Legal Writing Presentation 2011

Tips for Writing Better Briefs

2010

David A. Kelly

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“When it comes to plain talk, lawyers are the worst. Most speak and write as if they live in a repository for dead bodies. When they write briefs that some poor trapped judge must read, they fill them with heavy, gray, lifeless, disgustingly boring word gravel—piles of it, tons of it. When I read most briefs I want to scream. I want to throw the brief out the window and jump. If I could find the author, and had the power, I would make the villain eat the thing a page at a time without salt or catsup.”

Gerry Spence, How to Argue and Win Every Time 105 (1995).


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I. The Writing Process

II. Form, Flow, & Structure

III. Editing 101—Choosing Your Words Carefully

IV. Editing 201—Mind Your Rhythm and Cadence

V. Document Design

VI. Style Advice From Noted Writers

Contents


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The Writing Process


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Writing is a Four-Fold Process:

The Writing Process

This process need not—and seldom does—occur in rigid, linear sequence; rather, most writers move back and forth as needed.

1. Thinking;2. Outlining;3. Writing;4. Re-writing.

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“Good writing . . . comes only from clear thinking, set down in simple and natural speech, and afterwards revised in accordance with good usage.”

David Lambuth et al., The Golden Book on Writing 4 (1964).

The Writing Process

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1. Thinking

Before you begin writing, think through the task at hand:

•Determine your objective;•Gather all necessary information;•Think about the points and arguments you want to make.

The Writing Process

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“[J]ust as you wouldn’t go on a cross-continental trip without a roadmap, you shouldn’t start writing sentences and paragraphs before you have a plan for the entire piece.”

Bryan A. Garner, The Elements of Legal Style 57 (2nd ed. 2002).

The Writing Process

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2. Outlining

Once you have your points in mind, start an outline:

•Write down all of your ideas as quickly as possible, even the bad ones;

•Arrange your ideas in logical form, from strongest to weakest;

•Then eliminate the weakest points.

The Writing Process

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“Your only goal during the first draft is to get things down on the page so that you can start rewriting. The first draft has no other value. Regardless of how many faults it has, the first draft accomplishes its entire purpose merely by coming into existence.”

Richard K. Neumann, Jr., Legal Reasoning and Legal Writing 58 (2d ed. 1994).

The Writing Process

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3. Writing

Now start writing the first draft;

• At first, simply develop the points in your outline;

• At this point just “free-write” – don’t worry about

organization, structure, or syntax.

• The key is to keep everything moving.

The Writing Process

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“There is no such thing as good writing. There is only good rewriting.”

Justice Louis Brandeis (quoted in George W. Pierce,The Legal Profession, 30 The Torch 5, 8 (1957)).

The Writing Process

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4. Rewriting

Once you’ve completed a first draft, read it from start to finish. Reassess the:

• Main ideas;

• Organization;

• Thoroughness with which each points is developed;

• Structure of paragraphs;

• Variety of sentences;

• Style and clarity;

• Overall appearance and readability.

The Writing Process

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Form, Flow, & Structure


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1. Tell a Story


• Good legal writing is good writing, period.

• Every brief should tell a compelling story, one that has:• A beginning, a middle, and an end;

• Clearly-defined characters;

• A strong plot; and

• A central conflict that needs resolving.

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2. Make a Good First Impression


• Lead with a strong statement of the case: one that is fresh, clearly focused, and has a forward thrust.

• Remember that this will be your first, and perhaps only, chance to impress the Judge.

• The opening sets the stage for the rest of the brief, and needs to compel the Judge to keep reading.

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Not This:

Appellants John and Joan Smith petition for an appeal from the final judgment, order, and decree entered by the District Court for the District of Northern California in the above-captioned matter on December 15, 2010, wherein the lower court found Appellants guilty of defaming Appellee Steven H. Reynolds, principal of Sacramento High School, after determining that Appellee was not a “public official” for purposes of the law of defamation and thus need not establish that Appellants had acted with “actual malice” (i.e., reckless disregard of the truth) when making the allegedly defamatory comments which are the subject of the instant lawsuit.

