by Beth McCormack, Esq.
Quick Proofreading Tips for Busy Attorneys Introduction
Proofreading mistakes are among the most embarrassing mistakes a lawyer can make, but they happen every day. Few among us have not turned the word stat- ute into statue or based a motion to sup- press on a lack of “probably cause” in our haste to meet a deadline. Or even worse, we have scandalized a memo by inadver- tently writing about a “pubic hearing” in- stead of a public one. These mistakes are embarrassing, without a doubt, but costly too. Not only can they damage our cred- ibility as attorneys and hurt our reputation with our clients, judges, and colleagues, but sometimes these mistakes can have fi- nancial consequences. Consider the case of a Minnesota attorney who was sanc- tioned and ordered to attend ten hours of legal writing classes because the docu- ments he submitted to the court were “ren- dered unintelligible by numerous spelling, grammatical, and typographical errors” and these mistakes were “sufficiently se- rious that they amounted to incompetent representation.”1
In the court’s view, “[p]
ublic confidence in the legal system is shak- en … when a lawyer’s correspondence and legal documents are so filled with spelling, grammatical, and typographical errors that they are virtually incomprehensible.”2 Transactional lawyers are also vulnera-
ble to proofreading mistakes, with higher stakes where precise wording or punctua- tion is critical; mistakes may lead to mal- practice. Just ask the lawyer who drafted the postnuptial agreement between Frank McCourt, the former owner of the Dodg- ers, and Jamie McCourt, his former wife. Their postnuptial agreement stated Frank was the sole owner of certain property “in- cluding” the Dodgers franchise.3
At least
some of the original copies did. After their divorce,
Mrs. McCourt discovered that
three originals of the documents substitut- ed the word “including” with “excluding.” Of the six originals, three had Mr. McCourt owning the franchise solely and the other three had Mr. McCourt owning the fran- chise equally with Mrs. McCourt. The at- torney who drafted the postnuptial agree- ment insisted that “excluding” was just a typo and those documents should have read “including.” Typo or not, the court ruled that the document was ambiguous.4 And the rest is history: Mrs. McCourt had a claim for joint ownership of the Dodgers franchise, Mr. McCourt was forced to settle with her, the McCourt divorce became one of the costliest divorces in California histo-
30
ry, and the drafting attorney was exposed to a malpractice claim.5 Examples of proofreading and typo di- sasters abound, and many of you may have your own horror stories, which prompts the question, why is proofreading so hard? Why can we look at a document today that we wrote two weeks ago and spot typos im- mediately when they were invisible during several rounds of proofreading then? Lack of time is part of the problem, but the big- gest culprit is our short-term memory. Our short-term memory forces us to see what we intended to write on the page rath- er than what we did.6
So to increase our
chances of catching typos and other mis- takes, we must break the short-term mem- ory’s hold. This article offers several quick suggestions on how to do so.
Time
The gold standard for proofreading is to give yourself time between completing your draft and your first proofread. Days are ideal. The passage of time will result in a break in your mind between what you think you wrote and what you actually wrote, thereby allowing you to see what’s actu- ally on the page. This solution is probably as obvious as it is unrealistic to most busy lawyers. Most of us simply do not have the luxury to wait days before proofreading a document that was due to a court, a client, or a boss yesterday! In that case, even a short physical separation between you and the document can help. Try to finish a doc- ument at night and proofread it first thing in the morning. Or at the very least, take a break after you complete the document before you begin proofreading. There are a few other quick tricks you can try to in- crease the chances of catching typos and other mistakes, some tips that you use on a computer and some with hard copy.
Computer Tips and Tricks
Computer Tip 1—Control-Find: The Legal Writer’s Best Friend The “control-find” function on your com-
puter’s word processing program is an ally in your fight against typos. Just hit “Con- trol” and then the “F” key, and a text box appears on the screen. 7
I maintain a list of
troublesome words and punctuation that I run through that text box in my finished document. Here are some of the things on my list:
1. The Three Great Grammar Gaffes THE VERMONT BAR JOURNAL • WINTER 2014
When training attorneys in legal writing, author Bryan Garner refers to three com- mon grammatical mistakes as the “three great grammar gaffes.” They are: • Their/There • Your/You’re/You • Its/It’s
Most of us know the correct usage of these words. But whether by lack of time, spell check, or some other slip of the hand, the wrong use can creep into our writing, and few mistakes are more embarrassing. Therefore, when I’m done with my docu- ment, I’ll spend some time “control-find- ing” each of these words so that I can scru- tinize them and be sure I’ve used the cor- rect form. This trick works for emails too— another place where these grammar mis- takes sometimes sprout. The act of using the control-find function lets you focus just on the word and the sentence that contains it, breaking the short-term memory’s hold.
Another spell check tip is to avoid automatically hitting “ignore” when your spell check stops on a case name. Typos and spelling mistakes love to camouflage themselves in case names. When your spell check stops on Allegheny, use the oppor- tunity to verify you have spelled Alleghe- ny with the right number of “l’s” and “e’s,” and while you’re at it, check the citation form and pincite as well.
3. Forms of the Verb “to be” and the
Word “by” In a recent VBA Journal article, Professor Brian Porto extolled the virtues of the ac- tive voice.9
The active voice is “more direct
and vigorous” and “forceful” than the pas- sive voice, which tends to obscure the ac- tor.10
In short, usually, active voice is good, and passive voice is bad. For most of us, it’s been a while since grammar class, and while we know we should prefer the active voice, recognizing the passive voice may not come easily. Control-find can help here too. To have the passive voice, you need a form of the verb “to be” plus a past parti- ciple. The most common forms of the verb “to be” are: am, are, was, were, been, be-
www.vtbar.org
2. The Spell Check Seven Spell check’s ambivalence to our com- mon typos must bear some of the blame for our proofreading problems. I allud- ed to some in the first paragraph, but put these on your list of “control-find” words to find and fix—trail, statue, untied, prob- ably, reasonably, pubic, form—and re- place them with the intended trial, statute, united, probable, reasonable, public, and from.8
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