To Be or Not To Be

October 19th, 2015 2:22am - Posted By: Mark Cohen

Is", "is." "is"—the idiocy of the word haunts me. If it were abolished, human thought might begin to make sense. I don't know what anything "is"; I only know how it seems to me at this moment.

                                                                                    Robert Anton Wilson

Would you like to clarify your thinking? Construct more persuasive arguments? Improve your writing? Reduce misunderstandings? You can. Just avoid using the verb to be.

To be creates problems because we tend to use it like an equal sign. We say, “The cat is white.” But cat and white are two different concepts. Cat denotes an animal. White denotes a color. If we can’t use is, we must instead say something like, “The cat has white fur”a more accurate statement.

In the English language, the verb to be has at least seven distinct functions: identity (The cat is Garfield), class membership (Garfield is a cat), class inclusion (A cat is an animal), predication (The cat is furry), auxiliary (The cat is sleeping), existence (There is a cat), and location (The cat is in the hat).

Alfred Korzybski, a Polish-American scholar who once served as a Russian intelligence officer, felt two forms of to be—identity and predication—had structural problems that often led to circular definitions. More generally, he believed our need to experience the world through language frequently led us to faulty conclusions, and he developed a discipline called general semantics intended to help avoid this.

D. David Bourland, Jr. studied under Korzybski. Bourland agreed that our use of to be often caused faulty reasoning, and in the late 1940s he began experimenting with a form of English that eliminated any form of to be. He named this form of English “E-Prime” (short for English-Prime). He published an essay on it in 1965.  Bourland’s essay generated controversy, and continues to today, but for lawyers E-Prime offers many benefits:

1. E-Prime reveals the observer. The statement “The earth is round” conveys an impression of completeness, finality, and time-independence. It sounds like an absolute truth, just as the statement “The earth is flat” once sounded like an absolute truth. Using E-Prime, we must instead say something like, “The earth looks round to me.” This reveals an observer, and observers may have flaws in perception.

2. E-Prime forces us to distinguish between ourselves and others. Instead of saying, “The people are opposed to the proposed legislation,” we must say something like, “57% of the voters oppose the proposed legislation.”

3. E-Prime prevents us from passing off our opinions as fact. Instead of saying, “That is a terrible decision,” we must say something like, “I do not agree with the court’s reasoning in that decision because . . . ” Bourland referred to use of to be as a “Deity mode of speech,” which “allows even the most ignorant to transform their opinions magically into god-like pronouncements on the nature of things.”

4. E-Prime helps avoid broad assertions crossing boundaries between past, present, and future.In E-Prime we can’t say, “Your client is untruthful,” which suggests a permanent state, but must instead say something like, “A jury convicted your client of perjury in 1995.”

5.E-Prime avoids using passive voice. Instead of writing, “Your client’s claim will be considered by our claims department,” we must instead write something like, “Our claims department will consider your client’s claim.” We’ve just gone from a sentence with 10 words to one with only eight words. This can be useful when drafting motions or briefs subject to page limits.[v]Avoiding passive voice also forces us to identify the responsible parties. Instead of saying, “Mistakes were made,” we must say, “Cindy made a mistake.”

6.E-Prime promotes accuracy and reduces ambiguities. To say, “She is a good judge” may create confusion because “good” may mean different things to different people. We may both consider her a good judge, but for different reasons. It is more accurate to say, “The Judicial Performance Commission gives her consistently high ratings” or “Her opinions are well written.”

7.E-Prime avoids judging and labeling. If we say, “Joe is Catholic,” we may immediately assume Joe holds certain views on political issues. If we say, “Joe attends the Catholic church,” we are less likely to stereotype Joe. Many psychotherapists, particularly those practicing rational emotive behavior therapy, now employ E-Prime with patients. When a patient tells himself, “I am fat,” he places a negative label on himself. Rational emotive behavior therapy requires that patient to instead say something like, “I weigh 15 pounds more than I want to.”

8.E-Prime promotes healthy discussion. If we tell someone, “You’re wrong,” it seldom goes over well. If instead we say, “I see it differently” and explain why, we may begin a healthy discussion.

9.E-Prime reduces hidden assumptions. We may say, “He is happy,” but we don’t know that. We improve accuracy by saying, “He smiles a lot” or “He appears happy.”

