Memorial写作|《简明法律英语写作(第三版)》第二章译介
作 者:Bryan A. Garner*译 者:王硕、陈心悦、许新冉**
关于引言及第一章,参见:《简明法律英语写作(第三版)》第一章译介
第二章:整合文句
原则五
原则五:省略冗词。
(§5. Exclude unnecessary words.)
战胜冗长的好处有三:读者读得更快;你的思路更清晰;文章本身更有力。你和你的读者都将从中受益。
下面这个句子出自一个联邦机构,共35词;虽不算太长却仍显啰嗦:
- It is not necessary that an investment adviser’s compensation be paid directly by the person receiving investment advisory services, but only that the investment adviser receive compensation from some source for his or her services.
它的长度可以缩短至1/3,且丝毫不影响意思的表达。相反,这样的修改还能让句子更加简短有力:
- Although the investment adviser must be paid, the source of the payment does not matter.
思考一下上述例子中的精简对于句子和文段有什么帮助。
再看一个稍长些的句子,共79个词,来自于法律评论文章:
- Since, under the Equal Employment Opportunity Commission Guidelines pertaining to sexual harassment, an employer is liable for hostile-environment sexual harassment only if it knew or should have known of the harassment and failed to take prompt and effective steps to end the harassment, it is possible for employers to be exonerated from liability for hostile-environment sexual harassment when sexual harassment has occurred by individuals within an organization, but the organization took prompt action to prevent further harassment.
- 鉴于根据《平等就业机会委员会准则》中有关性骚扰的规定,雇主只有在知道或应该知道存在性骚扰且未能采取及时有效的行动阻止性骚扰时对敌意环境性骚扰负责,当机构内的个人实行性骚扰而机构立即采取行动阻止进一步性骚扰时,雇主有可能被免除敌意环境性骚扰的责任。
- EEOC Guidelines allow courts to exonerate an employer from liability for hostile-environment sexual harassment if the employer acts promptly to prevent further harassment.
英语是一种很容易变得冗长的语言。人们可以轻松把一句15个单词就能说清的话写到20个词,甚至大部分人会写到30个词。而一个转文高手更是能用40个词来表达同个意思。事实上,几乎所有的写作者都会下意识将句子拉长。
与之相反,精简句子却很难,处理自己的文章则更是如此。不论初稿写得是否顺畅,你的文章中每个句子都约有1/4多余的内容。但是,如果你能注意甚至预料到这一啰嗦拖沓的现象,你就不会执著于自己的初稿。这样,你用来战胜拖沓的批判性思维也会受到锻炼。你也会留出足够的时间来修改文章。
当然,精简的同时,也必须让其保持自然、符合语言习惯,绝不能删除那些省略后会引起歧义的词语。例如,不要删除通常情况下会出现的冠词(a, an, the),如:School is not liable for teacher’s unforeseeable criminal acts. 应在school和teacher’s前分别加上冠词a。不要在会引起歧义时删除that,如:He denied the assertion made any difference. 应在denied后加that。that做连词时,通常只有在say和think两个动词后可以删除。如果把say改成state,就需要that来引导名词性从句:He stated that the injunction would last only 30 days.
所以,不断精简文句的同时,也要保持文章的合理性。
练习
基础练习
- The general consensus of opinion on the court was that Business Corporation Law does not address the ability of a New York corporation to indemnify individuals who are not its employees.
- Even assuming that the fog caused the accident in which Cetera was involved, Pardone had no duty to prevent that injury because it was idiosyncratic, and Pardone could not have been expected to foresee such injury.
- At no time prior to the time of the initial public offering did the underwriters or any officers, directors, employees, or others have knowledge of any facts that would suggest that “Palm Harbor” could not be completed in a timely fashion and in accordance with specifications.
- Beale has wholly failed to allege facts that, if true, would establish that competition among the nation’s law schools would be reduced or that the public has been in any way injured, and this failure to allege facts that would establish an injury to competition warrants the dismissal of her restraint-of-trade claim.
- The court examined a number of cases and stated that there appeared to be only a limited number of instances in which there would exist a duty to disclose the illegal conduct of persons who, through political campaigns, seek to be elected to a public office.
中级练习
- The County sent an inspector who made observations as to the condition of the sidewalk and concluded that it was uneven.
- Although a review of the caselaw reflects that there are no decisions in the Eleventh Circuit concerning this issue, the great weight of federal authority favors the exclusion of third parties from a Rule 35 independent medical examination.
- There is caselaw for the proposition that use restrictions are not always strictly enforced when a lease is assigned by a tenant in bankruptcy and the property in question is not part of a shopping center.
- The court appeared to premise much of its opinion upon the argument that consumers stand at a significant disadvantage in product-liability actions based on ordinary negligence principles. Consequently, strict product liability was intended to relieve the plaintiff of the burden of having to prove actual negligence.
- With respect to matters not covered by the provisions of the Uniform Rules for the New York Court of Claims (the Uniform Rules), the Court of Claims adheres to the rules set forth in the Civil Practice Law and Rules (the CPLR). Ct. Cl. R. § 206.1(c). Because the Uniform Rules do not discuss disclosure of expert witnesses, it follows that the Court of Claims’ rules on the subject are governed by the CPLR.
- There are cases that are factually similar to the present case, but that are controlled by older statutes— i.e., the pre-1965 legislative scheme. There are no cases that have been explicitly decided under § 1511 since the 1965 amendment, so it is unclear what effect the amendment has on cases that are factually similar to the present case.
- Arbitration as a means of settling disputes was at first viewed by the courts with much disfavor, but today is being used increasingly as a substitute for litigation for the adjudication of disputes arising out of contracts.
