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Bar News - September 9, 2005 Fixing Legal Writing Problems Can Be Easier (and Quicker) Than You Think By: Amy Vorenberg and Margaret Sova McCabe
In October of last year, we surveyed New Hampshire lawyers on the state of writing in New Hampshire. The results showed that legal writing is verbose and disorganized. Survey takers also found that lawyers do not always apply the law effectively. Anecdotally, we heard that the above scenario is frequently how lawyers get their legal writing done. Time is always an issue for lawyers, and writing well seems to get short shrift. There are some techniques that can help. Several years of teaching legal writing to law students have given the authors of this article some ideas that you can use to write efficiently and to edit legal documents. Writing Strong Initial Sentences A paragraph’s first sentence should give the point of the paragraph. Because lawyers often write as they think, the point is frequently reached at the end of a paragraph rather than at the beginning. Not only should the initial sentence of a paragraph give the point, it should also take a position. For example, the following sentence is a common form used by lawyers: “In deciding whether a defendant has intent to ‘drive’ a vehicle, the Court considers whether the defendant has control over the vehicle.” Compare this sentence with the one below: “Under New Hampshire law, ‘driving’ requires that the defendant exhibit outward signs of intent to control the vehicle, such as keys in the ignition.” The second sentence more precisely shows what the court requires, not just what it considers. It takes a position instead of introducing an idea. It also lets the reader know that the point of the paragraph is directed at the defendant’s intent. Presumably, the paragraph will go on to give another example or two and explain the court’s reasoning. One way to check initial sentences is to extract from the document only those sentences. Taken on their own, they should give the point of each new paragraph, take a position, and follow in logical order. Reverse Outlining Disorganized writing was the second-highest concern of survey respondents. A traditional way to organize thoughts is to outline before writing. However, as the recent Bar survey results show, time management is the number one concern of lawyers.1 Reverse outlining is a simple tool that can be used efficiently after the practitioner completes a draft. This tool allows the writer to evaluate more objectively what he or she has written. Many writers fail to critique their work closely once they have a working draft. Instead, many of us merely tweak language, producing a final draft that sounds good. Reverse outlining helps the writer get beyond language choice to examine ideas and organization. The following is a simple example: It is my opinion that an agreement should probably be negotiated with the prosecutor regarding the DWI charge against you because a trial would not be economically worthwhile or garner much success. My research indicates that New Hampshire law may favor the police’s position, and that your legal position is therefore unclear. As a result, although the outcome of the trial is not certain, you would be running a substantial risk of losing even after investing the substantial amount required to bring the case to a jury. This paragraph may sound good to the lawyer who is delivering some unwelcome advice but what does it really say? Reverse outlining requires the writer to examine each paragraph and ask the following three questions:
2. How do I prove this point? In the example, the proof offered is that New Hampshire law “may favor the police’s position.” While other points are made, the most tangible one is that the law does not support the client. But even then, it would not be entirely clear to the client how the law specifically favors the police. More specific information should be offered to the client. 3. What other information is in the paragraph (and should it be there)? Above, the writer includes information about settling, the uncertainty of a trial, but little concrete information. These questions can be applied to any legal writing. Armed with the answers to these three simple questions, the writer can write a more effective paragraph. First, he or she might ask, “What is the best way to approach this issue?” Convincing the client to negotiate with the prosecution seems to be the goal, but the attorney might have to decide what point will most likely motivate the client to do so. Applying reverse outlining to an entire document allows the writer to examine the overall organization, as well as how each point is supported by legal argument. The result of using this technique is clearly organized thoughts, with the added bonus of conciseness that comes from distilling one’s thoughts. Consider the rewrite of the paragraph after applying reverse outlining: It is my opinion that you should accept the plea offer from the prosecution in this case. Under New Hampshire law, you do not have to actually be driving to be convicted of DWI. If there is evidence of your intent to drive, that is sufficient. Since you were sitting in