Bar News - August 16, 2017
Commentary: Some Thoughts on Good Legal Writing
By: Joseph D. Steinfield
“The difference between the almost right word and the right word is really a large matter. ’Tis the difference between the lightning bug and the lightning.”
– Mark Twain
Lawyers do four things. They read, they think, they talk, and they write. Good writing is the essential ingredient of effective advocacy.
Is “ingredient” the correct word to use? Is it the best choice? Does it meet the Mark Twain standard? Might I have chosen “element” or “component?” Should I have written “most essential” instead of “essential?” Why am I asking these questions?
The reason is that all of us should ask such questions all the time. Good legal writing is hard. It requires attention to detail. It is frustrating. It is time consuming.
The previous four sentences could have been a single sentence. And this paragraph could have been part of that paragraph. Am I allowed to begin a sentence with the word “And,” as I just did? Should the quotation mark I just used go inside or outside the comma?
The good writer is self-conscious to a fault, constantly engaging in the process of critical self-examination. This should happen at every stage, starting with the first draft, and continuing throughout the writing process. Justice Brandeis said, “There is no great writing, only great rewriting.”
The rest of this paper is in three parts. The first section offers axioms we all know but tend to forget. The second section deals with legal writing in general terms. The last section takes us into the details.
“Your main task as a writer is to distill the essence – to find its central idea, to describe its distinctive qualities using precise images. In other words, your main task is to work excruciatingly hard.”
– William Zinsser,
On Writing Well (1976)
Principles of Good Legal Writing
- Good writers are made, not born. No one is born knowing how to be a good legal writer. It is a skill that every lawyer needs to acquire.
- Writing well is difficult. It begins with preparation. You can’t write well about something you don’t know about or understand. Before you write, you need to learn everything you can about the entire case.
- Writing persuasively begins with credibility. I once heard a jury consultant tell a client who was about to be deposed, “You don’t have to win every battle.” Her advice applies equally to lawyers. It is good strategy to concede points you cannot win and focus on those you can.
- Bombast and hyperbole are the enemies of persuasion. Hemingway gave good advice to F. Scott Fitzgerald: “Write the best story you can, and write it as straight as you can.” That means no embellishment and no circumlocution.
- Avoid repetition. Repetition is not the hallmark of a careful writer but rather of a lazy one. We may need to repeat ourselves before juries, but the same is not true of good legal writing. Lawyers make this mistake all the time, apparently believing that saying something more than once, even several times, will somehow get the point across. The opposite is true. Brevity is more persuasive than long-windedness. Repetition implies either that the writer lacks confidence in the strength of the argument or that the writer doubts the judge’s ability to get the point. It is, almost always, more annoying than it is helpful.
- Go back to it later. We have all had the experience of wishing we could retrieve something we’ve written and submitted. Starting far enough ahead of time is a good way to avoid next-day remorse. Reading the next morning what you wrote the night before can be an eye-opening experience.
- Pride of authorship is hubris. Believing in oneself is a good thing, believing in one’s prose is not. The cutting room floor always has space available.
- Get help. Make it a regular practice to show the document to someone else in the office and ask for a critique. You don’t always need to ask another lawyer. Non-lawyers often make the best suggestions, such as “this sentence doesn’t make sense.”
- Weak arguments dilute strong ones. Writing for a court is not an exercise in issue spotting. Law students seem to believe that lawyers should make every possible argument because “you never know what will stick.” I recommend a standard that draws the line at plausibility, also known as “passing the smell test.” If you believe your legal position is reasonably worthy of being upheld, leave it in. If not, take it out.
- Be specific. A summary at the beginning of any legal document more than a few pages long is a good idea. Once you get to the guts of the document, however, don’t be in a hurry. Good lawyers write in specifics, and they do so incrementally. Warning: This paragraph is subject to an admonition. Never exceed page limits without the court’s permission.
- Borrowing comes with a risk. Not every word of every document needs to be original. Reinventing a well-written release is unnecessary, time-consuming, and risky. At the same time, when you borrow from someone else’s document, you may be perpetuating that person’s mistake. Once you use it, you own it.
- Be strategic. Good legal writing entails good legal strategy, which requires the exercise of good judgment. I will deal with some judgment issues in the following sections, but lawyers should be careful to keep their personal feelings out of the document.
The Process of Good Legal Writing
- Appearances matter. The document’s content is important, but it isn’t everything. If you want the reader to pay close attention, make sure the document looks right. Good legal writing includes attention to a document’s internal consistency, the width of the margins, the size of the font, the inclusion of page numbers, and everything else that the reader sees.
- Begin before you begin. Before a good writer writes, he or she “prewrites.” That can take various forms, depending on the nature of the document. In the case of a memorandum of law, an outline is the place to start. It will not only produce a better document, but it will make the writing process go more smoothly.
- Think structurally. A well-written document should be organic, with a beginning, a middle, and an end. Writing a factual statement is telling a story, and it should be chronological. Flashbacks are for movies.
- Clarity is king. If the reader misunderstands, or doesn’t understand, what you have written, the writing isn’t clear enough. There are different ways to write clearly, but a good starting point is to avoid legalese.
- Transitions are important. One sentence should lead smoothly into the next; and the same is true of paragraphs. The judicious use of words such as “Moreover,” “In addition,” “Nevertheless,” and “Accordingly” is often helpful. Another good one is “Indeed.”
- Stand in the reader’s shoes. One way to do this is to read what you’ve written out loud. If the writing is choppy, you will hear it. Then smooth it out so that it will be easy to navigate. One easy fix is to avoid overlong paragraphs. If a paragraph takes up more than half a page, it becomes hard on the eyes and difficult to follow. Turn it into at least two paragraphs.