- The court rejected the defendant’s argument that the headlines were not the product of sufficient skill or effort, finding that because many of the headlines consisted of eight or so words that imparted information, copying of the headlines might at least in some instances constitute copyright infringement.
- To say that one who has contracted to serve for a number of years at a low salary or at distasteful work and seeks to better his or her condition by a contract with another party should be penalized in every case by inability to enforce this second contract seems harsh, and under these or other extenuating circumstances, the courts have often deemed damages to be sufficient recompense to the injured employer without also invalidating the second contract.
高级练习
In addition to the two cases cited just above, both (as mentioned) dealing with the California State Bar Rules of Conduct, Rule 3-310 of the California State Bar Rules of Professional Conduct describes circumstances in which an attorney is embroiled in the representation of adverse interests. Rule 3-310 is concerned primarily with situations in which the attorney’s duty of loyalty and duty of confidentiality to clients are called into question. Therefore, to date, there are no Rule 3-310 cases disqualifying a district attorney as a result of a prosecution of an individual whom the district attorney used or is used as a witness in another prosecution. Most cases that involve district- attorney conflicts under Rule 3-310 consist of a former attorney-client relationship between an accused and a district attorney. In such cases, the rule serves to protect an accused from a prosecution in which a district attorney unfairly benefits from information gained during the course of his or her representation of the accused. Other Rule 3-310 cases involve overzealous prosecutions in cases where a district attorney is for one reason or another personally or emotionally interested in the prosecution of the accused.
或者找一句至少20词的啰嗦的句子,将其缩短至原来的一半而不改变句意。如果你在写作班或者写作小组里,请为每个同学准备一份修改前与修改后的稿子。
原则五的小结
- 再擅长写作的人,初稿也会拖沓啰嗦;
- 检查文章时,尝试删除所有多余的词(删除that前请三思)。把这个过程当成游戏;
- 精简句子时,让其保持自然并符合语言习惯;
- 精简句子时,记录删掉的词汇数;
- 不要删除省略后会引起歧义的单词。
原则六
原则六:让句子的平均长度保持在20词左右。
(§6. Keep your average sentence length to about 20 words.)
句子长度是决定你所写文章可读性的要素之一。
但是(But),你要做的不仅有缩短平均句长,还应让句子长短错落有致。这就是说,文章里应该有一些35个词的长句子和3个词的短句子。要注意力图控制平均句长在20词左右。
然而,在法律写作中,很多因素都会导致冗长句子的出现。一是,律师们总是过分强调细枝末节,希望把一大堆互不关联的事情放在一起,并详细展开(参见原则二十三)。二是,作者们不愿意用单句将要点逐个说明,似乎必须要把一个完整的观点和与之相关的所有限制都放在整个长句子里。三是要避免在句首使用But和And,这条规范限制了很多作者,但实则毫无意义。第四个因素则源于一种没有根据的担心,即认为行文简洁就会使文章缺乏深度。
许多法律写作者都深受这些观念的影响,因此要想练就清晰易读的文风就必须下苦功夫。
20词的句长是否现实呢?许多优秀作者在撰写很深奥的题目时都可以做到。来看看W.W. Buckland教授是如何用平均句长在13词左右的文段来概括哲学家约翰·奥斯丁(John Austin)的思想:
- Austin’s propositions come to this.[5] There is in every community (but he does not really look beyond our community) a person or body that can enact what it will and is under no superior in this matter.[32] That person or body he calls the Sovereign.[8] The general rules that the Sovereign lays down are the law.[11] This, at first sight, looks like circular reasoning.[8] Law is law since it is made by the Sovereign.[10] The Sovereign is Sovereign because he makes the law.[9] But this is not circular reasoning; it is not reasoning at all.[12] It is definition.[3] Sovereign and law have much the same relation as center and circumference.[12] Neither term means anything without the other.[7] In general what Austin says is true for us today, though some hold that it might be better to substitute “enforced” for “commanded.”[23] Austin is diffuse and repetitive and there is here and there, or seems to be, a certain, not very important, confusion of thought. [23] But with the limitation that it is not universally true, there is not much to quarrel with in Austin’s doctrine.[20]
- 奥斯丁的命题归结为以下几点。在每个社区中(但他并没有真正超越我们的社区范围),都存在一个可以颁布其意志并且在此事上没有上级的个人或团体。他将该个人或团体称为主权者。主权者制定的总规则就是法律。乍一看,这似乎是循环论证。法律之所以是法律,是因为它是由主权者制定的。主权者之所以是主权者,是因为他制定了法律。但这不是循环论证;它根本不是推理。它是定义。主权者和法律之间的关系与中心和圆周之间的关系大致相同。如果没有另一个术语,这两个术语都没有意义。总的来说,奥斯丁所说的话对我们今天来说是正确的,尽管有些人认为用“强制执行”代替“命令”可能会更好。奥斯丁的论述冗长且重复,并且到处都存在,或者似乎存在某种不太重要的思想混乱。但是,由于它并非普遍适用,因此奥斯汀的学说并没有太多值得争论的地方。
但是,这样的风格能否适用于法律文书呢?答案是肯定的。下文就是一个典例,摘自纽约市E. Joshua Rosenkranz所写的一份联邦上诉摘要。句子的平均长度刚好在15词以下:
- Google executives agreed that they “[m]ust take a license from Sun,” because “[S]un … own[s] the brand and the IP.”[20] But Google rejected the key terms that every other licensee accepted.[15] Then, it just copied Sun’s work.[6] Google admits that it literally copied into Android thousands of lines of original Sun/Oracle source code.[16] The code Google copied embodied the elements and the detailed, complex structure and design of 37 packages of code, essentially the chapter and subchapter headings and the topic sentences from those packages — all copied verbatim.[35] Google then paraphrased the rest.[5]
- The copying enabled Google to rush Android to market.[9] It also made Android instantly familiar to the programming community Sun fostered. [15] So millions of programmers who came of age on Sun’s Java source code, nomenclature, and organization eagerly wrote apps for Android.[21] That helped make Android a phenomenal commercial success.[8]
- Had Google done exactly the same thing with a novel or a symphony, there would be no doubt that it copied protectable expression — both as to the large volume of work copied and the work’s organization.[36] Copyright protects a short poem or even a Chinese menu or jingle.[12] But the copied works here were vastly more original, creative, and labor- intensive.[12] Nevertheless, the district court stripped them of all copyright protection.[10] The court saw this software as just different.[8] It believed that each line of source code Google copied is an unprotectable “method of operation,” because it is just a command to carry out a pre-assigned function.[28]
