General Interest

---

Writing to Persuade the Busy Judge
Daniel U. Smith is a Certified Appellate Specialist in Northern California and he's a member of the California Academy of Appellate Lawyers. He teaches the CEB seminar "Persuasive Legal Writing."
E-mail: dusmith@pacbell.net
Website: www.appealsmith.com

Introduction
Judges’ Workload
Busy Judges Prefer to Read Plain English
Brevity
Simplicity
Clarity
13 Tips for Creating a Clear Train of Thought


Introduction
Too many lawyers write in a style not persuasive to a busy judge. We learned this unpersuasive style in college and law school; it's called the academic style. The purpose of academic writing is (at best) to analyze or (at worst) to show how smart the writer is. The academic style is marked by mind-numbing details, bloated sentences, and meandering paragraphs. These deficits demand of the reader a sustained effort, thus violating the ethics of writing ­ that the reader's part must never be a strain. When the task is not just to analyze but to persuade, we must jettison the academic style in favor of a style that meets the needs of busy judges.

Judges’ Workload
Judges who read our motions and briefs are extremely busy.

Consider a law and motion judge required to prepare 25 rulings each day and with only four hours to prepare. To prepare each ruling, the judge has just 10 minutes. Therefore, that judge can devote only five minutes to each principal brief.

Consider an appellate judge required to write 10 opinions per month (and to join or dissent in 20 more additional cases). That judge must read 90 briefs in 22 days ­ four briefs per day. If half of each day is consumed by opinion writing, writ conferences, oral arguments, phone calls, research, and other judicial and civic responsibilities, the appellate judge can devote to each brief (and its record citations and authorities) just one hour.

Busy Judges Prefer to Read Plain English
Busy judges can best assimilate the information they need when we write in plain English.

Plain English is the style of the Judicial Council's California Civil Jury Instructions (CACI). These instructions eliminate redundancies: "injury, damage, loss, or harm" (BAJI 3.76) is now "harm." (CACI 430). They avoid legal jargon: "circumstantial evidence" is now "indirect evidence." (CACI 202); "preponderance of the evidence" is now "more likely to be true than not true." (CACI 200). They eliminate negative and passive constructions: the old instruction that "Failure of recollection is common. Innocent misrecollection is not uncommon." (BAJI 2.21) is now "People often forget things or make mistakes in what they remember." (CACI 107).

Plain English is the style recommended by George Bernard Shaw: "In literature the ambition of the novice is to acquire the literary language; the struggle of the adept is to get rid of it."

Plain English is the trend. The Securities and Exchange Commission (SEC) now requires disclosure documents to use "definite, concrete, everyday words." SEC Rule 421. To help lawyers comply with Rule 421, the SEC created "A Plain English Handbook: How To Create Clear SEC Disclosure Documents" (1998). For online information see www.sec.gov/pdf/handbook.pdf. This valuable handbook is worth downloading and studying for its many tips on plain English.

Plain English has three main components: brevity, simplicity, and clarity.

Brevity
Judges extol the virtues of brevity: "[U]nnecessarily long briefs are counterproductive. They clog a good argument with excess verbiage. They tend to lose their persuasive edge as well as their credibility." Pregerson, The Seven Sins of Appellate Brief Writing and Other Transgressions, UCLA Law Review 431, 434 (1986).

E.B. White advocated brevity: "Omit needless words. Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences . . . This requires not that the writer make all sentences short, or avoid all detail and treat subjects only in outline, but that every word tell." Strunk & White, The Elements of Style, p 23 (2000).

Isaac Babel extolled the persuasive power of brevity: "Your language becomes clear and strong, not when you can no longer add, but when you can no longer take away." Updike, Hide-and-seek: The Complete Isaac Babel, The New Yorker, November 5, 2001, p 91.

To achieve brevity, delete what is unnecessary, redundant, or implicit. Benjamin Franklin's tale of the hat maker provides an example. Franklin told of a hat maker who proposed to advertise with this sign: "John Thompson, Hatter, makes and sells hats for ready money" (with the figure of a hat). But Thompson's friends urged many deletions: "Hatter" was redundant; "makes" was unnecessary (customers don't care who made the hat); "sells" was implicit; "hats" was redundant of the figure of a hat; "for ready money" was implicit because selling on credit was not customary. What remained was the core message: "John Thompson" (and the figure of a hat). Brands, The First American ­ The Life and Times of Benjamin Franklin, pp 511-512 (2000).

Similarly, when we strip from our verbiage all that is unnecessary, redundant, or implicit, what remains to persuade the busy judge is our core message.

Simplicity
Writing gurus advocate simplicity. Aristotle observed that "[c]learness is secured by using the words . . . that are current and ordinary." E.B. White wrote that "The approach to style is by way of plainness, simplicity . . ." Strunk & White, The Elements of Style, p 69.

Judges also advocate simplicity. Judge Alex Kozinski of the Ninth Circuit Court of Appeals wrote the following to your author: "[S]imple, direct language is more persuasive than convoluted language . . . First, simple language is more easily grasped . . . Second . . . simple language . . . forces the writer to focus his thinking and sharpen the argument. Third, abstract language can be easily waved aside by someone who is leaning the other way . . . So simplifying and clarifying is not just a nice thing to do to be kind to the judges. It's really the essence of advocacy." (Emphasis added.)

Don't fear that the judge will infer from your simple writing that you are simple. The opposite is true; simplicity in writing "paradoxically, . . . lead[s] readers to conclude that the writer is smarter." Garner, A Dictionary of Modern American Usage, p (x) (1998).

Simple writing need not be dull. English has many short, colorful words ­ use them. Consider "avalanche." The rule will produce an "avalanche of litigation." De Buono v NYSA ­ ILA Medical and Clinical Services Fund (1997) 520 US 806, 809, n 1. Or "blunder." "The criminal is to go free because the constable has blundered." People v Defore (NY 1926) 150 NE 585, 587. Or "cascade." "A cascade of exceptions that would engulf the rule . . . " Carlisle v United States (1996) 517 US 416, 430.

Clarity
The third essential quality for plain English is clarity, created by a clear train of thought. "Readers may understand individual sentences, but if they cannot see how that series of sentences `hangs together,' then no matter how clear individual sentences are, readers will not feel that they add up to a cumulatively coherent passage." Williams, Style: Ten Lessons in Clarity and Grace, p 101 (6th ed 1999).

13 Tips for Creating a Clear Train of Thought

1. Orient the reader at the start of a document, section or subsection, paragraph and sentence. Prepare the reader for what lies ahead.
   
2. In headings, assert your point, using the key terms or details you rely on in the text.
   
3. In the first sentence after the heading, use its key terms.
   
4. Repeat key terms in subheadings and topic sentences.
   
5. Develop points in a logical sequence that is obvious or stated.
   
6. Begin a new sentence where the last sentence left off.
   
7. Stay "on message." No detours (colorful but non-essential information).
   
8. Lead with the point (don't build up to the point). Then support the point.
   
9. Use the same word or phrase for the same thought.
   
10. In conclusions to sections, refer to the details analyzed above.
    
11. Avoid acronyms. Use a key word instead.
    
12. In court documents, put citations at the sentence's end (to ease the court's research). In office memos and client documents, put citations in footnotes (to ease the reader's burden).
    
13. In cases with many parties or witnesses, periodically restate the identity or role of a party or witness.

Great research and powerful reasoning are important tools, but they are not enough. To persuade a busy judge, we must present our research and reasoning in plain English.

 

Back to top

Drafting Business Contracts: Principles, Techniques and Forms