5. Sharpening Your Legal Writing Skills

By Scott Wood

Source: http://www.lacba.org/Files/LAL/Vol29No7/2006SG04.pdf


Scott Wood is a clinical professor at Loyola Law School, Los Angeles. He offers writ- ing workshops for litigators and one-on-one consultations.


As Benjamin Franklin wrote in Poor Richard’s Almanac, “You may delay, but Time will not.” Lawyers often write more and under greater time constraints than many journalists, novelists, and other professionals. They write under the pressure of relent- less deadlines and the need to communicate successfully to the most demanding and impatient of all readers—judges and other lawyers. To survive, lawyers need a consistent, efficient plan for structuring the analysis or argument, and then drafting and editing. They need to understand writing as a staged process similar to building a house.

Legal writing is a practical tool dependent on major principles and minor rules. The principles, which must be embraced and followed in every memorandum or brief, can be reduced to four: constantly consider the reader, point first at every level, make the client’s story compelling, and combine the five types of law.

Constantly consider the reader. Your readers are busy judges, judges’ law clerks, and supervising attorneys in your firm. They want the goods: analysis and argument that meet their expectations for normal legal writing. Remember IRAC? Virtually every first- year law student learns the mantra of Issue, Rule, Application, and Conclusion because it teaches the normal syllogistic structure of legal analysis and argument. Since virtually all legal analyses and arguments can be structured with a syllogism, much legal writing follows this form. Using this form to deliver the goods to a law-trained reader will meet that busy reader’s expectations. So, when organizing any analysis or argument, keep readers’ needs constantly in mind. Whenever possible, use a syllogistic structure to deliver the goods.

Point first at every level. Effective legal writing is a “pointed text.” [1] Begin the memorandum or brief with an issue statement, whether titled Introduction or Preliminary Statement. This section provides a succinct overview that sharply focuses the dispositive issues in the same order as the analysis or argument to come. The sections that follow then develop each major issue or contention.

Just as each major section of the analysis or argument delivers the goods up front, every part within the section—paragraph and sentence—also should make the point first. Law-trained readers expect point first at every level. This principle assures readers from the outset the memo or brief will be easy to parse and understand after the first reading.

Make the client’s story compelling. [2] Law school is mostly about the law; law practice is mostly about the facts. Since the facts of each case are unique, tell your client’s story. Always include a Statement of Facts and, depending on the case, some- times provide a Procedural History. Facts persuade and form the basis for effective storytelling. Cognitive psychologists have shown experimentally that most people do not think effectively in abstract general propositions. Rather, most people under- stand concepts best when they are expressed in the form of stories. [3]

Few lawyers have ever been taught how to tell a compelling story; a few tips will make a considerable difference. First, find a theme, a proposition about the nature and meaning of what happened. Think of the theme in Shakespeare’s play, Macbeth:

An ambitious general, pressured by his more ambitious wife, assassinates the king but wears the crown only briefly as he is haunted and cornered by his own violent death.

Distill the theme of your client’s story, and build the story around it. Since the rules prohibit explicit arguments or conclusory language, you must arrange the facts art- fully. Describe them so readers draw inferences favorable to your client. Artful arrangement requires four decisions: Whose point of view? Where to begin? Where to end? Which facts to emphasize, which to downplay, and which “nonfacts” [4] to include? Making those decisions consciously and strategically will produce a persuasive, compelling drama rather than a mundane chronology. In effect, an artful Statement of Fact is a powerful argument because it moves readers emotionally as well as logically to see the case your client’s way.

Combine the five types of law. One difference between novices and experienced lawyers is the latter habitually combine two or more of the five types of law: text, intent, case precedent, equity, and public policy. [5] The five types provide a checklist for lawyers who are drafting briefs. Analysis or argument based on text considers the plain meaning of the constitution, statute, or other legal document. Intent is based on the purpose of the text, the legislative intent, or, in a contract, the mutual intent of the par- ties. Case precedent, the most common type, provides the rule as illustrated, which is either analogized or distinguished. Equity is a broad type including tradition, morality, and fundamental fairness. Finally, public policy is based on a prediction about social effects, an analysis or argument about how the law will affect the public.

Each of the five types provides a major premise for a syllogistic analysis or argument. In the context of trial court litigation, the five types form a hierarchy, with text, intent, and case precedent controlling. Therefore, if the statutory text is directly on point or the leading case precedent applies, the trial court is bound to decide accordingly. Still, the best advocates combine arguments based on equity or public policy for maximum persuasive impact. Similarly, a comprehensive analysis includes two or more types of law.

“If you don’t keep it awfully simple, itwill become simply awful.” [6] The practical tools for clear and concise legal writing also rely on numerous rules, but most depend on the context. Some rules are points about style. Others pertain to grammar or punctuation. And some are techniques for format- ting and organizing. Remembering a few general rules can invariably produce clear writing that is easy to read.