将短句与良好的措辞和节奏相结合,你的写作就会获得力量:更富有可读性、阅读速度和吸引力。保持句子的简短有助于理清思路、简化标点符号的使用、提高句法的清晰度。这样,你的写作变得「更有力」,因为你创造了更多的强调位置——句子的结尾(参见原则11)。
此外,有一点不容忽视:上面引用的两段文章都有以连词开头的句子。这些连词虽然简单但十分有用,它们能把句子紧密地结合在一起:But(其中最有用的),And,So,Yet,Or和Nor。它们比However,Additionally,Consequently或Accordingly,Notwithstanding that fact,In the alternative等律师喜欢的连接词更有效。连词使用的要点是效率,而非形式。美国宪法中虽然中有八个句子以But开头,两个句子以And开头,但是仍然毫无疑问地属于「正式文体」。
试着做两个实验。第一,读好的文章时,注意文中有多少以连词开始的句子;读单调乏味的文章时,看看连接词有多少个音节。第二,当你读新闻杂志或报纸读到一流的非小说类文章时,尝试用However(后接逗号)替代But(后面没有逗号),然后想一想这种改变会如何打破文章原有的节奏。这类实验能让写作者保持合理的句子平均长度。
为什么老师曾经教你不要用连词开启一个句子?大概是因为你小时候过于频繁地把And放在句首。这种规范始从始至终都是无稽之谈。但是(But),站在你小学老师的角度,这是一个善意的谎言,只是为了让你改掉孩子气的写作习惯。但你已经是成年人了,你知道什么时候该在句首使用连词,可以开始养成更成熟的写作习惯。
练习
基础练习
- Appellee Allied Indemnity of New York respectfully suggests that oral argument would be of little benefit because the dispositive issue has been recently authoritatively decided by the Texas Supreme Court in National Union Fire Insurance Co. v. CBI Industries, Inc., 907 S.W.2d 517 (Tex. 1995), and by this Court in Constitution State Insurance Co. v. Iso-Tex, Inc., 61 F.3d 405 (5th Cir. 1995), because the facts and legal arguments are adequately presented in the briefs and record, and because the decisional process would not be significantly aided by oral argument. [91词]
- Although no Kansas cases were found that explicitly hold that Kansas requires a corporation to have a valid business purpose in order to engage in certain specified corporate transactions, either for mergers or consolidations, or for a sale of assets followed by a dissolution and liquidation, in a 2013 Supreme Court of Kansas case involving a cash-out merger where the dissenters claimed the defendant’s board of directors breached its fiduciary duties to the dissenters, the court cited as one of the trial court’s pertinent conclusions of law that it is not necessary for a corporation to show a valid corporate purpose for eliminating stockholders. [105词]
- The court of appeals noted that the Environmental Protection Agency (EPA) had already issued the applicant a National Pollution Elimination System permit for the actual discharge of wastewater, which would occur from the outfall pipe, and that the issuance and conditions of such permits were generally exempt under the Clean Water Act from compliance with the Environmental Impact Statement (EIS) requirement, and accordingly the court concluded that the Corps had properly excluded the environmental implications of the discharges from the outfall pipe from its analysis and instead considered only the construction and maintenance of the pipeline itself in determining that the issuance of the permit did not constitute a major federal action. [112词]
中级练习
- At best, the lack of precise rules as to the treatment of routine corporate transactions forces investors and others who seek to understand accounting statements in all of their complex fullness to wade through pages of qualifying footnotes, the effect of which is often to express serious doubts about the meaningfulness and accuracy of the figures to which the accountants are attesting. Equally bad, while the footnotes, carefully read and digested, may enable the sophisticated analyst to arrive at a reasonably accurate understanding of the underlying economic reality, the comparison of figures published by one firm with those of any other is bound to result in seriously misleading distortions. Indeed, the figures for any given company may not be comparable from one year to the next, for although auditing standards require that the principles used by a firm must be “consistently applied” from year to year, the “presumption” of consistency may be overcome where the enterprise justifies the use of an alternative acceptable accounting principle on the basis that it is preferable. [句子平均长度:57词]
- It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. The invalidation of financial aid to parochial schools by government grants for a salary subsidy for teachers is but one example of the extent to which courts have gone in this regard, notwithstanding that such aid programs were legislatively determined to be in the public interest and the service of sound educational policy by states and by Congress. [句子平均长度:51词]
- Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood-and-canvas lawn chair that was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered that the plaintiff, Ruth Garratt, was about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair, whereupon, due to the defendant’s small size and lack of dexterity, he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. [句子平均长度:126词]
- Since it is undisputed that the sugar was stolen, and that it was purchased by Johnson, the question at issue for jury determination is the state of Johnson’s mind when he purchased it. While the jury is unauthorized to convict unless it finds that Johnson himself had guilty knowledge, such knowledge may be proved by circumstances here to warrant the conclusion that Johnson, when he purchased the sugar, knew it to have been stolen and did not in fact honestly believe that the sellers were sugar dealers or were properly authorized by the Ralston Mill to sell sugar for it. In arriving at this conclusion, the jury might have considered the time and arrangements for the purchases, statements of Johnson to Gordon showing that he knew that he was taking a risk, the absence of any invoice or regular billing procedure, the contradictory statements of Johnson after his arrest, and the unlikelihood of the sellers’ having come into possession of such large quantities of sugar to be sold below wholesale price in a legal manner. [句子平均长度:58词]
高级练习
原则六的小结
- 平时阅读,特别是读到好作品时,注意句子的长度;
- 让句子的长短错落有致:长句短句交替出现。尽力让句子的平均长度保持在20词以内;
- 不要一次性把所有内容说完,不要把某个话题的所有条件塞在一个句子里;
- 在句首合理使用But,Yet和And;
- 去掉句子中不必要的细节,欣赏改后句子的简短有力之美。
原则七
原则七:把主谓宾语连贯地置于句子前部。
(§7. Keep the subject, the verb, and the object together—toward the beginning of the sentence.)
