The Trial Practice Tips Weblog

Legal Writing: Is That Judge Smart, or Not?

Does the use of simple words make you seem smarter? That's the topic of two recent blog posts from two different bloggers that I happened upon serendipitously by accident. One of the posts deals with a particular judge, which is the reason for the title of this post--

• "Use plain English, appear smarter (and more persuasive)," by Raymond Ward at the (new) legal wrtier; and
• "Mr. Garner's Simple English v. Judge Selya's Ultracrepidarian Lexiphanicism," by Martin Magnusson at Fairyland Castle.

As for the particular judge, I have no opinion. However, if you choose to take the advice suggested by most writing experts -- shorter sentences, shorter words, simpler writing -- here are a few tools that you can use to assess your own writing style:

• "Test Document Readability and Improve It";
• A tool for calculating your Gunning Fog Index;
• An explanation of various readability indexes.

Legal Writing in Crisis?

At Legal Blog Watch, Carolyn Elefant blames the deterioration in legal-writing abilities on the ubiquity of low-cost legal research tools-- 

While I believe that both factors --the informality of e-mail and lack of quality teaching -- have contributed to the decline of legal writing skills today, I think the main problem is the easy availability of low-cost, computerized legal research tools. These days, both students and lawyers can gorge on a glut of cheap reference sources, from today's less expensive LexisNexis and Westlaw, to tools like Casemaker or Versuslaw, to Google and other Internet search engines. Consequently, legal research has devolved into an exercise in "piling on", with lawyers adding cases and quotes merely to show strength through quantity of cases rather than quality.

The cure for this problem is easy enough: cut out the string cites. Although it's a tip you've probably heard before, it's one that's easily forgotten.

Meanwhile, as my own modest contribution to improving legal writing, I offer the posts from this weblog's legal writing category, including these--

1. "Self-Editing Tips for Legal Writers."

2. "Legal Writing: Some Free Advice."

3. "Six Posts About Better Writing."

4. "Reminder: Omit Needless Words."

5. "A Writing Tip that Pays Dividends in Reader Comprehension."

6. "Legal Writing Tip: Begin First Drafts in the Middle."

7. "An Easy Tip to Make Your Writing Look More Professional."

8. "I Don't Speak Latin, and Neither Do You."

9. "How to Easily Counter Your Opponent's Brief-Writing Venom."

10. "Legal Writing: Is Shorter Really Better?"

A Writing Tip You Can't Afford to Miss

What's the writing tip you can't afford to miss? Some hints--

• It's the topic of Chapter 43 of Bryan Garner's The Winning Brief.

• There are entire books written about it.

• It's a problem that's all around us, even in the title of this post. It will sap your writing of its energy and make a reader give up on you before he's even started.

The problem is cliché. As stated in Garner's book: "State your ideas freshly"--

Many clichés are almost exclusively legal. Consider the phrase it is well settled that--a phrase that many practitioners will defend by saying that it aptly introduces an idea for which there is much precedential support. In fact, it's a lame phrase because it's so worn out. A better phrasing is tailored to the situation: In a series of seven cases decided over the past decade, the New Mexico Supreme Court has consistently held that . . . Or this: Since 1938, the rule of this Circuit has been that . . .

In order to rid your writing of cliché, you have to be able to spot them in the first place. Look for phrases that are overused, that you've heard again and again, that you'd never call "original." Examples, not all of them from Garner: open-and-shut case, foregone conclusion, on all fours with, parade of horrors, Alice-in-Wonderland. 

When is the best time to hunt down clichés in your own writing? Do it first after the first draft, and then again when you are doing a final edit.

Bryan Garner Discusses Writing with Justice Scalia

The ABA Journal has emailed me to say that in addition to the Scalia-Garner freebie I mentioned in a post last week, there's also a free audio file in which Scalia and Garner discuss writing and oral argument.

You can find it here: "Podcast: Scalia and Garner on Appellate Advocacy."

Play the file directly from your computer or download it for transferring to an iPod or other MP3 player.

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.