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ISSUE V.5 |
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FEATURED ARTICLES |
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Special Report
Criminal Law 1 Criminal
Law 2 Civil Procedure Legal
Writing Employment
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FEATURE OF THE MONTH |
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ARCHIVE OF PAST ISSUES |
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TEST YOUR KNOWLEDGE |
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Legal Writing |
10 Steps to Persuasive Legal Writing
Daniel U. Smith is a Certified Appellate Specialist, State Bar Board of Legal Specialization, with offices in Marin County. For CEB he teaches “Persuasive Legal Writing”.
If someone says you think like a lawyer, that's often a compliment. But if someone says you write like a lawyer, that's always a criticism. Why is legal writing so widely criticized, and what can we do about it?
College and law school – bad influences on writing skills
First, let's admit that in college and law school, lawyers are subjected to several bad influences. In college, students are immersed in academic writing, a style posing great difficulties for the reader. Academics take pride in meandering introductory clauses, negative constructions, fancy words, and adverbs and adjectives that bury verbs and nouns. The focus of academic writing is on the writer — see how smart the writer is? If you, poor reader, can't hack it, too bad for you. College students unwittingly adopt the academic style.
These problems are compounded in law school by law review writing and judicial opinions. Law review writing is tedious and is larded with dense footnotes. Judicial writers usually lead up to the point and clutter their prose with a mass of citations at the beginning or middle of the sentence, destroying the train of thought.
These bad influences keep legal writing from being persuasive.
Examples of bad legal writing
Consider this sentence from a U.S. Supreme Court brief, asserting the constitutionality of Hawaii's use of eminent domain to purchase a landowner's leasehold interest to sell back to the tenant in fee:
Brief for Appellants, Hawaii Housing Authority v Midkiff, 467 US 229 (1984), p. 22.Not since such decisions as Coppage v. Kansas, 236 U.S. 1 (1915), which suggested that inequalities of bargaining power are “but the normal and inevitable result” of liberty of contract, id. at 17-18—decisions thoroughly repudiated by this Court for the last half-century-has it been doubted that regulation tending to offset the unequal bargaining power of employer and employee, or of landlord and tenant, see, e.g., Block v Hirsh, 256 US 135 (1921), is well within ordinary legislative authority.
This sentence's vices include a long introductory clause, a negative construction, passive voice, subject separated from verb, and excessive length (77 words).
Here is another beauty, which the Ninth Circuit cited as bad writing:
Gottreich v San Francisco Investment Corp., 552 F2d 866, 867 fn. 2 (9th Cir, 1977).“The duty owing from defendants to plaintiff in the abstract will vary . . . relative to the juxtaposition of the real world environmental encasement of the two sides. The concept of causation would seem less plastic.”
This writing is so abstract that we can't discern the point.
Here is another Ninth Circuit brief overloaded with initials:
Hon. Alex Kozinski, “The Wrong Stuff,” Idaho State Bar's Advocate (Mar. 2002) p. 10.“LBE's complaint more specifically alleges that NRB failed to make an appropriate determination of RPT and TIP conformity to SIP.”
Additional challenges
As these examples show, law school graduates are poorly equipped to write persuasively.
To make matters worse, the job of persuading a judge has inherent obstacles that our writing style must overcome: cases are complex (a wealth of facts and volumes of law to apply to the facts); judges are short of time; and writing as a form of communication is weak—no feedback from the reader and only marks on a page to hold the reader's attention.
10 steps to a persuasive writing style
Hence, lawyers should take seriously the challenge of forging a persuasive writing style. When we do take the challenge seriously, 10 simple solutions emerge.
These 10 tips will make your writing sharp—holding the judge's attention all the way to your conclusion. In addition, your mastery of the written word will enhance your stature in the judge's eyes, and your client will be grateful that your brief was powerful and understandable.1. Brevity: Write as concisely as you can. Pick words, clauses, sentences, paragraphs and headings that are as short as possible. Delete words that are not necessary to the thought; delete thoughts that are not necessary to the point. Cut anything that is redundant or implicit. Strunk and White's mandate to “omit needless words” is especially good advice for lawyers.
2. Simplicity: Choose the simplest word or construction. Good writers regard simplicity as a virtue. Aristotle said: “Clearness is secured by using the words . . . that are current and ordinary.” George Bernard Shaw said: “In literature the ambition of the novice is to acquire the literary language; the struggle of the adept is to get rid of it.”
Moreover, the trend in professional writing favors simplicity. The SEC now requires corporate disclosure documents to use “plain English,” “at a level the audience can understand.” U.S. Securities and Exchange Comm'n, “A Plain English Handbook: How to create clear SEC disclosure documents” (1998), p. 7. SEC Rule 421 requires disclosure documents to use “definite, concrete, everyday words.” And this year the California Judicial Council will publish civil and criminal jury instructions in plain English.
Though some fear that simple writing implies the writer is simple-minded, the opposite is true. Simplicity in writing “paradoxically, . . . lead[s] readers to conclude that the writer is smarter.” B. Garner, A Dictionary of Modern American Usage (1998).
3. Maintain a compelling train of thought. The reader is aided when we write in a straight line—announcing our point at the start, then offering supporting information in a tight succession of well-connected sentences, with no gaps or detours. What derails our train of thought is our desire to share with the reader all we know. But these detours slow the reader down on the way to our destination.
To achieve these goals—brevity, simplicity, and a compelling train of thought—here are seven more tips.
4. Start sentences with a link to prior text. Start the new sentence by showing the connection between the old and the new thought—either repeat words from the end of the prior sentence, or point back to the prior thought by restating (this; that; these; those), or start the sentence with a signal word or phrase, e.g.: “First,” “For example,” “In addition,” “But,” “Because,” “By contrast.”
5. End the sentence with the point of emphasis.
6. In headings, assert your point.
7. After a heading, explain how the point in the heading is supported by the text to come (a roadmap).
8. Limit each paragraph to one point, stated in a topic sentence.
9. Structure each argument in four parts: the roadmap; a neutral statement of the rules of law; an argument applying the rules of law to your case; and a conclusion.
10. Edit relentlessly. Edit outside the office (at home or a restaurant); have a colleague edit; read your brief aloud; edit the headings in the table of contents; edit from hard copy (not on screen).