在为确保句子长度适中而修改文章时,可以考虑一下措辞。以及词语的选取和位置是否恰当?主语和谓语(一般地,谓语由一个动词和宾语构成)是句子的两大要素,这一点似乎是显而易见的:
- The partnership may buy a bankrupt partner’s interest.
- 合伙企业可以购买破产合伙人的股权。
为什么要把主语和动词尽量靠前安排?因为读者往往通过抓取主要动作来理解句子。所以,如果一个句子有太多的修饰语和限制条件,就把它们放在主语和谓语之后吧。你也可以将这些修饰内容单独摘录出来,逐项列表,以方便读者理解。对于下面这样的句子,你肯定忍不住想上手调整一下结构:
- In the event that the Indemnitor shall undertake, conduct, or control the defense or settlement of any Claim and it is later determined by a court that such Claim was not a Claim for which the Indemnitor is required to indemnify the Indemnitee under this Article VI, the Indemnitee shall, with reasonable promptness, reimburse the Indemnitor for all its costs and expenses with respect to such settlement or defense, including reasonable attorney fees and disbursements.
- 如果赔偿人承担、实施或操控任何索赔的辩护或调解,而法院后来裁定,根据本法第六条,该索赔不属于赔偿人必须补偿的索赔,则被赔偿人应合理及时地向赔偿人补偿与该调节或辩护有关的所有成本和费用,包括律师费和合理支出。
- The Indemnitee must promptly reimburse the Indemnitor for all its costs and expenses of settlement and defense, including reasonable attorney fees and disbursements, if:
(a) the Indemnitor undertakes, conducts, or controls the defense or settlement of any claim; and
(b) a court later determines that the claim was not one for which the Indemnitor must indemnify the Indemnitee under this Article VI. - 如果具有下列情形,被赔偿人必须及时向赔偿人支付诉讼费和调解和辩护的所有费用,包括合理的律师费和垫付款:
(一)赔偿人承担、实施或操控任何索赔的辩护或调解;且
(二)法院裁定,根据本法第六条,该索赔不属于赔偿人必须补偿的索赔。
但也别狂热地把主语置于所有句子的句首。印刷新闻就是个恰当的例子,它有约一半的句子以状语修饰语、从属连词(虽然、因为、如果等)或介词短语开头。句法多样有趣,而且主语往往只是靠近句首,没有笨拙的主谓之分。
练习
基础练习
- Ms. Lenderfield, during the course of her struggle to provide for her children as a single parent, accrued considerable debt to her family and others.
- Chesapeake’s assertion that it is not a proper defendant in this case and, therefore, that relief cannot be granted is incorrect.
- The court, in finding that Officer McGee was acting more as a school employee than as a police officer in searching Robinson, ruled that an official’s primary role is not law enforcement.
中级练习
- Plaintiff’s testimony that he had never had a back injury and had never been treated by a doctor for a back ailment before this workplace accident is suspect.
- The Trustee, at any time, by an instrument in writing executed by the Trustee, with the concurrence of the City Council evidenced by a resolution, may accept the resignation of or remove any cotrustee or separate trustee appointed under this section.
- In Barber v. SMH (US), Inc., the Michigan Court of Appeals held that the plaintiff’s reliance on a statement made by the defendant that “as long as he was profitable and doing the job for the defendant, he would be defendant’s exclusive representative” as establishing an oral contract for just- cause employment was misplaced.
- Taxes imposed by any governmental authority, such as sales, use, excise, gross- receipts, or other taxes relating to the equipment, except for the personal- property tax, for which Biltex, Inc. is assessed and liable by applicable law, must be reimbursed by Calburn, Inc.
高级练习
原则七的小结
- 学习如何有效措辞;
- 不要每句话都以语法主语开头,事实上甚至对大多数句子都别这么干。但是,你得迅速把主语点出来;
- 当你想把修饰语放在语法主语后面时,比如,The court, in ruling the evidence admissible, stated...试试看把修饰语提到主语之前:In ruling the evidence admissible, the court...;
- 避免用长修饰语开头,要知道,专业的法律写作中,约有一半的句子以短修饰语开头;
- 不要把动词和直接宾语分开。只有为达到某种特殊的戏剧效果时,才使用间隔词。
原则八
原则八:使用平行结构,表达并列内容:别把不同的语法形式放在一起。
(§ 8. Use parallel phrasing for parallel ideas: don’t pair unlike grammatical forms.)
