“Writing is the Great Invention of the World”―U.S. President and Lawyer, Abraham Lincoln
Written legal advocacy must be persuasive while competing with vast seas of other submissions engulfing the decision maker. To be clear, succinct and compelling all at once is no easy thing for lawyers at any level of experience. Although these observations are offered in the context of advocacy, they can apply to any professional writing, ranging from e-mail updates to supervising lawyers to memoranda for clients or judges.
Being believed is everything for lawyers – losing credibility chronically equates to losing cases. Therefore, new legal writers must be obsessive about accuracy. At least in person, a lawyer can attempt on-the-spot self-rehabilitation if mistakes are made with words that are spoken. There is less forgiveness, though, for inaccurate written words, particularly when you are making a first impression. Expectations are usually greater for written documents that are supposedly researched, written and edited with greater care and time for reflection. With mistaken papers, opponents usually have days if not weeks to dissect each error and maximize the counterattack. As a result, there is frequently zero tolerance for misstatements of fact or law.
Accuracy aside, no one will be persuaded by an advocate unless he or she completely understands the message. Chief Justice Roberts has observed that some legal writing forced the reader to “hack through the jungle” to understand the point. Like judges, law firm partners and supervising associates are too busy to swing machetes. Thus, your language should be simple, sentences should be short (avoid more than three lines) and thoughts should be organized logically. If any sentence is not clear the first reading, rewrite it until it is easy for a reader who may well be quickly skimming, rather intensely studying your submission.
Less is usually more in legal writing. According to studies, many lawyers find verbose submissions infuriating. The rest find them annoying. And many judges – in some courts most – will not read all the way through a long document. So increase your chances of getting close attention to your key ideas with fewer paragraphs. Avoid unnecessary arguments, pages, paragraphs, sentences or even words. The most famous speech in American history – the Gettysburg Address – consisted of ten sentences read in two minutes. Few, if any, can be compared to Lincoln, but we all should keep in mind his mastery of concise text. Spend time editing and re-editing your documents, eliminating everything that can be cut out as long as integrity, clarity and your truly important points are retained.
“Play to your audience,” said one U.S. Supreme Court Justice. Another leading federal judge said to imagine that you have “changed places with the court.” Thus, the key is to assess what is in the minds of the decision makers and try to view your case through their eyes. This perspective teaches that lawyers do not care for personal attacks, they are trying to understand the facts and law. Also, knowing your audience means understanding what will make the court want to rule for you. This almost always means that your position must be seen as fair and reasonable – hopefully, more so than your opponent’s. Most importantly, the instinctively fair outcome that you advocate must be one that is permitted by the law. By putting yourself in the decision-maker’s chair, you can better understand the good facts that need to be developed, the hard facts that must be explained, and the legal principles that insure that your result is the lawful result.
To succeed, written submissions almost always present a compelling factual narrative. For readers to easily understand those facts, chronological order is best. Emphasize good facts by adding details to focus further on them. Also consider – while avoiding undue repetition – referring to the strongest facts more than once. On the other hand, completely ignoring “bad” facts is risky because omissions that seem contrived to mislead the reader may forfeit the all-important need for credibility. When negative circumstances can be confronted and explained, they should be. If they cannot be, the best approach to bad facts may be a brief, bland acknowledgement that reduces their importance without reducing your credibility.
Various options exist for organizing your arguments, but, in all events, use a logical structure. You may choose to present them point by point, or by addressing issues of procedure before proceeding to the substance of the organic law. In general, though, the most effective strategy is to lead with your strength. Few cases are won by the lawyer’s fourth best argument. Judges, partners, and other sophisticated readers usually assume that the best comes first and if one tries to save the best for last, the unpersuaded reader’s interest may disappear before reaching your strongest points.
Whatever the structure, consider leading with a strong introduction that includes key highlights of your best facts while providing a roadmap to your legal arguments. While court procedures may separately require a summary of argument section, the introduction has a different purpose. The goal here is to intrigue the reader with a factual flavor that is compelling, while immediately engaging the reader with a taste of the legal arguments to follow. Simplicity and brevity are especially paramount here where you are merely trying to set the stage for the arguments to be discussed further on in greater detail.
At times legal writing may be inescapably technical – even tedious. A document characterized by visual monotony can compound the problem, so where possible, try to break up the text by using some of the strategies below.
Use topic headings to separate different points, visually as well as analytically. This technique is appropriate whether you are writing a memo or a document that a partner will submit in court. Effective headings usually constitute a single sentence that encapsulates the message of the discussion to follow. Along that line, create a blank space separating the topic headings from the previous section as well as from the succeeding paragraphs.
Using a larger font size for topic headings will break up the sea of words while emphasizing a key point. Even the busiest reader is likely at least to flip through the document. Once seen, the topic heading may be interesting enough to take the reader through the entire argument – an argument that may prove to be critical.
In addition to using topic headings between sections, you can also make the body of the text more visually digestible. Avoid string cites in the middle of the page – a sure fire formula for visual monotony. When myriad cases support an issue, the rules permit the point to be made by citing, “See ______ and cases cited therein,”or by citing a single case as “E.g.,” or even with a footnote of citations so that most of the support can be shown with less burden to the reader. Occasional variation in style – bold type face or occasional underlinings – as well as setting off clauses with hyphens – not commas – can add emphasis and variety.
Once you have considered the lessons discussed above, a concise formula for effective legal writing to remember is:
Kendall Coffey, partner at Coffey Burlington, has authored numerous legal works ranging from “The Due Process Right to Seek Asylum” in the Yale Law and Policy Review to the recently published book “Spinning the Law: Trying Cases in the Court of Public Opinion.” As the former U.S. Attorney for the Southern District of Florida, he provides legal commentary for network and cable news.
This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.
©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.
To view additional stories from Bloomberg Law® request a demo now