- Respect the reader’s intelligence. Word processing has many benefits, but it has drawbacks as well. In former times, lawyers did not underline, italicize, or bold. Now we do it all the time because it’s easy and we’re afraid the reader won’t fully appreciate the importance of what we are writing. These devices should be used sparingly.
- Don’t write apologetically. Avoid beginning sentences with words such as “While” and “Although,” which signal that you think you have a problem. If you are confronting a troublesome issue, do it head on. Instead of, “While it may be true in some circumstances that evidence should not be admitted to vary the terms of a document…,” try “The parol evidence does not apply because…” Beginning a sentence with “So” may not be wrong, but it is questionable. “So insults your audience… undermines your credibility” … [and] demonstrates that you’re not 100% comfortable with what you’re saying.” (“How a Popular Two-Letter Word is Undermining your Credibility,” Fast Company, April 29, 2014.)
- Good legal writing doesn’t have to be boring. If you engage the reader’s attention and interest, you are more likely to prevail than if the reader can’t wait for the document to end. People read John Grisham books for a reason.
The Rules of Good Legal Writing
- Proofread everything. That includes memos, emails, briefs, letters, and anything else that contains words or numbers. No exceptions.
- Write grammatically. Do you know when to use “which” and when to use “that?” How about “like” and “as?” Are you allowed to start a sentence with conjunctions such as “and” and “but,” as I have done in this document? What about splitting infinitives, something lawyers, politicians, and army generals do all the time. General Petraeus’s recently said that when former Lieutenant, now Massachusetts Congressman, Seth Moulton was under his command, “He did not hesitate to forthrightly offer assessments to others.” Maybe that’s ok and I’m hairsplitting, but if you want to really write well (I just did it), at least know you’re splitting an infinitive when you do so, and decide whether it’s worth irritating the purist reader.
- Use pronouns the way they were meant to be used. Saying “She went fishing with Jeff and I” is cringe-worthy in conversation and unforgivable in writing. If you’ve forgotten some or all of these rules, consult a good English usage reference book.
- Write active, not passive, sentences. Do not say “Lies were told by the President.” Say “The President told lies.”
- No rule says that lawyers need to use legalese. You don’t have to use words such as, “a fortiori,” “arguendo,” “inter alia,” “malum prohibitum,” “inter alia,” and the like. You don’t even need to use “supra” and “infra” (“above” and “below” work fine), and while you’re at it, try discarding “heretofore,” “hereinafter,” and their ilk. You might also drop such archaic legal mannerisms as “Now comes the plaintiff,” “respectfully submits,” and “this honorable court,” none of which does any good. If the only reason to use such words and phrases is because “we’ve always done it that way,” that’s not good enough.
- Do it the same way. Style and usage within the document should be consistent. As an example, whether you underline or italicize case names, do it the same way throughout.
- Less is more. As you go through the process of rewriting, your sentences should get shorter, and so should the document. Rewriting is not the same as proofreading.
- Use descriptive headings. Memorandums and briefs should always have topic headings that reflect the content of what follows. This device is also useful in lengthy letters and emails. Do not leave such a heading stranded alone at the bottom of the page. Break the page.
- Do not misspell any word in any document. Technology helps, but don’t rely on it. Spell Check doesn’t know the difference between “through” and “threw.”
- Certain words do not belong in the legal writer’s vocabulary. My two least favorite ones are “lie” or “wrong.” Instead of “Plaintiff’s counsel is telling a lie,” you can say “Ms. Jones has misstated the facts” or “Mr. Jones leaves out certain essential facts.” The claim that “counsel is wrong” may itself be wrong. A better way to make the point is “Mr. Smith overlooks” or “Mr. Smith misunderstands ....”
- Clichés may have the ticket of admission, but only to the cheapest seats in the house. By definition, they indicate a lack of original thought. Yet not all clichés are created equal; some are worse than others. I can’t imagine putting such phrases as “back to square one,” “best thing since sliced bread,” or “bald faced liar,” in a legal document, although the last one shows up regularly in law-speak. Sometimes, however, you can bet your bottom dollar that nothing will work quite as well as the right cliché. (The heading paraphrases what Edward Bennett Williams said when asked, during a Supreme Court argument, whether common law malice is relevant in a public figure defamation case.)
- Case citations, standing alone, are not useful. If a case is worth citing, then include the jump cite (the page number where the important language appears), and add a short parenthetical after the citation that quotes or paraphrases the court’s holding. One or two citations on a particular point, three at most, are enough.
- Don’t overuse adverbs and adjectives. They have a tendency to interfere with the narrative.
- Use footnotes carefully. Footnotes can be useful as a way to avoid discontinuity in the main text. Ask yourself whether the footnote text is part of your argument. If it is, then it probably belongs in the body of the document.
- Do not accuse opposing counsel of bad faith. Your adversary’s motives and state of mind are beside the point. In any case, personal accusations will accomplish nothing and will annoy the judge. Describing the opposing lawyer’s argument with such adjectives as “outrageous,” “outlandish,” “preposterous,” or “shameless” is risky at best. You may not need an adjective at all, but if you do, consider “far-fetched,” “dubious,” “implausible,” or “unconvincing.” In short, attack the argument, not the arguer. Insults don’t win cases, persuasion does.
Here is one last piece of advice: Read as much and as often as you can. It will make you a better writer.
Joseph D. Steinfield
Joseph D. Steinfield, a Fellow of the American College of Trial Lawyers and a member of the adjunct faculty at the University of New Hampshire School of Law. He is a partner at Prince Lobel in Boston and is Of Counsel to the office of Thomas R. Hanna & Associates in Keene. He can be reached by email.