你肯定已经注意到了每节原则末尾的小结。它们能加强你的阅读效果,而且其本身就值得学习。列举之所以具有强大力量,是因为它们会在人们的脑海中挥之不去。但要具备这种力量,列举必须在语法上平行,即它们必须表达方式类似,或者(更具体地说)在句法上相匹配。在列举中,实现平行结构的方法是把每一项都变成一个完整的句子,并使用祈使句 (Do this. Don’t do that.) 有了完整的句子,你可以在保证平行结构的同时使用多种多样的表达方式:只要保证句子的完整、每一项的主要动词都是谓语,你就可以用副词、介词或形容词作为句子的开头。
句子不够完整的列举就比较棘手。为了保证语法上的并列结构,你能使用的表达方式更少些。一个基本的要求是将相关的词组或从句放在一起,以符合读者的阅读习惯。这种并列结构能统一你的思想和语言。最简单地说,平行结构是一种整合列举的好方法:
形容词的列举: The arguments were long, disorganized, and unpersuasive. (论据冗长、杂乱无章、缺乏说服力。)
副词的列举: The jury weighed the evidence carefully, skillfully, and wisely. (陪审团仔细、巧妙、明智地权衡了证据。)
名词和名词短语的列举: The facilities are available to directors, officers, and corporate counsel. (这些设施可供董事、高级职员和公司法律顾问使用。)
谓语(动词及其宾语,以及后面的任何内容): The perpetrator drove to Minnesota, changed cars, and dropped the box on the side of the road outside St. Cloud.(作案者开车来到明尼苏达州,换了一辆车,然后把箱子扔在了圣克劳德郊外的路边。)
非并列短语通常按名词-名词-动词的顺序组成,如:“She is a law professor, environmental activist, and writes mystery novels.(她是一位法学教授、环保活动家,也写悬疑小说。)”为了实现平行结构,最后一个短语应该是“writer of mystery novels(写悬疑小说的作家)”,或者更好的是,改成“mystery novelist(悬疑小说作家)”。
不过,在法律写作中,一个常见的错误是在句子中穿插放在括号里的数字,而不考虑列举项在语法上是否匹配——比如这一句:
- To prove a claim of false advertising under the Lanham Act, Omega must show that Binnergy (1) made a false or misleading statement, (2) that actually deceived or was likely to deceive a substantial segment of the advertisement’s audience, (3) on a subject material to the decision to purchase goods or services, (4) about goods or services offered in interstate commerce, (5) that resulted in actual or probable injury to Omega.
- 要证明《兰哈姆法》规定的虚假广告索赔,Omega必须证明 Binnergy 公司(1)作出了虚假或误导性陈述,(2)实际欺骗或可能欺骗了很大一部分广告受众,(3)涉及对购买商品或服务的决定至关重要的事项,(4)涉及在州际商业中提供的商品或服务,(5)对Omega造成了实际损害或可能的损害。
- To prove a claim of false advertising under the Lanham Act, Omega must show that Binnergy made a statement that (1) was false or misleading, (2) deceived or was likely to deceive a substantial segment of the advertisement’s audience, (3) related to a subject material to the decision to purchase goods or services, (4) related to goods or services offered in interstate commerce, and (5) resulted in actual or probable injury to Omega.
- 要证明《兰哈姆法》下的虚假广告索赔,Omega必须证明Binnergy公司作出了这样的陈述:(1)虚假或具有误导性;(2)欺骗或可能欺骗大部分广告受众;(3)与决定购买商品或服务的重要事项有关;(4)与州际商业中提供的商品或服务有关;以及(5)对Omega造成了实际或可能的损害。
语法学家惯称的关联词也会产生并列结构问题。最常见的关联词是:
both …and (……和……)
either … or (……或者……)
neither … nor (不是……也不是)
not only … but (also)(不但……而且)
如果用关联词将观点组合在一起,就得对观点进行措辞,使其在语法上相对应。这样可以显示出思维的有序性。
比如,如果一个动词跟在“not only”之后,那么另一个动词就应该跟在“but also”之后。但下面这个句子却犯了用法错误。
- Domestic violence is a force that not only causes suffering to the victim of an attack, but also detrimental effects on any children in the home.
- Domestic violence causes suffering not only to the victim of an attack but also to any children in the home. or
- Domestic violence not only causes the victim to suffer but also harms any children in the home. or
- Domestic violence causes not only the victim to suffer but also any children in the home.
下表会展示几个典型例子,都是对不平行措辞的纠正。每个例子都阐明一组不同的关联连词。
Examples with Correlative Conjunctions
Unparallel | Parallel |
---|---|
The Braggartosio trademark is neither distinctive nor has it acquired secondary meaning. (Adective-predicate with inverted verb.) |
The Braggartosio trademark neither is distinctive nor has acquired secondary meaning. (Predicate-predicate.) |
Michigan cases, both in state and federal court, have refined the Gledhill formulation. (Prepositional phrase-noun phrase.) |
Michigan cases, in both state and federal court, have refined the Gledhill formulation. (Moving the preposition solves the problem.) |
This contradictory finding shows that either the jury did not understand the court's instructions or compromised on the issue of liability. (Independent clause-predicate.) |
This contradictory finding shows that the jury either did not understand the court's instructions or compromised on the issue of liability. (Predicate-predicate.) |
A parent company that guarantees a loan to a subsidiary is telling the creditor to look not only to the subsidiary but also to look to the parent for satisfaction of that loan. (Prepositional phrase-infimitive phrase.) |
A parent company that guarantees a loan to a subsidiary is telling the creditor to look not only to the subsidiary but also to the parent for satisfaction of that loan. (Prepositional phrase- prepositional phrase.) |
练习
基础练习
- The court relied heavily on the district court’s statement that the would-be intervenors retained the right to appear through counsel, to participate in the fairness hearing, to conduct discovery, and standing to appeal the court’s approval or disapproval of the class—action settlement.
