The Illinois Trial Practice Weblog

A Don't-Miss Freebie from the ABA

The ABA Journal has excerpted "Making Your Case: The Art of Persuading Judges," by Justice Antonin Scalia and Bryan A. Garner.

The excerpt can be found here; a link to the book itself is here.

Meanwhile, there is an interesting article by Dahlia Lithwick about the book in Slate: "Justice Antonin Scalia is persuadable. Or he finally thinks you are."

The ABA Journal excerpt is in two parts, brief-writing and oral argument. To round out this post, here's a representative quote from part one--

Clarity is amply justified on the ground that it ensures you'll be understood. But in our adversary system it performs an additional function. The clearer your arguments, the harder it will be for your opponent to mischaracterize them.  Put yourself in the shoes of a lawyer confronting an opposing brief that is almost incomprehensible. You struggle to figure out what it means--and so does the court. What an opportunity to characterize the opposing argument in a way that makes it weak! This can't happen to you--your opponent will not be able to distort what you say--if you are clear.

For more about legal writing on this weblog (one of my favorite topics), see the "Legal Writing" category.

Self-Editing Tips for Legal Writers

When you're close to a final draft, use this self-editing checklist to add a bit of polish--or give it to your assistant to do the same.

• Are the headings correctly numbered?
• Are acronyms explained?
• Are the parties referred to in the same way throughout the brief?
• When referring to the parties, have you used proper form of singular, plural and possessive, e.g., "plaintiff," "plaintiffs," "plaintiff's," "plaintiffs'"?
• Is your use of any contractions stylistically proper, given the type of work you're writing?
• Have you relied too much on the passive voice?
• Can any sentences be shortened by breaking them in two?
• Are there footnotes that can be moved into the text or omitted entirely?
• Have you attempted to omit all needless words?
• Have you used a large word where a small one will do, e.g., utilize v. use?
• Have you examined each sentence for subject-verb agreement?
• Are all the words spelled correctly?
• Are the case citations complete and accurate?
• Have the cases been Shepardized?
• Are pinpoint citations complete and accurate?
• Are long quotations properly indented?
• Have you proofread carefully, not once but twice (including once backwards, if you desire complete accuracy)?
• Have you responded to all your opponent's arguments, or at least explained why you didn't?

Doubtless there are other editing points I've overlooked. Add them to your own checklist when you think of them.

The Supreme Court on Legal Writing

The news has already made its way around the law-related weblogs, but I wanted to bookmark it here for my own purposes: Bryan Garner's interviews about legal writing with eight U.S. Supreme-Court justices, all available in one place at LawProse, Inc.

In 2006-2007, Bryan Garner interviewed eight of the nine Justices about legal writing and advocacy. These are the complete interviews. Because the files are large, the videos may take a few moments to start playing.

LawProse is making these interviews available as a public service. Anyone may freely use these videos for educational purposes, with appropriate attribution to Bryan Garner or LawProse.

You should begin, of course, with Justice Scalia . . . and don't miss his "cocktail-party test" for determining whether your legal writing is being ruined by too much legalese.

Writing Tip: Using Footnotes in Early Drafts

Most agree with the idea that in legal briefs, you should cut the footnotes to a minimum.  Nonetheless, it's easy to "drop a footnote" using word-processing programs, and I do it a lot when I'm drafting--to add a note to myself about questions or revisions, or as a placeholder for a digression that can later be moved to another point in the brief.

You can fill up a brief with a number of such footnotes; in later drafts, you can omit them. Having the ability to add a footnote that will be omitted later will allow you to plow ahead when the most important goal is to get to the end of a draft and start over.

Persuasive Writing for Lawyers

As I wrote in a post last week, Mentor CLE offers free online video CLE courses on a number of topics, some tailored specifically to Illinois lawyers, some not. One of these free online video presentations is "Persuasive Writing for Lawyers" by Helen W. Gunnarsson.

Gunnarsson is an Illinois lawyer who frequently writes for the Illinois Bar Journal. Her lecture on legal writing lasts about an hour and covers the following topics, among others:

• The importance of telling a story;
• In aspiring towards brevity, how to tell what to leave out;
• The problem with making personal attacks;
• How to start a brief;
• Developing a personal writing style;
• Appropriate sentence length;
• Becoming a confident writer.
  

Gunnarsson's presentation is recommended for any lawyer who wants to get -- for free -- some good legal-writing tips. Illinois lawyers can also obtain CLE credit by paying a modest fee.

