By Sue Carol Rokaw
Source: Survival Guide for New Attorneys, pp. 24-5
|Sue Carol Rokaw, currently an in-house counsel at Farmers Insurance in Los Angeles with 15 years of law firm litigation experience, has taught legal writing and research for many years.|
Legal writing combines artistry and wisdom: weaving critical facts into the fabric of legal theory coupled with knowing the most effective way to communicate so that the finished product fits the needs of your audience.
Nineteenth-century English theologian Charles Haddon Spurgeon got it right when he said: “Wisdom is the right use of knowledge. To know is not to be wise. Many men know a great deal, and are all the greater fools for it. There is no fool so great a fool as a knowing fool. But to know how to use knowledge is to have wisdom.”
As practicing lawyers, you have gone beyond the academic approach offered in law school legal writing classes and appreciate that writing as a lawyer is not about saying something that pleases you as the author. Rather, the most important aspect of legal writing, be it an interoffice memorandum, a brief, a contract, or correspondence, is whether the reader understands what you are saying. Thus, another lawyer in your office must quickly grasp your objective analysis, the court must be persuaded, your opposing counsel must know your clients’ positions, and your clients must understand what you are doing to protect their interests.
Communication experts say effective verbal communication requires competence, confidence, and focus. So it is with legal writing. However, unlike verbal communication, for which the speaker is necessarily present during the communication, legal writing must stand on its own and reflect these qualities to ensure the audience gets the point.
Competence is knowledge. Confidence is the courage to take knowledge and put it into action. Focus is understanding your purpose. Competence and focus are familiar concepts to practicing lawyers. The Rules of Professional Conduct require attorneys to possess sufficient learning and skill to perform legal services. Competence in legal analysis further requires an ability to perform legal research and use legal authority, whether statutory, administrative, or common law. Likewise, focus demands knowing the purpose of your writing. However, unlike competence and focus, confidence is often elusive in the context of legal writing.
Brevity expresses confidence in writing. “The writer does the most who gives his reader the most knowledge, and takes from him the least time.” Brevity is not about shortness; even lengthy writings may be brief in expression.
Achieve brevity through tightly crafted sentence structure, word choice, and organization. American dancer and choreographer Isadora Duncan captured the challenge of writing a tightly crafted sentence when she wrote, “It has taken me years of struggle, hard work and research to learn to make one simple gesture, and I know enough about the art of writing to realize that it would take as many years of concentrated effort to write one simple, beautiful sentence.”
Direct, tightly crafted sentences that start with the subject followed by a verb and limit the use of prepositional phrases, adverbs, and dependent clauses keep readers on track. Just as speakers who talk in long wandering sentences laced with tangential comments find themselves facing restless audiences, so, too, do writers who use lengthy, meandering sentences. Readers will simply skim over these sentences in search of the point. Like the restless listener, such readers question the writer’s confidence in the position taken.
Centuries ago, the Greek tragic dramatist Sophocles aptly wrote, “Much wisdom often goes with the fewest words.” For example, the sentence, “Despite the plaintiff’s ongoing treatment she was receiving after the accident from Dr. Kinder, the plaintiff’s pain did not subside,” can be revised to say, “The plaintiff’s pain did not subside despite Dr. Kinder’s ongoing post-accident treatment.”
So, too, it is with word choice. Words that are descriptive and compelling without being sensational are most easily digested and understood. Flamboyant language that struts around the page like a peacock distracts readers—whether they are the court, opposing counsel, or your client.
Likewise, words that exaggerate every point wear down and overwhelm readers. Present the truth as you see it; don’t make your readers struggle to find the truth. Nineteenth-century American theologian Tyron Edwards said: “Some so speak in exaggerations and superlatives that we need to make a large discount from their statements before we can come to their real meaning.” For example, a brief that concludes, “The defendant’s flagrant and utterly inexcusable failure to produce documents that the plaintiff reasonably requested absolutely justifies an award of sanctions,” is likely no more persuasive to a trial judge than the more direct yet forceful statement, “The defendant presents no justifiable reason to not produce the documents.”
Organization remains the final key to achieving brevity. Whether chronological, by issue, or otherwise, the overall organization of the piece should allow the reader to understand your point quickly and easily. “The finest words in the world are only vain sounds, if you cannot comprehend them.” By reading the first sentence of each paragraph of your completed writing, you can check overall organization and determine whether the reader can easily grasp the thread that ties the entire work together.
The knowledge that you bring to your work as a lawyer remains your biggest asset. However, the brevity of expression and knowing how to use it will lead to wisdom during your years of practice.
 Charles Haddon Spurgeon in THE NEW DICTIONARY OF THOUGHTS 703 (1955).
 See generally LYNN BAHRYCH & MARJORIE DICK ROMBAUER, LEGAL WRITING IN A NUTSHELL (2003); ELIZABETH FAJANS, MARY R. FALK, & HELENE S. SHAPO, WRITING FOR LAW PRACTICE (2004).
 See, e.g., BRYAN A. GARNER, THE WINNING BRIEF (2004).
 See, e.g., RICHARD C. WYDICK, PLAIN ENGLISH FOR LAWYERS (1998).
 ROCKHURST UNIVERSITY CONTINUING EDUCATION CENTER, COMMUNICATE WITH CONFIDENCE (2003).
 See CAL. RULES OF PROF’L CONDUCT R. 3-110. See generally MARGARET Z. JOHNS, PROFESSIONAL WRITING FOR LAWYERS 3-7 (1998) (reviewing professional responsibilities in pro- viding legal opinions).
 See LEGAL WRITING IN A NUTSHELL, supra note 2, at 1.
 Sydney Smith in THE NEW DICTIONARY OF THOUGHTS, supra note 1, at 719.
 Isadora Duncan in THE NEW DICTIONARY OF THOUGHTS, supra note 1, at 719.
 See generally PLAIN ENGLISH FOR LAWYERS, supra note 4, at 35-56 (explaining use of short sentences and word arrangement).
 Sophocles in THE NEW DICTIONARY OF THOUGHTS, supra note 1, at 703.
 See generally PLAIN ENGLISH FOR LAWYERS, supra note 4, at 57-83 (describing word selection); see also THE WINNING BRIEF, supra note 3, at 225-270 (explaining various aspects of word choice).
 Tyron Edwards in THE NEW DICTIONARY OF THOUGHTS, supra note 1, at 714.
 Anatole France in THE NEW DICTIONARY OF THOUGHTS, supra note 1, at 715.