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But This:

The issue at hand — whether a high school principal is a “public official” under defamation law — is one of first impression in this Circuit. The district court found that a principal can never be a public official, and thus need not prove “actual malice” to establish defamation. But other courts looking at this issue have reached the opposite conclusion, reasoning that high school principals are government employees holding positions of significant influence in the local community. This Court should align itself with the weight of authority in other jurisdictions and reverse the decision of the court below.

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3. Consider Opening with a Concise Statement of Issues


• A concise statement of the exact points in issue; and

• A concluding question.

In The Elements of Legal Style, Bryan Garner advocates opening with a “deep issue,” consisting of:

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4. Use Simple, Direct Prose


• Keep your prose simple and readable;

• Resist the temptation to decorate your brief with rhetorical flourishes and fancy vocabulary;

• Grandstanding grandiloquence will serve only to distract, rather than impress, the Judge.

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5. Close Strongly


• Just as the opening is important, so too is the conclusion;

• Avoid formulaic closings (e.g., “For the foregoing reasons...”);

• Summarize your main points concisely and clearly.

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Not This:For all the reasons discussed herein, Defendants respectfully request that the Court grant the instant motion to transfer this patent infringement case to the Northern District of Georgia.

But This:This patent action is substantially identical to a case that has been vigorously litigated in Georgia for over a year. The two actions involve the same parties, the same accused products, the same witnesses, and two virtually identical patents. Transfer to Georgia will permit the two cases to be consolidated, thereby promoting judicial efficiency, minimizing witness inconvenience, and avoiding potentially inconsistent results.

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6. Briefer is Better

Once you’ve completed your first draft, try cutting it down by one-third. Keep only that which:

• Advances the argument;

• Fortifies the analysis; or

• Demonstrates the principles involved.


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• Have you opened and closed strongly?

• Do you transition effectively from one paragraph to the next?

• Are your thoughts structured simply and directly?

• Does your argument flow logically from point to point?


7. Check Overall Organization & Structure

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Editing 101—Choosing Your Words

Carefully


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ergo hereby/herein/herewith

aforementioned thereby/therein/therewith

aforesaid whereby/wherein

whereupon arguendo

whereas ab initio

pursuant to inter alia

with respect to in haec verba

Choosing Your Words Carefully

1. Lose the Legalese

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‘The Night Before Christmas’ in Legalese

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter "the House") a general lack of stirring by all creatures therein, including, but not limited to a mouse. A variety of foot apparel, e.g., stockings, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a.k.a. St. Nicholas a.k.a. Santa Claus (hereinafter "Claus") would arrive at sometime thereafter. The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein visions of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams. . . .

- Author Unknown


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2. Cut Compound Constructions

Compound Simpleat this point in time nowby virtue of becausefor the reason that becausefor the purpose of toin connection with aboutwith reference to aboutpursuant to underin order to toin the event that if

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2. Cut Compound Constructions(cont’d)

Compound Simpleprovided that ifprior to beforesubsequent to afterin some instances sometimesnotwithstanding the fact that

even though

the question as to whether whetherit is important to bear in mind

remember

consideration should be given to

consider

sufficient number of enough

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3. Clip Clichés

the bottom line tip of the iceberg

catch-22 situation lock, stock, and barrel

few and far between hit the nail on the head

wheat from the chaff the forest for the trees

the heart of the matter cut to the chase

apples and oranges add insult to injury

back to the drawing board pull no punches

last-ditch effort nip in the bud


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4. Reject Redundancies

cease and desist short summary

remaining balance brief synopsis

any and all final result

logical corollary grant and convey

null and void costs or expenses

truthfulness and veracity force or effect

basic fundamentals vitally necessary

free and clear full and complete


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5. Discard Dogmatisms

clearly indisputably

obviously incontestably

undoubtedly surely

plainly certainly

evidently utterly

manifestly patently

undeniably completely


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Remember, saying something is “clear” or “obvious” doesn’t make it so. On the contrary, the use of empty dogmatisms will only serve to undermine your point since it suggests—plainly and patently

—that you are puffing.


