Law Life: Fixing poorly written opinions

By Mark Painter
The Daily Record Newswire

One good thing about writing about legal writing is that you are never at a loss for a bad example. Advance sheets come every week. Below, I picked a random case and extracted three paragraphs — not the worst, just three random paragraphs.

Here are the original paragraphs from the opinion:

In the case of multiple punishments, a defendant is protected only from multiple punishments that were not intended by the legislature. Legislatures are empowered to either permit or prohibit multiple punishments for the same offense. State v. Childs (2000), 88 Ohio St.3d 558, 561, 728 N.E.2d 379. By its enactment of R.C. 2941.25(A), the General Assembly has clearly expressed its intention to prohibit multiple punishments for allied offenses of similar import. State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, paragraph three of the syllabus. See also Maumee v. Geiger (1976), 45 Ohio St.2d 238, 242-243, 74 O.O.2d 380, 344 N.E.2d 133 (the statute is designed to prevent “shotgun convictions” and “double punishment” for the same offense); State v. Stewart, Franklin App. No. 05AP-1073, 2006-Ohio-3310, 2006 WL 1781412, ¶ 6, citing Rance, 85 Ohio St.3d at 635, 710 N.E.2d 699 (‘Ohio’s General Assembly has indicated its intent to permit or prohibit cumulative punishments for the commission of certain offenses through the multiple-count statute set forth in R.C. 2941.25’). This case involves the latter protection — the prohibition against multiple punishments for the same offense.

By contrast, the General Assembly exercised its power to permit multiple punishments by enacting R.C. 2941.25(B). State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 17; Rance, 85 Ohio St.3d at 635, citing Albernaz v. United States (1981), 450 U.S. 333, 344, 101 S.Ct. 1127, 67 L.Ed.2d 275. Here, however, we are not presented with such a case.

When the state elects which of the two allied offenses to seek sentencing for, the court must accept the state’s choice and merge the crimes into a single conviction for sentencing, Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 41, and impose a sentence that is appropriate for the merged offense. Thereafter, a “conviction” consists of a guilty verdict and the imposition of a sentence or penalty. See, e.g., Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 135; McGuire, 80 Ohio St.3d at 399, 686 N.E.2d 1112; Fenwick, 91 Ohio St.3d at 1253, 745 N.E.2d 1046 (Cook, J., concurring). The defendant is not “convicted” for purposes of R.C. 2941.25(A) until the sentence is imposed.

The entire case was written that way. Leaving aside the legal issues, there are many problems. Starting with the very first sentence — it’s redundant: In the case of multiple punishments, a defendant is protected only from multiple punishments that ... . The second sentence starts with a glaring nominalization — turning a verb into a noun for no reason: By its enactment of ... Why not “By” enacting?

The next 100 words are citation gibberish, placed right in the middle of the paragraph. Obviously, this jumble of letters and numbers should be banished to footnotes. By the time the reader gets past all

the letters and numbers and parentheses, the train of thought is derailed. The last sentence just pops up on its own.

The second paragraph is two shortish sentences, but it swells to more than double its length with the citation mishmash.

The third paragraph’s first sentence plops a citation in the middle. If there is anything worse than putting citations in paragraphs, it’s putting them in the middle of sentences . The next sentence begins with

“Thereafter,” which would be better as “Then.”

Here is my suggestion of how these paragraphs could be written more clearly:

Legislatures may permit or prohibit multiple punishments for the same offense.1 Defendants are protected only from multiple punishments that the legislature did not intend. By enacting R.C. 2941.25(A), the General Assembly prohibited multiple punishments for allied offenses of similar import.2

By contrast, the General Assembly permits multiple punishments in some cases under R.C. 2941.25(B).3 But this is not such a case.

The state must elect to seek sentencing for one of the two allied offenses. The court must accept the state’s choice, merge the crimes into a single conviction, and impose an appropriate sentence.4 A “conviction” consists of a guilty verdict and a sentence.5 The defendant is not “convicted” under R.C. 2941.25(A) until the sentence is imposed.
___

1 State v. Childs (2000), 88 Ohio St.3d 558, 561, 728 N.E.2d 379.
2 State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, paragraph three of the syllabus. See also Maumee v. Geiger (1976), 45 Ohio St.2d 238, 242-243, 74 O.O.2d 380, 344 N.E.2d 133; State v. Stewart, Franklin App. No. 05AP-1073, 2006-Ohio-3310, 2006 WL 1781412, ¶6, citing Rance, 85 Ohio St.3d at 635, 710 N.E.2d 699.
3 State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 17; Rance, 85 Ohio St.3d at 635, citing Albernaz v. United States (1981), 450 U.S. 333, 344, 101 S.Ct. 1127, 67 L.Ed.2d 275.
4 Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 41,
5 See, e.g., Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 135; McGuire, 80 Ohio St.3d at 399, 686 N.E.2d 1112; Fenwick, 91 Ohio St.3d at 1253, 745 N.E.2d 1046 (Cook, J., concurring).


Readability
The original was 367 words, with an average of 26 words per sentence. My version is 127 words (it would be 268 would if footnotes counted, which they don’t) and an average of 14 words per sentence.
The original was in the passive voice 21 percent of the time, and written at a 16.4 grade level. My version is in the passive voice only 11 percnt of the time, and written at a 11.7 grade level.

Mark Painter served as a judge on the Ohio Court of Appeals for 14 years, after 13 years on the Hamilton County Municipal Court. In 2009 he was elected by the United Nations General Assembly to the United Nations Appeals Tribunal. Judge Painter is the author more than 6 books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://books.lawyersweekly.com/. Contact him through his website, www.judgepainter.org.

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