- The Tenant will probably not be able to have the lease declared void and unenforceable for vagueness because it contains all the essential elements of a lease: a description of the premises, the amount of rent to be paid, the term of the lease, and identifies the parties.
- The Younger doctrine also applies to a state civil proceeding that is (1) ongoing, (2) implicates important state interests, and (3) affords an adequate opportunity to raise federal claims.
中级练习
2.1 No Default or Violation of the Law. The execution and delivery of this Loan Agreement, or the bond indenture, and any other transaction documents by the Authority, will not result in a breach of the terms of, or constitute a default under, (A) any indenture, mortgage, deed of trust, lease, or other instrument to which the Authority is a party or by which it or any of its property is bound or its bylaws or any of the constitutional or statutory rules or regulations applicable to the Authority or its property.
高级练习
- The essential elements of a fraud claim under New York law are that: (a) the defendant made a misrepresentation (b) of a material fact (c) that was intended to induce reliance by the plaintiff (d) which was in fact relied upon by the plaintiff (e) to the plaintiff’s detriment.
- Where there are already allegations of defects in design, manufacturing, and warnings, a claim that the manufacturer should have recalled its 2022 products is redundant, prejudicial, and directed to the wrong institutional forum.
- Under Georgia law, the elements necessary for the application of equitable estoppel are (1) a false representation or concealment of facts, (2) it must be within the knowledge of the party making the one or concealing the other, (3) the person affected thereby must be ignorant of the truth, (4) the person seeking to influence the conduct of the other must act intentionally for that purpose, and (5) persons complaining must have been induced to act by reason of such conduct of the other.
原则八的小结
- 理解列表的认知价值:强化信息,加强记忆;
- 当列举和语法结构涉及到「either..or」、「neither...nor」等关联词时,确保相应元素能够匹配:名词-名词-名词,动词-动词-动词,以此类推;
- 记住最常见的几组关联连词。只要遇到它们,就检查一下是否存在平行结构;
- 检查项目符号列表和列举内容是否平行。
原则九
原则九:使用精确有力的动词,减少be动词——尤其是在被动语态中。
(§ 9. Use strong, precise verbs. Minimize is, are, was, and were— especially when they are part of a passive- voice construction.)
尽管存在例外,如「I think, therefore I am(我思故我在)」,「To be or not to Be(生存还是毁灭)」 ,「It depends on what the meaning of is is(这取决于is在此的含义)」,be动词通常缺乏力度。所以,如果它们频繁出现,文章就会显得沉闷。但很多法律写作者却常常犯此忌讳,就像下面这段文字一样:
- If there is information to which the company has reasonable access, the designated witness is required to review it so that the witness is prepared on all matters of questioning.
- Affecting vitally the problem of the burden of proof is the doctrine of presumptions. A presumption occurs in legal terminology when the fact-trier, whether a court or a jury, is required from the proof of one fact to assume some other fact not directly testified to. A well-known example is the presumption that a person is dead after seven years if he or she has been shown to have been absent for seven years without being heard from.
- If the company has reasonable access to information, the designated witness must review it to prepare for all matters of questioning.
- The doctrine of presumptions vitally affects the burden-of-proof issue. A presumption occurs in legal terminology when the fact-trier, whether a court or a jury, must deduce from one fact yet another that no one has testified about directly. For example, the law presumes that a person has died if that person has been absent for seven years without being heard from.
顺带一提,许多作家错误地认为,be动词一定标志着被动语态。但事实上,它只是被动语态结构的一半。不过即便be动词未必会将句子变成被动语态,也一定会削弱文章的语气。因此,无论采用哪种结构,你都应该认真对待be动词。
在被动语态结构中时,be动词尤为不可靠。不妨这样想:在主动语态里,你做某事;在被动语态里,某事被你做了。句子的主语也是如此。在主动语态结构里,主语做某事(法院驳回上诉)。在被动语态结构中,某事被主语做(法院驳回了上诉)。
主动语态较被动语态主要有四个优势:
- 它使句子更短;
- 它能更好地反映时间顺序(主动语态:actor → action → recipient of action),而被动语态恰恰相反(被动语态:recipient of action → action → actor);
- 它更便于阅读。因为其句法符合英语使用者的阅读习惯,即分句主语将做出动词所指向的动作;
- 它使文章更加生动活泼(John wrote to the company as opposed to The company was written to by John)。
正确识别被动语态是个挑战,只有不到半数的律师能一直做到。但是,如果你能牢记这个万无一失的方法,事情就没那么难了:如果你发现一个be动词(如is、are、was、were)后面跟了一个过去式的动词,你就知道它是一个被动语态结构。你可以搜寻类似这样的短语:
is dismissed
are docketed
was vacated
were reversed
be sanctioned
am rewarded
being affirmed......
此外,还可以使用「got」实现被动语态,一般只用于非正式场合: The statute got repealed.
下列句子都是都是被动语态:
- In 2020, only ten executives were covered by Article 12.
- Prospective investors are urged to consult their tax advisers.
- The 2024 Plan is intended to facilitate key employees in earning a greater degree of ownership interest in the Company.
- In 2020, Article 12 covered only ten executives.
- We urge prospective investors to consult their own tax advisers.
- With our 2024 Plan, we intend to help key employees earn a greater ownership interest in the Company.