Legal Writing: Three Tips from Three Sources

Today's post contains three quick tips for legal writers. By following the links, you'll also find lots of additional advice:

• When addressing a court, don't adopt the technical business jargon of the parties without explaining it. (Tip from an opinion by Judge Richard Posner, as detailed in a post at the Pennsylvania Litigation Blog)
• Don't commit the double-identification sin ("the sin"), in which a writer inserts a parenthetical clarifying that which does not need to be clarified ("the unnecessary clarification") (Tip from "Writing the Persuasive Brief," by Judge William Eich in the Wisconsin Lawyer)
• Don't commit the used-car-salesman error, in which you try too hard to sell your position to a court. (Tip from "Persuasive Strategies for Appellate Brief-Writing," from Barger on Legal Writing).

Thanks to Celia C. Elwell, a paralegal in Oklahoma City, for these links. For much more on legal writing (one of my favorite topics), see the legal writing category on this weblog.

Recommended Weblog: the (new) legal writer

At the (new) legal writer, longtime legal weblogger Raymond Ward always has something interesting to say. An appellate lawyer in New Orleans, Ward describes his weblog as "A collection of resources for lawyers and other writers." Some representative posts:

• "150 resources" (linking to 150 resources for writing better, faster, and more persuasively);
• "How to write good legal stuff" (linking to a free guide to good legal writing);
• "How to write an appellate brief" (linking to one of Ward's own articles);
• "More help with dates" (linking to a tool that helps calculate due dates); and
• "A simple trick for more effective self-editing" (describing a couple of simple tricks).

  It's one for the feed reader.

Writing Tip: When You're Stuck, Pretend You're Writing a Letter

When doing legal writing, it's easy to trip yourself up by trying to select words that match an imaginary legal style that you're hearing in your "writer's ear." If you're writing a brief, for example, you might be striving for a sort of serious, elevated tone that you've picked up from reading cases. But nothing you write seems to measure up. What can you do?

Your mistake comes from adopting a tone and style that really has nothing to do with good legal writing. Rather than striving for clarity and understanding in the fewest words possible, you've adopted a way of writing that doesn't come naturally to anyone. You've elevated style over substance even before you've settled on the substance.  And the style you've selected isn't too great either.  The elevated, serious tone you're striving for exists mostly in your mind. You're probably better off leaving it out of your brief.

How do you do this in practice? There's an easy trick for getting yourself in the right state of mind for banging out a first draft quickly. Set down your brief and pretend instead you're writing a letter. "Dear Judge" the letter might begin. Or "Dear Senior Partner." If that's still too intimidating for you, pretend you're writing a letter to the person in the next office. Start your draft again from the beginning. Try to communicate what you are trying to say in a way that comes naturally to you--that is, exactly as you do when you're writing a letter or an email to someone you know.

Once the draft is going--and it will get going--you can revert back to the form the finished piece is supposed to take, free of the mental block that was making the words so difficult to get down in the first place.

For more on writing first drafts, see my article from the Illinois Bar Journal, "First Drafts Made Easy" (originally published 6/03, now reprinted on my law firm's website).

Fourteen Tips for Better Writing

Here's one worth reading: "14 Tips to Become a Lighter, Tighter Writer," by Ross Guberman in the Legal Times.

It's meant especially for new associates in large firms, but there are tips there for every lawyer. Enjoy!

Legal Writing: How to Begin a Brief or Memorandum

At the trial court level, most lawyers begin their briefs with an "Introduction" section. There's nothing wrong with this approach, but it leads to the mistaken notion that you should actually put an introduction in the introduction. You shouldn't.

Think of your your introduction more as an executive summary. Don't just introduce what's to come; instead, summarize everything that follows. You don't have to limit yourself to a single paragraph; use as much space as you need to summarize all your best points. Make the introduction self-contained--that is, summarize all the best parts of what's to come later in the brief--so that a judge doesn't have to read any further. You can cite cases or quote from them. If possible, be entertaining. At the very least, adopt a confident, decisive tone. Make it clear there's no way you can lose.

This is all easier said that done. After the continuation, I've posted a few examples from some of my own briefs. I don't mean to suggest they are models of style, but you'll get an idea of what I've described as a proper introduction. And since many lawyers follow this model in their own practice, you can begin to collect examples from briefs you run across in in the wild that you think have strong introductions.

For other writing tips, the Legal Writing Category of this weblog or some of the articles I've done from the Illinois Bar Journal:

• "Five Steps Towards Persuasive Writing";
• "Improve Your Legal Writing with Five Simple Rules"; and,
• "First Drafts Made Easy."