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6. Avoid Overstatement

complete fallacy specious logical absurdity baseless patently absurd groundless utterly bizarre fallacious entirely without merit borders on frivolity utterly unsupported deliberate falsehood grievously flawed woefully inadequate remarkably illogical


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7. Weed out Weasel Words

It seems At least as far as … is concerned

It would appear I would contend

It is plausible I would respectfully suggest

It might be said It is apparently the case

It should be noted I would point out

We observe at the outset It shouldn’t go unnoticed


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8. Purge Passive Voice

• In active voice, your subject is doing the action; in passive voice, your subject receives the action;

• Advantages of active voice:

• Uses fewer words;

• Avoids ambiguities about who’s doing what;

• Chronologically more sensible: actor action thing

being acted upon.


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8. Purge Passive Voice (cont’d)


Not this: But this:The case was dismissed by the court.

The court dismissed the case.

The papers have been filed by the parties.

The parties filed their papers.

This is a purely legal issue to be determined by the court.

The court determines this issue.

Plaintiff’s brief was untimely filed and thus should be disregarded by the court.

The court should disregard Plaintiff’s late-filed brief.

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9. Nip Nominalizations


Nominalization Verbissues a ruling ruledtake into consideration consideris an attempt to attemptsmade an error erredis in conformity with conformsenter into an agreement agreefile a dissenting opinion dissentfile a motion movemake an inquiry askmake reference to refer to

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“[T]he secret of good writing is to strip every sentence to its cleanest components. Every word that serves no function, every long word that could be a short word, every adverb that carries the same meaning that’s already in the verb, every passive construction that leaves the reader unsure of who is doing what—these are the thousand and one adulterants that weaken the strength of a sentence.”

William Zinnser, On Writing Well 186 (5th ed. 1994).


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Not this:

The appointment of John Smith as trustee of the debtor was made by stipulation between Plaintiff and Defendant.

But this:The parties agreed to appoint Smith as trustee.


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Editing 201—Mind Your Rhythm and

Cadence


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“The verb should carry the load of every sentence. The verb contains the action. It tells what the subject is doing. The verb is the key to the sentence. The stronger and sharper the verb, the clearer your meaning.” Tom Goldstein, Jethro Lieberman, The Lawyer’s Guide to Writing

Well 137 (1989).

Rhythm and Cadence

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1. Show Action Using Verbs

Weak Strongis in agreement with agrees withis of the opinion that believesare in favor of favorare dependent upon depend onis applicable appliesis indicative of indicatesis violative of violateswith regard to regardingmake an inquiry askmake reference to refer to

Rhythm and Cadence

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2. Minimize Sentence Length

• Limit most sentences to one thought;

• Aim for an average sentence length of about 20-25 words;

• Vary sentence length: toss in some 35-word sentences, and some 3-word sentences.

Rhythm and Cadence

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3. One Idea Per Paragraph

• Develop no more than a single idea per paragraph;

• Express that idea in a topic sentence;

• Show the progression from one idea to the next using a bridge sentence.

Rhythm and Cadence

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Examples of Bridges:*

• Connectives (further, moreover, therefore) provide an explicit connection to the preceding paragraph;

• Transitions (on the other hand, however, nonetheless) signal transition from the preceding paragraph;

• Pointing words (this, that, these) refer directly to something mentioned in the preceding paragraph;

• Echoes are words and phrases that repeat a thought or idea from the preceding paragraph.

*Adapted from Bryan A. Garner, The Elements of Legal Style 57 (2nd ed. 2002).