只要稍加努力,你就会发现自己标记的段落如下图所示。
一旦学会了这种修改文章的方法,你就掌握了被动语态。在学习的过程中,你会注意到一些细节。
其中一处就在于,在某些被动语态结构中,be动词隐藏起来了,但你可以在上下文中读到它的存在。比如:
从语法上来说,该句的it后面隐去了being,因此句子中的相关部分是被动语态(不是 I heard,而是 it [being] argued)。要使这个句子变成主动语态,可以这么写:
在「截断被动语态」中,行为主体被完全省略。这会使句子变得含糊不清,甚至有些难以理解:
截断被动语态常为诉讼律师所青睐,他们会告诉法庭自己的请求应当「被批准」,而对方的请求应当「被驳回」。虽然同意或拒绝请求的主语很明确是法院,但律师们通过省略主语的写作方式可以隐去他们正在试图说服的法院。如果他们明确将「本法院」作为句子的主体,那就是在宣称,只有「本法院」有权审理他们的请求。
总而言之,主动语态一般可以节省字数,直接说明谁做了什么,并使文章更美观、更有趣。
练习
基础练习
- Jackson is in agreement with Smith.
- The professional fees in this project are entirely dependent upon the planning techniques that the client is in favor of implementing.
- The judge is of the opinion that it is within sound judicial discretion to determine whether, once the claim is asserted, the crime-fraud exception is applicable.
- Where there is no express agreement, it is ordinarily taken that the authority was to last for what was a reasonable time in light of all the circumstances.
- Testimony was heard from the plaintiff and from three witnesses on behalf of the defendant.
- This is a purely legal question to be determined by the court.
- McCormick's motion for partial summary judgment on the duty to defend should be denied.
- Plaintiff's opposition violates Rule 313 of the California Rules of Court and may be disregarded by the court.
中级练习
- There was no light- duty work that was available at the company. The company's actions were hardly discriminatory when there was no showing that the company was practicing any type of discriminatory preference.
- Several members were in attendance, and those present were in agreement that the board's action was violative of the bylaws.
- This evidence is indicative that the company was desirous of creating a monopoly with the operating system.
- Since there is a limited number of persons with the requisite skills, it is increasingly difficult for the company to hire personnel who are qualified.
- The intention of the donor is established at the moment the funds are dedicated to a charitable cause. This dedication imposes a charitable trust for the donor's objective as effectively as if the assets had been accepted subject to an express limitation providing that the donation was to be held in trust by a trustee solely for the purpose for which it was given. It is imperative that the objectives of individuals who give to charity be strictly adhered to.
- There are situations in which a motion for rehearing should be granted. Before the enactment of CPLR § 5517, it was held that when such a motion was granted, any appeals from the prior order would be dismissed. The CPLR was amended to "alter caselaw holding that an appeal from an order had to be dismissed upon entry in the court below of a subsequent order." [Citation.] Thus today, § 5517(a) states that after a notice of appeal from an order has been served, the original appeal will not be affected if a motion for rehearing is entertained. The appeal will be neither mooted nor canceled by the grant or denial of a motion for rehearing.
- Jurisdiction was conferred on the district court by 28 U.S.C. § 1331. The complaint was dismissed with prejudice on March 31, 2022, and judgment was entered in favor of the Cauthorns. A timely notice of appeal was filed by Perkins on April 7, 2022. Jurisdiction is conferred on this court by 28 U.S.C. § 1291.
- During the taxable years at issue, the replacement fuel assemblies had not begun to be used by the company for their specifically assigned function, namely, to generate electrical power through nuclear fission. Nor were the assemblies placed in a state of readiness for their intended use during the years in which they were acquired. That did not occur until the spring of 2010, when, after more than a year of careful planning, the reactor was shut down, various maintenance tasks were performed, spent fuel assemblies were removed, the reactor was reconfigured using the new fuel assemblies in conjunction with partially spent assemblies that were not replaced, and low power testing was performed to ensure that the reconfigured reactor core performed safely in accordance with specifications. Only after those procedures had been successfully completed did the replacement fuel assemblies generate salable electric power and, hence, income to taxpayers. Only at that point could the replacement fuel assemblies be considered to have been placed in service.
高级练习
原则九的小结
- 高度重视动词;
- 认识到过度使用be动词是一个常见的陷阱,它会使你的文章篇幅冗长、表意不清;
- 突出标记be动词,并在修改时将其删除;
- 了解什么是被动语态:一个be动词后面跟上一个动词的过去式;
- 注意隐去了be动词的「戒断式被动语态」;
- 明白使用被动语态是一种策略。当文章中需要被动语态时,别把它省去,比如当行为发出者未知或不重要时;
- 记住主动语态通常的一些好处:文字简洁,文章生动,表意清楚,逻辑关系更加顺畅;
- 删除被动动词时多考虑,如果将其删除更合适,就把句子重新写。
原则十
原则十:避免多重否定。
(§10. Avoid multiple negatives.)
在不改变文意的情况下,请你尽量将否定陈述改为肯定陈述。你会为读者节省掉多余的脑力劳动。
一处否定读起来不会很费力:No more than one officer may be in the polling place at a given time.
但肯定形式更为简洁,且同样有强调作用:Only one officer may be in the polling place at a given time.
不过,当一句话中有多个不必要的否定时,句意就会变得模糊:A member who has no fewer than 25 years of credited service but has not yet attained the age of 60 years and is not eligible for retirement may not voluntarily retire early without first filing a written application with the board.
将no fewer than改成at least;将has not yet attained改成is under;将may not … without改成完全不同的结构,即must。然后再做一些其他的编辑,使句子变得更清晰:Even if you’re a member who is not otherwise eligible for retirement, you may voluntarily retire if you are under the age of 60 and have at least 25 years of credited service. To do so, you must file a written application with the board.
