46 Plain Language

Michigan Bar Journal September 2009

By Joseph Kimble

Another Example from the Proposed 

New Federal Rules of Evidence

n the introductory essay to his book Garner on Language and Writing, Bryan Garner offers a sobering indictment: “a supermajority of lawyers—even 

law professors—grossly overestimate their writing 

skills, and underestimate the importance of those skills.” That’s 

the view of the preeminent authority on the subject. And what he 

says goes double for the category of legal writing that we call 

drafting—statutes, rules, contracts, wills, and the like.

So why has most legal drafting been so bad for so long? I posed 

that same question in the October 2007 Plain Language column 

and offered five reasons: (1) law schools have by and large failed 

to teach drafting; (2) most lawyers don’t fill the void through selfeducation, but rather tend to just copy the lumbering old forms; 

(3) young lawyers may have to “learn” drafting at the hands of 

older lawyers who never learned the skill themselves but who 

think their expertise in a particular field makes them adept drafters; (4) lawyers typically believe they should draft for judges 

rather than front-end users like clients, the public, and administrators; and (5) transactional lawyers seem more indifferent to 

the skill of drafting than litigators are to the skill of analytical and 

persuasive writing.

Let me add another reason, a cousin to #2: with rare exceptions, the apparent models that law students and lawyers have to 

work with are poorly drafted. Think of the Uniform Commercial 

Code, the United States Code, the Code of Federal Regulations, 

the Federal Rules of Civil Procedure until late 2007, most state 

statutes and regulations and court rules, most model jury instructions, municipal ordinances by the tens of thousands—the entire 

bunch. So pervasive is the old style of drafting that, unless we’ve 

somehow seen the light, we can’t help but regard it as perfectly 

normal and good, and we can’t help but internalize it.

I

But a remarkable thing happened in the early 1990s: the Standing Committee on (Federal) Rules of Practice and Procedure saw 

the light. The Committee recognized that the federal court rules 

were in a bad way, and it undertook the daunting task of “restyling” them set by set. It created a Style Subcommittee, which 

enlisted the help of a drafting consultant (first Bryan Garner, 

then me). The consultant prepared the drafts; they were meticulously reviewed by the Style Subcommittee and by the Advisory 

Committee for each set of rules; they were approved by the Supreme Court; and we now have new Federal Rules of Appellate 

Procedure (1998), Criminal Procedure (2002), and Civil Procedure 

(2007), and proposed new Federal Rules of Evidence (available for 

public comment at www.uscourts.gov/rules).

I think it’s fair to say that the appellate, criminal, and civil restylings have been remarkably successful. Everyone seems to agree 

that the new rules are much clearer and more consistent, and 

since they took effect, only a few corrections have been needed—

out of three complete rewrites. Still, during the public-comment 

periods, we heard from some quarters that “mere” restyling was 

not worth the effort or that restyling was a solution in search of 

a problem or that some other such objection loomed large. Never 

mind that the old rules were riddled with inconsistencies, ambiguities, disorganization, poor formatting, clumps of unbroken 

text, uninformative headings, unwieldy sentences, verbosity, repetition, abstractitis, unnecessary cross-references, multiple negatives, inflated diction, and legalese. (For dozens of examples, see 

the August–December 2007 columns.) Never mind that the old 

rules were a professional embarrassment. Never mind that those 

who would dismiss the restylings as unneeded must (as most 

lawyers do) have little regard for good drafting—or ease of reading. Never mind that they’d be willing to consign us to the old 

models forever.

So now the evidence rules have been restyled. Last month, I 

offered an example—a current rule with detailed comments, 

followed by the restyled rule. I’ll do the same this month. Try 

to put yourself in the place of a law student reading the current 

rule for the first time. And remember that just about all the evidence rules—certainly those of any length—can be given the 

same treatment.

The restyled version, besides fixing 30-odd drafting deficiencies, uses 41 fewer words, breaks the rule down into subdivisions, and converts four long sentences to six that are shorter 

by almost half.

‘‘Plain Language’’ is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the Plain English Subcommittee of the Publications and Website Advisory Committee. Contact 

Prof. Kimble at kimblej@cooley.edu. For a list of previous articles, 

go to www.michbar.org/generalinfo/plainenglish/columns.cfm. 

2009 is a notable year for the column.

of the column

Anniversary

25th
Plain Language 47

September 2009 Michigan Bar Journal

Drafting Deficiencies

1. Whose memory? Also, just glance at the rule. How discouraging is 

it to see such a stretch of unbroken text?

2. Wordy phrasing with a clunky citation. Note the three prepositional 

phrases. The restyled rule uses one.

3. For the purpose of is a multiword preposition. It should usually be 

replaced with to. Here it isn’t needed at all. The purpose is clear from 

what follows.

4. Why use a dash, rather than a colon, to introduce a vertical list? What’s 

more, the list appears midsentence—not the best practice. Some 

drafting experts allow it, but our guidelines for federal rules require 

that lists be placed at the end of the sentence. See Bryan A. Garner, 

Guidelines for Drafting and Editing Court Rules 3.3(B) (Admin. Office U.S. Courts 1996).

5. Strike in its discretion. It’s as useless as can be.

6. Add that after determines. Most verbs need that to smoothly introduce a following clause.

7. A classic. What does it refer to? What’s the antecedent? Actually, 

the reference is forward, but not to any identifiable noun. It refers 

loosely to what a party is entitled to.

8. Legalese.

9. As a rule, draft in the singular to avoid ambiguity. What if the adverse party wants to introduce just one portion? Sure, the plural 

probably covers that here, but other contexts might not be as clear. 

And by convention the singular includes the plural.

