The Trial Practice Tips 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."

Writing Tip: Draft Your Brief Before Reading Your Opponent's

It's a good way to stay on the offensive even when you're responding to an opponent's brief: write your first draft even before reading your opponent's brief.

Sound nuts? Maybe so, but it will make your written work stronger. It's also Tip #86 in Bryan Garner's The Winning Brief--

This tip will help you develop your case as well as you can. You won't find yourself in the defensive posture of merely responding to what your opponent says. Too many responsive briefs are entirely reactive.

If you prepare a draft explaining why the court's decision was correct, you'll be in an enviable position when your opponent's brief arrives. You'll be able to massage the draft to account for your opponent's points.

Many times, this tip works in the lower courts too. When you respond to discovery or pleadings motions, you often know your best arguments even before your opponent's memorandum arrives. Get started writing now and you'll be sure to write from a position of strength.

Related posts:

1. Design the Look of Your Brief to Make It More Readable

2. Reminder: Omit Needless Words

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

Impediments to Clear Writing

As Raymond Ward points out, Charles Halton's "Top 10 Impediments to Beautiful Academic Writing" could apply just as well to legal writing. Consider some of these impediments--

• Jargon
• Endless, rambling writing
• Being boring
• Not using section headings
• Failing to write regularly
• Failing to improve your writing

You'll find some engaging commentary in the two linked posts. Be sure to take a look. (Links originally from a list of sources complied by Celia C. Elwell, a paralegal in Oklahoma City.)

Related post: "Legal Writing: Is Shorter Really Better?"

Legal Writing: Is Shorter Really Better?

You've heard the conventional wisdom. When writing a brief, make it short, because shorter is better.

But is it really? Based on the briefs I regularly see in my own practice, many lawyers don't seem to think so. Even in courts that have imposed page limits on briefs, lawyers routinely include motions with their overlong opuses seeking relief from the court's guidelines.

What are the reasons for long briefs? Since I too have struggled with page limits, both as a defense lawyer and a plaintiffs' lawyer, I have a few ideas.

• A short brief means an unimportant brief. There is a sense that if one files a short brief, the court may conclude that the motion is not important or that the lawyer filing the brief doesn't feel strongly about it. Therefore, make it longer.
  
• If everything's not included, something might be waived. Another reason for long briefs stems from a belief that some hypothetical appellate court might conclude in the future that an argument was waived because it wasn't presented to the trial court. Therefore, make it longer.
• If every potential writer doesn't get his say, someone might have his feelings hurt. A third reason for overlong briefs is the type of law-firm management that allows numerous lawyers to get their hands on a brief before it's filed. Though it might be perfect when the associate drafts it, it gets bloated when supervising lawyers add this point and that point--points which the associate isn't expected to delete, or even revise, before filing. Brief-writing by committee never seems to work.

A fourth reason for long briefs is simply that writing short briefs is hard. Assuming you can get past all the other problems--that is, that you can convince yourself that the court will welcome a shorter brief, that it doesn't matter if poor arguments are waived, and that the fourth partner's five nonsensical paragraphs really should be deleted--then you're still left with all the other problems that face any writer trying to boil more down to less.

Unfortunately, there's no easy answer to this problem. But I do have some tips, gathered from my own years of writing briefs--

• You've heard a thousand times to "cut needless words." This is good advice, but you should think bigger, at least at first: cut needless pages.
• Begin by cutting any arguments that aren't strictly necessary. Next, begin to rewrite with a view to cutting out all the first-draft material that was necessary for warming up your mind and getting to the point where you knew what you really wanted to say. Now that you've said it, the warming-up is superfluous. Find your most important paragraphs, then read backwards from there: can any of the warming-up sentences or paragraphs be deleted without damaging your argument? If so, delete them. Your brief will be better for it.
  
• Finally, see if there are any redundancies. If so, reorganize your brief in a way that allows you to omit them. For example, if there are legal principles or factual explanations that apply to more than a single argument, organize your brief in a way that they only have to be stated once. Repeating factual and legal arguments is probably the single biggest cause of bloated briefs.