10.E-Prime improves creativity. Instead of saying, “There are no solutions,” we must instead say something like, “We have not yet found any solutions.”

11.E-Prime prevents generalizations and helps problem solving. Instead of saying, “Our client is difficult,” we must instead identify the problem and say something like, “Our client has unrealistic expectations.” Having identified the problem, we can then consider possible solutions.

12. E-Prime makes us more aware of how we use language and how it impacts thinking. Learning E-Prime feels like learning a new language. But instead of learning new constructs, you unlearn what you think you already know.

For all these reasons, E-Prime can improve relationships, communications skills, and your skills as a lawyer. When you learn to “think in E-Prime,” you’ll draft better documents and make your pleadings more precise. You will write something, but then you will stare down at it, see some form of to be, and ask yourself whether you can be more precise. This precision will pay dividends down the road because your pleadings won’t contain generalizations opposing counsel can later use against you.

Thinking in E-Prime benefits litigators and trial lawyers. For instance, in a Fortune 100 company’s Annual Report, the CEO wrote, “I’m excited that we are leaders in integrating digital and physical retail in a seamless fashion.” Now imagine you are deposing that CEO about that assertion. The assertion “We are leaders” raises endless questions. In whose opinion is the company a leader in that area? What data does the company possess to support that assertion? Did the company conduct polls to determine what companies are considered leaders in that area? If so, who designed the poll? Who conducted it? When? Did the company analyze data to compare its performance in that area to that of its competitors? If so, what data did the company collect and who has the data now?

When you see “is” in a pleading, your E-Prime radar should alert you that you need to examine it. When you hear “is” during a deposition or in testimony, your ears should stand up like Scooby Doo’s and you should think, “Ruh Roh.” It means you need to question or probe.

So, give E-Prime a try. If nothing else, it will exercise your brain. But be mindful that there may be times when E-Prime interferes with brevity or some higher artistic purpose. It is probably good that Elvis sang, “You ain’t nothin’ but a hound dog” rather than, “You possess many of the qualities hound dogs possess.”

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How I Write

April 10th, 2015 4:26am - Posted By: Mark Cohen

Writing is simple.  Here is my step-by-step guide.

First, use the bathroom.  Unless you have an overactive bladder or IBS, you shouldn’t have to go again for at least one hour.  Thus, you have already eliminated one possible excuse you might otherwise use to justify not writing.

Second, find a quiet place where family, friends, missionaries, and door-to-door salespeople cannot bother you.  If the phone rings, ignore it.  (If you must answer, try saying, “North Korean Defense Ministry, how may I help you?”).  I get a lot of good ideas this way. 

Third, sit in a comfortable chair, close your eyes, breath easily, and visualize a big dumpster on a hot day.  Smell it.  See the flies buzzing around it.  Now visualize all the nitpicky little rules your high school English teacher drilled into you, and toss them into the dumpster.  Good.  Visualize all the cookie cutter formulas reviewers love to use as a checklist in writing their reviews, and toss those into the dumpster too.  Walk away from the dumpster.  Don’t look back.  You feel better already, don’t you?

Fourth, now you must escape your analytical mind.  Remember, the root word of “analytical” is “anal.”  Writing is not a logical process.  If you write in a left-brained state, an obnoxious little voice inside your head will criticize every sentence as it appears on your monitor.  “That sentence sucks,” it will say.  “I’ll never be a good writer.  I am a failure and always will be.  Maybe I should move to Finland.” 


There are proven techniques to help free yourself from your analytical mind.  A glass of good cabernet is one, but that is not always feasible, particularly if you like to write while driving.  If wine is not an option, a few minutes of meditation should do the trick.  Count backwards from one hundred in multiples of three.  Draw a picture of a platypus with your non-dominant hand.  Utter a few lines from your favorite movie.  One of my favorites is, “Captain, it is I, Ensign Pulver, and I just threw your stinkin' palm tree overboard! Now what's all this crud about no movie tonight?”[1]  It does not really matter how you do it – just get your mind into a creative state.

Now you are ready to write.  This is the fifth step. Don’t think about what you are going to write.  Thinking is bad.  If you type “the” and immediately sit back to ponder whether you might have used a better word, go back to Step Four.  Have another glass of cabernet. 

