Except for passive voice, the use of nominalizations (a/k/a buried verbs) is perhaps the best sign of poor legal writing. Bryan Garner calls buried verbs “the sworn enemy of every serious writer,” and “an even more serious problem than passive voice” because invariably they “reflect muddy thinking.” Below, I discuss what nominalizations and buried verbs are, and how to eliminate them from your legal writing.
What are nominalizations/buried verbs?
Garner’s Modern American Usage defines nominalizations as “verbs that have been changed into nouns.” Garner’s The Winning Brief describes buried verbs in slightly more detail: “A ‘buried verb’ isn’t really a verb at all. It’s a noun created by a verb—the verb has been buried in the longer noun.”
Here are 30 nominalizations taken from Garner’s Legal Writing in Plain English, Garner on Language and Writing, and Garner’s Advanced Legal Writing & Editing seminar textbook, and the action verbs you should replace them with:
- in violation of — violate
- provide an illustration of — illustrate
- undertake the representation of — represent
- furnish an indemnification to — indemnify
- in mitigation of — mitigate
- conduct an examination of — examine
- make accommodation for — accommodate
- make provision for — provide for
- make a contribution — contribute
- provide a description of — describe
- submit an application — apply
- take into consideration — consider
- in preparation for — to prepare for
- have a discussion about — discuss
- conduct an examination of — examine
- provide responses — respond
- offer testimony — testify
- make inquiry — inquire
- provide assistance — assist
- place a limitation upon — limit
- provide protection to — protect
- reach a resolution — resolve
- reveal the identity of — identify
- bring an action against — sue
- makes mention of — states or says
- are in compliance with — comply
- draw a distinction — distinguish
- made allegations — alleged
- was in conformity with — conformed
- to effect settlement — settled
It’s clear that the bolded words above are preferred to the buried-verb phrases that precede them, yet frequently I see these buried-verb phrases in opposing briefs and some opinions, especially the favorite of many judges—in accordance with.
Why do we tend to use so many buried verbs?
Why do lawyers like buried verbs so much? It might have to do with Jeremy Bentham, who wrote about what he dubbed the “noun-preferring principle.” Bentham thought that you should always choose a noun over a verb.
But there’s no reason to think that Bentham carried any particular weight on this point: he was probably describing an age-old lawyerly bias. As a group, we’ve historically preferred writing about static things—over people’s actions. And that should tell you something about why so much legal writing is as dull as it is.
Why should we get rid of nominalizations?
History aside, Garner’s Modern American Usage and Garner on Language and Writing say that there are four reasons why you should uncover buried verbs.
- Buried verbs are longer and have more syllables than the action verbs they replace.
- Uncovering buried verbs eliminates prepositions in the process.
- Uncovering buried verbs eliminates “be-verbs” by replacing them with action verbs.
- Uncovering buried verbs humanizes your prose by saying who does what, which sometimes is obscured by buried verbs.
- I’ll add a fifth: eliminating nominalizations reduces your brief word-count.
Not sold? Try these real-world examples.
Of course, it’s common for non-lawyers to use nominalizations and related wordy phrases. For example, at my parking garage there’s a sign that says: “In accordance with the Minnesota Clean Air Act, smoking is prohibited.” Striking the nominalization in accordance with, and changing the passive voice smoking is prohibited to active voice, we get: “The Minnesota Clean Air Act prohibits smoking.”
Or consider this example, which is an actual letter from an apartment-management company to its renters living in an upscale apartment complex:
It is time for our annual garage cleaning. In preparation for our freshen-up, please make sure your parking spaces are empty of any loose items by . . . .
As a reminder, the garage is not intended for storage of any items except for your vehicle. Should you need additional storage, please see the office as we do offer personal storage units.
Any loose items remain [sic] in the garage after . . . will be removed and disposed.
Clearly, this is a poorly written letter. Let’s remove the nominalizations, wordy phrases, and passive voice:
It’s time to clean the garage. To prepare to clean it, you must remove all loose items from your parking space by . . . .
Remember, you cannot store any items in your parking space except for your vehicle. If you need additional storage, please contact us about renting a personal-storage unit.
If you don’t remove the items from your parking space by . . . , management will throw them away.
This revised letter is shorter, clearer, and better.
The first and third sentences in the revision contain contractions, which, if used sparingly, are perfectly acceptable in legal writing, and even more acceptable in everyday writing. In the second sentence, To prepare to clean it is substituted for the nominalization in preparation for our freshen-up (is freshen-up even a word?). In the third sentence, the active voice you cannot store any items in your parking space is substituted for the passive voice/nominalization phrase the garage is not intended for storage of any items. In the fourth sentence, the typo is eliminated and the active voice is again substituted for the passive voice.
In short, nominalizations wreck the clarity and concision of legal writing. So clear up your muddy thinking, and take a hatchet to buried verbs. If you do, you will see an immediate improvement in your writing.