules—appellate, criminal, civil and evidence—would be wholly rewritten from beginning to end, all in a uniform style free of verbosity, unidiomatic language, awkwardness, needless legalese, inconsistent wordings, dense run-in lists, ungrammatical phrasings and other infelicities that made the rules difficult to read and follow.

Keeton’s initial idea was simply to improve the amendments that the specialized advisory committees were bringing before the standing committee. Keeton appointed a five-member Style Subcommittee chaired by professor Charles Alan Wright, the acclaimed proceduralist and treatise writer. The original members were Keeton himself, Judge George C. Pratt, Judge Alicemarie H. Stotler and Joseph F. Spaniol, the former clerk of the U.S. Supreme Court. All knew a good deal about writing style and, more important, cared.

Soon after the Style Subcommittee’s work began, Wright saw that the workload was extraordinarily heavy and decided to retain a reporter, or consultant. Two names came to their attention: mine and one other law professor’s. Both of us were interested in serving, but Wright wanted only one reporter. So he devised a test provision—one that both prospective reporters could edit as a kind of tryout. Our revisions ended up reading quite differently, and the subcommittee made a decision: I would be the reporter beginning in late 1992.

The Standing Committee meets twice yearly. When Keeton was chairing meetings (through 1995) a great deal of time was spent on getting the style of proposed amendments just right before they would be distributed for public comment. He or Wright would frequently interrupt the discussion to ask my opinion on the wording, and the Style Subcommittee members supported almost every suggestion I made before the votes were cast. Spaniol would frequently hand me suggested edits—brilliant ones, almost always—and I would briefly explain the improvements before an amendment would be adopted.

To those interested in rule drafting and legal style, the standing committee meetings chaired by Keeton were illuminating, instructive and even thrilling. We were carrying into effect the legal-drafting theories elaborated from the mid-19th century on by such luminaries as George Coode, James Fitzjames Stephen, Lord Thring, Elmer Driedger and F. Reed Dickerson. The end product was something the Style Subcommittee took great pride in.

Click here to read the rest of “How attention to style improves substance” from the August issue of the ABA Journal.

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