the driver’s seat with the motor running, albeit pulled over, that is most likely enough for the prosecution to show you were driving as defined in the statute. Using Facts A common complaint that we hear from lawyers and judges is that legal writing does not effectively apply precedent. Very often, legal writing will state conclusions about the law rather then show how the facts or reasoning of particular cases support a winning argument. In a survey of federal judges about the quality of legal writing, most judges reported that advocates’ use of precedent to analogize and distinguish cases was either “fair” or “good.” Less then 19 percent rated it “very good” and none rated it as “excellent.”2 Lawyers are missing a golden opportunity to persuade a judge. For the most part, judges do not want to break with precedent. Using a case’s facts and reasoning can support a winning argument and give a judge the hook needed to find your way. A document may be concise and well organized, yet lack content. Often in the rush to advocate for a client the busy lawyer neglects to ground his or her work in facts and law. Putting these essentials before a court can make your case a winner. Consider, for example, the following passage from a N.H. Supreme Court decision:3 This case is indistinguishable from Willard. In Willard, the defendant was found asleep in the driver’s seat of his vehicle in a parking lot with the vehicle’s engine idling. A police officer woke him, determined he was intoxicated and arrested him for driving while intoxicated. In holding that a rational trier of fact could find that the defendant was in actual physical control of the vehicle, we noted that “if circumstantial evidence were to prove that [the] defendant [ ] started his car before falling asleep, he would have been in actual physical control of it while awake and in the driver’s seat.” Id.; see also Atkinson v. State, 331 Md. 199, 627 A.2d 1019, 1028 (1993) (“Indeed, once an individual has started the vehicle, he or she has come as close as possible to actually [operating it] without doing so and will generally be in ‘actual physical control’ of the vehicle.”). Here, the defendant was also found asleep in the driver’s seat of a car in a parking lot with the engine running. Moreover, the defendant testified at trial that he unlocked the door, sat in the driver’s seat, pushed the clutch in, moved the gear selector to neutral, started the engine and turned on the heater. Given these facts and the reasonable inferences therefrom, a rational trier of fact could find beyond a reasonable doubt that the defendant was in actual physical control of the car before he fell asleep. See Willard, 139 N.H. at 571, 660 A.2d 1086. Affirmed. In this example, the Court extracts the key facts and law from Willard. Next, it explains how and why the law was applied in that case. Finally, the Court applies that reasoning to the Winstead case. This technique is very effective since it uses specific examples from previous authority to show the outcome of the present case. Skipping any of the steps would transform the opinion from showing an outcome to merely stating the outcome. Show, Don’t Tell So, how can practitioners efficiently check their work to make sure it shows rather than tells the Court (or decision maker) what the outcome should be? First, as you analyze cases, make sure you note the specific facts and law you will use. This will allow you to state specifics rather than generalities about both when writing. For example, instead of noting, “defendant was not driving,” note specifically what the evidence was and how it did not constitute driving: “Although the defendant was in the driver’s seat, the keys were in his pocket and he was asleep.” Next, compare the specific case facts to your client’s facts. Will you analogize to the authorities or distinguish them? Answering this question helps you decide how you will use the law to show the decision maker the importance of your client’s facts. Note how clearly the Court draws the analogy between Willard and Winstead. Your writing should do this for the Court. Finally, when the working draft is complete, try the following technique: In each sentence circle the law and underline the facts. Generally, each sentence should combine law and fact. There are, of course, exceptions to this guideline. Some sentences may state a legal test or a pure recitation of factual information. However, even in these instances, the reader would still expect to see how the law or facts were related in sentences that follow. This technique forces you to really see what is on the page, rather than skimming it for “flow.” Given the time constraints on lawyers, it is hard to labor over writing. On the other hand, spending a little extra time might make the difference between a winning or persuasive document and a neutral or losing one. This is time well spent. Margaret Sova McCabe and Amy Vorenberg are Legal Skills Professors at Franklin Pierce Law Center. Endnotes
2. Kristen K. Robbinbs, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write. 8 J. Leg. Writing Inst. 257, 269 (2002) 3. State v. Winstead, 150 N.H. 244, 248 (2003)
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