Rhythm and Cadence

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Document Design


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• Use section and subsection headings;

• Use short paragraphs;

• Footnote citations;

• Avoid substantive footnotes;

• Use bullet points.

Document Design

1. Break Up Dense Passages with

Ample White Space

Visual variety makes the text more appealing and less intimidating:

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2. Use Headings and Subheadings

• Helps you organize your thoughts into categories;

• Gives readers their bearing;

• Makes the text skimmable;

• Signals transitions;

• When collected into a table of contents, provides a

valuable roadmap.

Document Design

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3. Use Short Paragraphs

• Paragraph length, like sentence length, should be

varied;

• But try to keep an average paragraph length of no

more than 150 words;

• Don’t be afraid to throw in an occasional one-

sentence paragraph.

Document Design

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4. Use Bullets

• Use bullets to list items;

• They break up the monotony of the text;

• They ease the reader’s burden of moving from one

point to the next.

Document Design

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5. Streamline Quotations

• Quote selectively—don’t use them if you can summarize more simply and clearly in your own words;

• Weave quotations into the text;

• Keep quotations as short as possible; cut out the

irrelevant parts and use an ellipse;

• Use block quotations sparingly.

Document Design

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6. Other Tips

• Refer to people and companies by name rather than

plaintiffs and defendants;

• Avoid parenthetical shorthand names;

• Consider using contractions whenever natural;

• Consider footnoting citations;

• Avoid all caps;

• Keep use of artificial emphasis (italics, bold, underline) to a minimum.

Document Design

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Style Advice From Noted Writers


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“Have something to say and say it as clearly as you can. That is the only secret of style.”

Matthew Arnold (as quoted in Sir Ernest Gowers,The Complete Plain Words 12 (1954)).

Style Advice

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“[T]he great success in writing is to get language out of the way and to put your mind directly to the reader’s, so that there be no veil of words between you. If the reader is preoccupied with your words, if they court his attention or cloud his vision, to that extent is the communication imperfect.”

John Burroughs, “Style and the Man” (1902).

Style Advice

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“What’s the chief difference between a skillful writer and a mediocre one? The skillful writer is prepared to take many more pains to say it cleanly.”

John Trimble, “Writing with Style” (2nd ed. 2000).

Style Advice

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“Confusion of expression usually results from confusion of conception. The act of writing can help clarify one’s thoughts. However, one should spare the reader having to repeat one’s own extrication from confusion. The object is to be clear, not to show how hard it was to be so.”

Geoffrey C. Hazard, Jr., (1987) (quoted in Tom Goldstein, The Lawyer’s Guide to Writing Well 48 (1989)).

Style Advice

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“When style suffers—because of poor organization, sloppy paragraphing, clumsy rhythms, thoughtless jangles, or other befogging lapses—the content also suffers. When the style is good, the content benefits.”

Bryan A. Garner, The Elements of Legal Style 4 (2nd ed. 2002).

Style Advice

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• Garner, Bryan A., The Elements of Legal Style (2nd ed. 2002).

• Garner, Bryan A., Legal Writing In Plain English (2001).

• Scalia & Garner, Making Your Case (2008).

• Strunk & White,The Elements of Style (4th ed. 2000).

• Trimble, John R., Writing with Style (2nd ed. 2000).

• Wydick, Richard C., Plain English for Lawyers (5th Ed. 2005).

• Zinnser, William, On Writing Well (5th ed. 1994).

Select Bibliography

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• http://www.lwiononlin.org/ — Link to the Legal Writing Institute, which posts useful articles on legal writing;

• http://raymondpward.typepad.com/newlegalwriter/ — Blog about legal writing;

• http://www.plainlanguagenetwork.org/Legal/index.html — Repository of useful articles on legal writing;

• http://lawprose.org/interviews/interviews.php — Law Prose website, which houses dozens of videos Bryan Garner has

taped with judges and professional writers on the topic of legal

writing

Additional Resources

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The End


Legal Writing Presentation 2011

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