10. Use that when the relative pronoun introduces a restrictive clause, 

one that’s essential to the basic meaning.

11. An unnecessary prepositional phrase. Make it the witness’s testimony.

12. Why is this passive? Quick—who is claiming?

13. Is one matter enough? See note 9.

14. A lot of words for unrelated matter. We know that unrelated means 

unrelated to the testimony. Also, put a comma after testimony, which 

ends the long subordinate clause. Punctuation 101.

15. Make it must. Likewise in the next use (after objections) and the last 

use (after the order). And good riddance to the inherently ambiguous shall.

16. How about delete?

17. How about unrelated portion?

18. Even the passive voice—be delivered—is preferable to the nouner, 

the noun delivery with of. Better a verb than an abstract noun. See 

the February 2007 column.

19. How about rest?

20. Legalese.

21. Withheld by whom? See the miscue? Withheld by the judge or by 

whoever produces the writing? Using the same term as in the previous sentence—excise[d ] or delete[d ]—would make the meaning immediately clear. Consistency is the cardinal rule of drafting.

22. Is one objection enough?

23. A lot of words for must be preserved for the record.

24. Legalese.

25. Another miscue: pursuant to order modifies delivered, but not produced. Make it is not produced or is not delivered as ordered.

26. Strike under this rule as entirely obvious.

27. Should this be may? That’s the kind of trouble shall causes.

28. Insert a period and start a new sentence with But. That breaks up a 

60-word sentence.

29. How about does not?

30. Again, strike in its discretion.

31. Everything beginning with the order is indirect and rather clumsy. 

It should simply say that “the court must do X or Y.”

Current Rule 612

Writing Used to Refresh Memory1

Except as otherwise provided in criminal proceedings 

by section 3500 of title 18, United States Code,2

 if a witness 

uses a writing to refresh memory for the purpose of 3

 testifying, either—4

(1) while testifying, or

(2) before testifying, if the court in its discretion5

determines6

 it7 is necessary in the interests of justice,

an adverse party is entitled to have the writing produced 

at the hearing, to inspect it, to cross-examine the witness 

thereon,8 and to introduce in evidence those portions 9

which10 relate to the testimony of the witness.11 If it is 

claimed12 that the writing contains matters13 not related to 

the subject matter of the testimony14 the court shall15 examine the writing in camera, excise16 any portions not so 

related,17 and order delivery of 18 the remainder19 to the party 

entitled thereto.20 Any portion withheld21 over objections22

shall be preserved and made available to the appellate court 

in the event of an appeal.23 If a writing is not produced or 

delivered pursuant to24 order25 under this rule,26 the court 

shall27 make any order justice requires,28 except that in criminal cases when the prosecution elects not to29 comply, the 

order shall be one striking the testimony or, if the court in 

its discretion30 determines that the interests of justice so 

require, declaring a mistrial.31

Restyled Rule 612

Writing Used to Refresh a Witness’s Memory

(a) Scope. This rule gives an adverse party certain options 

when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice 

requires a party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a 

criminal case, an adverse party is entitled to have the 

writing produced at the hearing, to inspect it, to crossexamine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing 

includes unrelated matter, the court must examine the 

writing in camera, delete any unrelated portion, and 

order that the rest be delivered to the adverse party. 

Any portion deleted over objection must be preserved 

for the record.

(c) Failure to Produce or Deliver. If a writing is not 

produced or is not delivered as ordered, the court may 

issue any appropriate order. But if the prosecution does 

not comply in a criminal case, the court must strike 

the witness’s testimony or—if justice so requires—

declare a mistrial.
48 Plain Language

Michigan Bar Journal September 2009

A New Contest

Once again, I’ll send a copy of Lifting the Fog of Legalese: Essays on 

Plain Language to the first person who sends me (kimblej@cooley.

edu) an “A” revision of the single sentence below. I’m deliberately 

picking short examples to encourage participation. The deadline 

is September 24.

The sentence is from current Rule 608(b):

The giving of testimony, whether by an accused or by any 

other witness, does not operate as a waiver of the accused’s 

or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character 

for truthfulness.

A little hazy, right? The main subject and verb—giving and operate—are abstract, and when examined does not connect well with 

what it modifies. So here’s a hint: start with a strong verb—waive—

and then find a concrete subject. Besides clearing the haze, you 

should be able to cut almost half the words. No fair peeking online 

at the restyled version.

Last Month’s Contest

Last month, I invited you to revise current Rule 606(a):

A member of the jury may not testify as a witness before that 

jury in the trial of the case in which the juror is sitting. If the 

juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

The winner is Drew Slager, an associate with Mancini, Schreuder, 

Kline & Conrad. His revision, slightly edited:

A juror may not testify at trial before the jury on which he 

or she sits. If a party calls a juror to testify, the opposing 

party may object out of the jury’s presence. [Note: you won’t 

find he or she in the restyled rules, but it has its place in some 

drafting—used sparingly.]

Compare that version with the restyled version published for comment:

A juror may not testify as a witness before the other jurors at the 

trial. If a juror is called to testify, the court must give an adverse 

party an opportunity to object outside the jury’s presence.

Now I wonder: do we really need as a witness? And could we just 

say that “an adverse party may object outside the jury’s presence,” 

without the bit about the court’s giving an opportunity? We’ll see. Joseph Kimble has taught legal writing for 25 years at Thomas M. Cooley 

Law School. He is the author of Lifting the Fog of Legalese: Essays on 

Plain Language, the editor in chief of The Scribes Journal of Legal Writing, the past president of the international organization Clarity, a founding 

director of the Center for Plain Language, and the drafting consultant on all 

federal court rules. He led the work of redrafting the Federal Rules of Civil 

Procedure and the Federal Rules of Evidence.