Bryan Garner on the problem of time-toggling

Lawyers often make their prose harder to follow than it needs to be. One of the worst culprits is time-toggling—those unannounced leaps from present to past, from recent to remote, from actual to hypothetical.

Each unmarked shift forces readers to rebuild and reorganize the story’s timeline in their minds, draining their attention and patience. What looks first like a minor stylistic choice turns out to be a mounting cognitive burden.

The hidden cost of time travel

Cognitive-load theory reminds us that working memory is sharply limited. Most readers can juggle only a few bits of data at once before overload sets in. When a paragraph lurches from one time frame to another, readers must rearrange and reconstruct the story’s scaffolding with every shift. Unannounced shifts in time strain comprehension and slow processing—especially in dense legal narratives.

Consider this sentence from a judicial opinion: “Defendant Arcadia Airlines, Inc. moves to dismiss a passenger’s claim for damages she alleges she incurred in an international flight.” So far, so good: one toggle from present (“moves”) to past (“she incurred”). But the next sentence piles on: “Mariella Gamez seeks damages for her alleged injuries during a flight from Los Angeles to Mexico City on the basis of the Warsaw Convention (1929).” Now we have the present (“seeks”), the recent past (“injuries during a flight”), and the distant past (emphatically ending the sentence with 1929). The opinion soon toggles back to the present: “The Court hereby grants Arcadia’s motion.”

Three sentences, four shifts. Each one forces the reader to reassemble the timeline. The mind works harder just to keep track of when things happen.

How many shifts are too many?

Studies in reading comprehension and narrative psychology agree: Every unmarked time shift increases cognitive load, and the effects intensify fast. Two or three quick toggles in a short passage can overload even attentive readers. Each jump requires a mental “reset.”

Sensing the confusion, many legal writers respond by condensing their facts. That may lessen the load, but it also dulls the story. The cure is worse than the disease.

Chronology, by contrast, offers a natural clarity. Watch what happens when the same case is told in time order: “In October 2003, on a Hispania Airlines flight from Los Angeles to Mexico City, passenger Mariella Gamez went to the lavatory. The jet suddenly hit turbulence, throwing her against the wall and injuring her arm and shoulder. Those are her allegations. Because Hispania operated the flight under a code-share agreement with Arcadia Airlines—through which Gamez booked and paid—she sued both carriers under the Warsaw Convention. Arcadia moved to dismiss under Rule 12(b)(6). The Court grants the motion because the Convention permits recovery only from the operating carrier—in this case, Hispania.”

This version flows. It honors the reader’s normal sense of time. There’s one gentle reminder—“Those are her allegations”—but otherwise, no temporal gymnastics.

Conventional traps

Legal conventions practically invite time-toggling. One is the reflex we just saw illustrated: opening with a statement about the lawsuit itself (“Jane Doe sued Acme Corp. for …”). That opening entangles two stories: the dispute and the litigation about it. If you instead begin with the events that gave rise to the case, readers can grasp the problem before facing the procedure.

A similar problem occurs—every time—with Now comes … or, as it is often rendered, Comes now … .

Still another offender is the Whether—starting issue statement that lawyers use in appellate briefs: “Whether an employee [hired Oct. 2020] who makes a contract claim [Sept. 2022] on the basis that her demotion [July 2022] violates her employment contract [Oct. 2020], and who makes a timely demand [Aug. 2022], may be disqualified 1764463780 from pursuing attorney fees … .”

Six toggles in one sentence. Compare the chronological rewrite: “In October 2020, Kendall Co. hired Lora Blanchard as a senior analyst. Nearly two years later, in July 2022, the company demoted her and cut her pay. The next month, she sent a demand letter for reinstatement to her previous status. In September, she sued for breach of contract, seeking attorney’s fees. Is she entitled to those fees under the Attorneys’ Fees in Wage Actions Act?”

That reads like a story—one the reader can follow without rereading.

Mental taxation

Every unheralded leap through time exacts a toll. When prose dizzyingly flings readers backward and forward, comprehension erodes and recall falters. Judges, clerks and colleagues may misread key facts—or miss them entirely. Clarity declines, and credibility goes with it.

How to stay in time

1. Default to chronology. Let time move forward unless there’s a compelling reason to deviate.

2. If you can’t avoid time shifts, minimize them.

3. Signal most shifts. Use cues like “Earlier that month” or “When the contract was signed … .”

4. Reorient after big jumps. “By contrast, today …” or “This despite what had been promised three months before.”

5. Visualize the sequence. Visual aids like timelines and bullet points can clarify complex procedural histories.

The takeaway

Time-toggling is more than a stylistic tic—it’s a cognitive trap. Each unmarked leap demands that your readers make a mental reset that breaks fluency and burdens understanding. The remedy is simple: Respect the reader’s finite cerebral energy. Keep the timeline clear, mark your shifts, and let the story flow in order.

When you have an empathetic understanding of how readers experience time in your writing, you control comprehension—and persuasion follows naturally.

Bryan A. Garner. (Photo by Karolyne H.C. Garner)

Bryan A. Garner is the author of The Winning Brief, Garner’s Modern English Usage and Legal Writing in Plain English.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.