当然,这种修订技巧并不总是有效。如果你在陈述一种禁止行为,就需要使用否定表达(例如:Don’t litter! 请勿乱扔垃圾!)。一家航空公司在洗手间标志上绕开了这种直接性:「请将除卫生纸外的所有物品丢入垃圾箱。」这实际上在说:「请勿将除卫生纸外的物品丢入马桶。」你会怀疑有多少人会去琢磨原本绕弯的表述——它似乎是在避免使用「马桶」这个词。然而,在该场景下,不用否定表述是不合适的。
正如格劳乔·马克思(Groucho Marx)曾说过的:「我不能说我不同意你。」
练习
基础练习
- Notice will not be effective unless it is delivered in person or by certified mail, return receipt requested.
- In the absence of any proof to the contrary, the court should presume that the administrator's functions have not ceased.
- No termination will be approved unless the administrator reviews the application and finds that it is not lacking any requisite materials.
- It was not unreasonable to find that the jurors did likely believe Payton's mitigation evidence beyond their reach. The jury was not left without any judicial direction.
中级练习
- Notwithstanding the due-diligence requirement, the granting of a motion to vacate a judgment of conviction will not be precluded where there is nothing in the record to indicate that the defendant's failure to acquire the evidence before or during trial was unreasonable.
- There is no issue of material fact that Renfro cannot establish that Aniseed, Inc. owed her a duty to prevent the injury she claims to have suffered.
- Bendola cannot be permitted to stand on nothing more than unsubstantiated and self-laudatory statements as a basis for denying summary judgment.
- No reason for refusing confirmation of the master's report not covered by the exceptions in the rule is disclosed by the record or urged by the defendants.
- A plan shall not be treated as not satisfying the requirements of this section solely because the spouse of the participant is not entitled to receive a survivor annuity (whether or not an election has been made), unless both the participant and the spouse have been married throughout the one-year period ending on the date of the participant's death.
高级练习
原则十的小结
- 多采用积极表述,而非消极表述;
- 如果在没采用否定表达的情况下,你仍可以陈述某个观点,那就这么做——只要陈述同样有力;
- 不要抛弃良好的感觉:有时,就像禁令一样,精心选择的否定陈述会更清晰。
原则十一
原则十一:用强调结束句子。
(§11. End sentences emphatically.)
有一个很多人不知道的原则:句子中最有力的部分——最具冲击感的位置——是末尾。
菜鸟作家写出的句子,结尾处通常平淡无奇。而写作老手知道,句子最后一个单词或短语,无论它是什么,都应具有特殊的冲击力。因此,如果你不想听起来像个无聊的公文,那就让你的结尾更有趣。对比下面三个例句:
- Melinda Jackson died three weeks later in Columbus, Ohio.
- Melinda Jackson died in Columbus, Ohio, three weeks later.
- Three weeks later, in Columbus, Melinda Jackson died.
第一个强调的是死亡地点——这可能是个糟糕的写法。第二个强调的是死亡时间——同样不太明智。第三个强调的是死亡本身。这才应该是作者的本意。
几乎任何句子,你都有选择强调什么的自由。你要有意识地做出这个选择。
你会一次次发现,句子中最有力的位置不是开头,而是结尾。正如以日期结尾不明智(除非日期本身很重要),以规则编号或引文结尾也通常是不明智的:Fenster International Racecourse, Inc. respectfully asks this Court to enter a summary judgment and, further, to find that there is no just reason to delay enforcement or appeal pursuant to Illinois Supreme Court Rule 304A.
稍微调整下语序就有很大的差异:Fenster International Racecourse, Inc. respectfully asks this Court to enter a summary judgment. Under Illinois Supreme Court Rule 304A, there is no just reason to delay enforcement or appeal.
当你一次次这么调整你的语句时,你的写作风格会更加明晰且聚焦。
练习
基础练习
- This Court dismissed the whistleblower claims against the Governor on August 27 in response to the Governor's Plea to the Jurisdiction.
- The right to stop the work is the single most important factor in deter mining whether a party is in charge of the work within the meaning of the Act.
- The Commission is not in a position to provide additional affidavits and other evidence to support its contention that Bulworth and Islington are an integrated enterprise at this time.
- The court may authorize a preappearance interview between the interpreter and the party or witness if it finds good cause.
- Silver Sidings contends that it had no control over the hazardous substance released to create the emergency, and that the Department of Natural Resources therefore has no jurisdiction over Silver Sidings under the Spill Bill (see § 260.510, RSMo 1994). In fact, Silver Sidings owned the property where the release occurred, owned the underground storage tanks from which the hazardous substance was released, permitted the hazardous substances to be stored in its tanks on its property, and had every right as a landowner to control how its land and tanks were used— all relevant factors under the Spill Bill. Thus, Silver Sidings is "a person having control over a hazardous substance involved in a hazardous-substance emergency" within the meaning of the Spill Bill.
中级练习
或
在已发表的法律著作中,找到一个句子结尾不强调的段落。重写该段落以使其更加美观。
高级练习
原则十一的小结
- 理解这一重要的写作要点:句子的强调部分不是开头,而是结尾;
- 训练自己在写作时做到这点:记住主要单词或短语,并尝试将其置于句末;
- 切忌将不重要的信息(例如日期、法定参考资料或客户名称)放在最重要的位置。在编辑时查找该缺陷,并进行修改。
未完待续,更多文章参见:
《简明法律英语写作(第三版)》第三章译介
关于第二部分(上),参见:《简洁法律英语写作(第三版)》第二部分(上)
关于第二部分(中),参见:《简洁法律英语写作(第三版)》第二部分(中)
关于第二部分(下),参见:《简洁法律英语写作(第三版)》第二部分(下)
关于英文标点,参见:《英文标点符号用法重述》
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