In addition to these "micro" tips, keep in mind four "macro" ideas that might help you to approach your writing in a new way--

• Learn more about writing. Seek out books for writers--not legal writers, but any type of writer--and read them every now and then. If you develop a passion for writing, your writing will improve.
• Seek out models of good legal writing. Whenever you get your hands on a brief that you think is well-written, copy it and put it into a binder. Use this binder to see how other lawyers have put into practice the ideas about good writing that are expressed in the writing books you've been reading in your spare time.
• Find an editor. Anyone who can tell you where your writing breaks down or becomes confusing will be a help to you. Since even a general reader should be able to follow the outline of your argument, think about letting a paralegal or secretary do more than just proofread your writing, but also comment on its readability. A spouse or older child can do this too.
• Set your writing aside. Finally, get into the habit of finishing a writing assignment far enough in advance of the deadline that you can set it aside for at least two days, but preferably more, before returning to it for a final round of editing. Once you've been away from your brief long enough to forget the specific rhythms of your writing, you'll be able to read it with the "fresh eyes" necessary for making substantial and important revisions.
  

For still other writing tips, see these articles I've written for the Illinois Bar Journal, republished on my law firm's website--

• "First Drafts Made Easy, "IBJ 6/03.
• "Five Steps Towards Persuasive Writing," IBJ 6/98.
• "Improve Your Legal Writing With Five Simple Rules," IBJ 2/97.

Writing Reply Briefs

"The Anatomy of an Effective Reply Brief," by Steffen N. Johnson, begins at page 29 of the Summer 2006 issue of Certworthy, the newsletter of the DRI Appellate Advocacy Committee.

The article contains many good tips like this one--

Your job . . . is to re-establish your theory of the case. In fact, by the time the judges have read the introduction to your reply brief, they should be singing your tune again, or at least remember what that tune is.

This is followed by two practical ways you can use to "get the judges refocused on the right issues and themes."

Certworthy is edited by Raymond Ward, who writes about other articles in the Summer issue at his weblog, the (new) legal writer. Thanks to reader Celia C. Elwell, a paralegal in Oklahoma City, for pointing me to the new issue of Certworthy.

Writing Tip: The Magic Formula for Structuring a Brief

In The Curmudgeon's Guide to Practicing Law, Mark Herrmann, writing as a curmudgeon, states, "Any child can write a persuasive brief. Here's the magic formula. Follow it."

It turns out that the magic formula is short, easy to understand, and will work in most situations. Here's about half of it, taken directly from the book.

I. Introduction

An introduction contains one or two short paragraphs. It has no footnotes. It says something sexy about the case.

II. Allegations of The Complaint (in a motion to dismiss) or

Undisputed Facts (in a summary judgment motion) or

Facts (for most other briefs).

In short sentences, bring the reader up to speed. Include in your statement of facts every fact that you will later mention in your argument. Do not include facts that are unnecessary for your argument.

III. Argument

Our client is entitled to win for [three] reasons. First, [reason one]. Second, [reason two]. Third, [reason three].

The rest of the magic formula includes advice for organizing each of the argument sections and drafting part IV, the conclusion. I stopped short of quoting the entire formula here, but if you want to read it, it's in the book's first chapter, which you can read for free on the publisher's website. It's titled "How to Write: A Memorandum from a Curmudgeon."

The publisher's website also includes the book's foreword and the table of contents. Be sure to take a look. Since I first posted about The Curmudgeon's Guide to Practicing Law in April, I've read the entire thing. It's easy to recommend, especially for litigation associates at large defense firms. All types of lawyers will benefit from reading the book's first chapter.

Still More Writing Samples

After Tuesday's post, a few readers emailed me to say that the Solicitor General's website is a good source of writing samples. Begin your review here. You'll see there is a way to view the briefs by subject matter, which will help you to avoid those briefs that are too dry for your own personal taste.

I also heard about this resource from Mike Cernovich of Crime & Federalism, who recommended it in a comment to an earlier post:

If you want to see great legal writing, just go to the U.S. Solicitor General's website and start reading. It doesn't get much better than Seth Waxman, Ken Starr, and Ted Olson. It's fun to read their briefs, as they all have unique writing styles. I also suggest reading anything by Miguel Estrada, formerly with OSG and now a partner at a large law firm. When I had unfetted Westlaw access in law school, I'd go to CTA-BRIEFS or SCT-BRIEFS and read everything by Estrada. Also, go to appellate.net and read some of the briefs by partners at Mayer. Whenever I'm writing a brief in an unfamiliar jurisdiction and want to get a "feel" for how things are done, I see whether the lawyers at Mayer filed in a brief in that jurisdiction.