Just write.  If you don’t know what to write, type one sentence – whatever comes into your mind.  If the best you can do is, “The car was red,” that’s fantastic!  Now you have a storyteller and an object – a red car.

Now write a few more sentences – whatever comes into your mind.  “Joe hated red cars.  He had hated them ever since his stepfather made him take the red Volkswagen on the night of his senior prom, more than ten years ago.”  Wow, we have a character – Joe.  We know he is ten years out of high school.  We know he had a stepfather.    

We need a plot.  Write a few more sentences – whatever comes into your mind.  “But this car was different.  Not only was it red on the outside, it was red on the inside.  Blood red.  And it was his stepfather’s blood.  Yes, Joe had some ‘splainin’ to do.”

Now we have our first paragraph! 

I do not enjoy outlining or creating character profiles.  That is work, and I don’t like work.  I prefer to just write, knowing that I will edit and change things as my story progresses.  By the time I complete this book, there may not be a red car, or a Joe, or a stepfather.  Maybe my subconscious will come up with an idea while I am sleeping.  The point is that I got something down on paper – I now have some raw material that I can shape and mold a little bit more each day.

That’s how I write. 

Oh, I forgot to tell you.  This process works for me; it might not work for you.  If this does not work for you, toss it into the dumpster and find something that works for you.

[1]That line was uttered by Jack Lemmon in Mister Roberts.  He was talking to James Cagney, who played the role of Captain Morton.  

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The Taco of Writing

April 10th, 2015 4:05am - Posted By: Mark Cohen

Writers and other creative types hear a lot about Taoism these days. Walk into any bookstore and you'll find books on everything from the Tao of drawing to the Tao of Pooh. And there are several quotes from Lao-tzu in Julia Cameron's The Artist's Way. I’m a big fan of Lao-tzu, the Chinese philosopher credited with founding Taoism in the sixth century B.C., and to the extent Taoist thinking helps artists get into a right-brain state, I'm all for it. But I don't want to write about the Tao; I want to write about Tacos.

No matter how easily you are able to let your creativity flow with the great Tao, we must all earn a living while waiting for agents and publishers to discover our brilliance. In 1995, I decided I wanted to write a mystery. I left a lucrative law practice to return to Colorado and devote more time to writing. We had saved some money, but after making the down payment on our new mountain home, we had enough money left to rent one movie and buy one package of orange circus peanuts at the Kwik Mart.

So I had to find a job, and I had to find one fast.  I didn't want to practice law, and I knew a traditional eight to five job would be hard on my writing. So I did a bunch of different things. I wrote articles for a legal publisher and even drove a delivery van for my brother's company. I also became a Taco Bell inspector.

Being a Taco Bell inspector was not a full-time job; all I had to do was visit eight Taco Bells every so often and pretend to be a customer. I would order a taco, a bean burrito, a Burrito Supreme, and whatever the LTO (limited time offer) item was. 

I would weigh each item and measure its temperature, but my job didn’t stop there. As a trained professional, I kept track of the time it took to receive my food. I made sure all employees wore the proper uniform. I assessed the level of cleanliness.  Most importantly, I checked to see that the condiment trays were at least 2/3 full. Only then, when I had completed my covert mission, did I fax my report to headquarters.

At five or ten bucks a pop, you won't get rich being a Taco Bell inspector. Still, once I learned the tricks of the trade, I could hit all eight of my stores in less than three hours. In my case, that came out to about $15.00 an hour for a job which allowed me to wear shorts, eat like a sloth, and rock out while driving in my SUV.

Okay, maybe I've romanticized it a bit. It wasn’t all gourmet food and hot dames. It got old after a while. We had more burritos in our freezer than we know what to do with. I even tried using burrito chunks as bait at Barker Reservoir.

It was difficult to go from being a lawyer with a fancy office to being a Taco Bell inspector with a truck full of shredded lettuce and straw wrappers, but I stayed afloat financially and had plenty of time to write. I eventually got two mysteries published and made some money, but not enough to retire. One was a Book Sense mystery pick.

But I did what I had to do in order to write. As Lao Tzu said, "No calamity is worse than to be discontented."  And that's the Taco of Writing.

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