Certain grammar and syntax rules have particular importance for legal writing, but since even these few cannot be adequately taught in a short article, study one of the many excellent books on this subject. [7] One of the most useful is Richard Wydick’s famous treatise, Plain English for Lawyers. [8] A few years ago, a lawyer said that Wydick’s book got him through the bar exam. He had failed the essay part the first time, so during his next preparation, he worked through every exercise in Plain English for Lawyers. His writing skills made a quantum leap. Yours will, too.

Keep sentences short. Concision is a mark of confidence, a hallmark of the best legal writing, and many judges wholeheartedly agree. Keep it short, not just sentences, which should average about 25 words, but also paragraphs, which should measure about half a page.

Prefer the active voice. Readers appreciate active voice sentences where they can quickly find the actor and the action without hacking through a thicket of clauses and qualifiers: “The court denied the motion” rather than “It was decided that the motion would not be granted.” “Counsel argued the gun was inadmissible” rather than “It was argued by counsel that the gun was inadmissible.” Remember the structure this way: Active people do things; passive people have things done to them.

Generally, avoid the passive voice because it is wordy and harder to read. However, sometimes the passive is useful, e.g., to hide the actor (“Mistakes were made”) or when the actor is irrelevant (“The Summons was served on defendant last Tuesday”). But prefer the active voice because “[t]he difference between an active verb style and a passive verb style—in clarity and vigor—is the difference between life and death for a writer.” [9]

Use verbs, not nominalizations. “Verbs are the most important of all your tools. They push the sentence forward and give it momentum.” [10] In contrast, nominaliza- tions—nouns created from verbs—bog down the sentence with abstractions. These words, all-too-familiar bureaucratic lard, are the words ending with -tion, -ancy, -ment, or -ence. Avoid them. Edit them out by finding the verbs they bury, and use those verbs to drive the sentence forward:

  • Conform, not be in conformity with,
  • Discuss, not contain a discussion of,
  • Amend, not make amendments to,
  • Refer, not make reference to.

Nominalizations create wordiness because they require articles and preposi- tions to prop them up. The strong verb not only moves the sentence but needs fewer words to do so.

Avoid left-handed sentences. Avoid lengthy phrases and clauses before the main subject and verb. The first few words in a sentence determine readability, but lengthy preambles provide no context and make the reader work too hard to find the main clause. Introduce with short phrases. Similarly, move long subordinate clauses out of the middle. Those qualifiers may be essential to precision but are better placed at the end. Keep the main subject and verb together.

Omit needless words. Draft early, and edit without mercy. Cut and condense by attacking flatulent words and phrases:

  • Unnecessary prepositions: He edited the memo with regard to omitting needless words.

  • Unnecessary pronouns: The judge said that it was an issue that counsel should address.

  • Needless “to be” forms: He is a man who believes that there is no single method for effective editing exists.

  • Meaningless expressions: It should be noted that tThere are two separate agreements.

Any survival guide is short on long term support. For that, you need not only one or more of the many fine books available on legal writing but also something more important—a personal commitment to improve your writing. With sustained effort over time, you can achieve consistent clarity and persuasive impact. Then you will not merely survive, you will succeed. ■

Endnotes

1 FRANCIS-NOEL THOMAS & MARK TURNER, CLEAR AND SIMPLE AS THE TRUTH: WRITING CLASSIC PROSE 84-86 (1994). See JOSEPH M. WILLIAMS, STYLE: TOWARD CLARITY AND GRACE (1995).

2 In an objective memo or law, the facts should be stated neutrally. The goal is not persuasion but an emotionally detached analysis.

3 CHARLES TILLY, WHY? (2006). See Malcolm Gladwell, Here’s Why: A Sociologist Offers an Anatomy of Explanations, THE NEW YORKER, Apr. 10, 2006, at 80-82. See also Steven L. Winter, Cognitive Dimension of the Agon between Legal Power and Narrative Meaning, 87 MICH. L. REV. 2225.

4 Nonfacts can have potent persuasive power. Consider the defense of a fraud case in which plaintiff’s reason- able reliance is in issue. The plaintiff’s nonactions show a lack of reasonable diligence. A catalog of nonfacts compels the inference that the plaintiff’s reliance was not reasonable.

5 WILSON HUHN, THE FIVE TYPES OF LEGAL ARGUMENT (2002) (elaborating on each type and demonstrating their interplay, particularly in crafting arguments). See also William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STANFORD L. REV. 321 (1990).

6 Fr. Tom Allender S.J., http://www.lifesjourney.org.

7 BRYAN GARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT WITH EXERCISES (2001); MARY BARNARD RAY & JILL RAMSFIELD, LEGAL WRITING: GETTING IT RIGHT AND GETTING IT WRITTEN (3d ed. 2000); JANE N. RICHMOND, LEGAL WRITING: FORM & FUNCTION (2002).

8 RICHARD WYDICK, PLAIN ENGLISH FOR LAWYERS (4th ed. 1998).

9 WILLIAM ZINSSER, ON WRITING WELL 68 (2001).

10 Id. at 69.

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