Posted on: 5/11/2012
Daniel E. Cummins, Foley Cognetti Comerford Cimini & Cummins
View Latest Articles
Some attorneys are
courtroom attorneys, some attorneys are pre-trial litigation attorneys, but all
attorneys read and write. And, like it or not, a lawyer's written product is a
reflection of part of his or her worth as an attorney.
It has been said, by no
less an authority on legal writing than Justice Antonin Scalia, that the art of
legal writing involves the ability to "make a complex case simple, not a
simple case complex." Sometimes that is easier said than done.
What follows are seven
habits exhibited by highly effective legal writers. Developing these habits may
not make you the best legal writer, but could serve to improve your writing
ability and raise to a new level the written product you create day in and day
out.
Take pride in your
writing
Good legal writers take
pride in their writing, care about their end product, and desire that the
position put forth in the writing be accepted. If the writer lacks any of these
feelings about the written task before them, it will surely be evidenced in the
writing.
In other words, if you
don't care about your written product, why should anyone else care to read it?
And so, taking pride in
your written submissions will naturally result in a better letter or brief. It
might even be the difference between winning or losing on the issue presented.
Write for your audience
The audience of your
writings will greatly appreciate it if your tone and format is directed to
their interests and needs. Writing for your audience lets your audience know
that you are interested in securing their understanding and agreement with the
proposition and argument that you are putting forth. Again, if you are not
interested in pleasing your audience, why should they be interested in paying
any great attention to what you have to say?
If you are writing to
the court, it pays to consult with the local rules of that particular court and
conform your submission to comply with those rules. While this task may be
tedious (and sometimes ridiculously so), by complying fully with these local
rules, you bring your submission in compliance with most of the other writings
this court sees on a daily basis.
By being compliant in
this regard, you show respect to the court which will be appreciated, even if
unconsciously, and you avoid having a judge being distracted from your argument
by his or her irritation with your disobedience of the local rules of court.
In his article
"Legal Writing 201 (a highly recommended read -
www.plainlanguagenetwork.org/legal/legalwriting.pdf (2002)), former Ohio Court
of Appeal Judge Mark P. Painter emphasizes the need to consider one's audience.
Judge Painter notes that
if you are faced with a judge who is well-versed in law, it may be advisable to
focus on the application of facts to that law in the brief. Conversely, where,
for example, you have a judge in a civil matter who normally presides over the
criminal court docket, it may benefit your client to initially focus your brief
on (respectfully) educating the judge on the basic law of the case.
When writing to the
audience of a client or fellow lawyer, you may want to take a less formal, but
still somewhat formal tone, in your correspondence. Perhaps you could write
these types of letters in a somewhat more conversational fashion with a
matter-of-fact fashion and delete excess verbiage wherever possible.
Simplify the substance
Stripped down to its
core, the object of legal writing is to communicate a position and persuade
another to accept it. If the reader does not understand your position, he or
she is not likely to accept it. Hence, the need to simplify the facts of the
matter.
It is recommended that
you begin brief writing with an outline in place, preferably in writing but, at
the very least, in your mind's eye. An outline can help keep you focused and
prevent you from going off on tangents.
In setting forth the
facts in a brief it pays to be succinct—report only those facts you will apply
the law to and eradicate extraneous facts that are not necessary to further the
reader's understanding of the case.
When describing the
parties, use labels with the parties names to help the reader to keep things
straight ("the Plaintiff, Joe Smith," "the
Defendant-driver," "the manufacturer"). Avoid the overuse of
pronouns (he, she, his, her, they) as things can get lost in the reader's mind
with too many generic references to the parties.
While it is usually the
preferred method to explain the facts in chronological fashion, try to avoid
being too specific by way of using date after date in successive sentences.
Most dates are unimportant and usually only serve to muddy the waters in the
reader's mind if they are read at all.
In terms of the Question
Presented, which judges, particularly in the appellate arena, view as an
important part of the brief, it again pays to be succinct. Always begin the
question with language draws the judge in your direction ("Whether the
motion for summary judgment filed by the Defendant, Jane Smith, should be granted
where…." "Whether the trial court erred where….").
Be sure to particularize
the Question Presented by inserting facts from the case at hand—but only those
central facts necessary for the court to rule in your favor.
When you get into the
explanation of the applicable law, indented block quotes should only be used
sparingly as most readers skim over them anyway. If a block quote is necessary,
it may pay to foreshadow the law cited to the reader in the sentences preceding
the block quote. Also work in the law noted in the block quote in the sentences
immediately following the quote in case the reader only skimmed the indented
language.
As you turn to applying
the law to the facts of your case, never use the word "clearly" – if
the matter was clear, you wouldn't be having to write a legal brief on it.
Using this hyperbole only serves to signal to the reader that you are not as
confident in the position set forth in the sentence as you would like to be.
Be sure to end your
brief, in the Conclusion section, by concisely and precisely stating what you
want court to do. Use a final paragraph or two in the conclusion to state that
request in no uncertain terms. One way to do this is by repeating a slightly
different form of the Question Presented in the Conclusion (in other words,
don't simply cut and paste—put some creative, persuasive effort into the final
words of your brief).
Be simplistic in form
It almost goes without
saying that, due to the need to simplify matters, legal writing requires short
paragraphs made up of short sentences.
To shorten sentences,
delete extraneous words. But don't delete all descriptive words such that your
brief becomes a dry, choppy document devoid of feeling or persuasive effect.
Another way to shorten
sentences is to ask yourself if that comma in that long sentence can be
replaced with a period. Usually it can and the reader will benefit from not
having to wade through and re-read a run-on sentence to understand the multiple
points contained therein.
To shorten paragraphs,
make sure you have a good topic sentence and that all following sentences stay
within that topic. If more than one topic is discussed in the paragraph break
it down into separate paragraphs. When you do so, however, remember to make
sure there is a good transition sentence at the end of the paragraph in order
to create a good flow through all of the paragraphs that builds like a
crescendo towards the desired result.
Another stylistic form
to emphasize is the creation of persuasive headings and sub-headings to guide
the reader through your brief to the desired destination which is the
acceptance of your position.
Think of the headings as
a set of Mapquest directions. Each separate step in Mapquest directions are set
out in a concise, readily understandable fashion.
Similarly, each heading
in a brief should express a single idea, or step, in the direction of the court
ruling desired. When the brief is finished, the judge should be able to read
the headings only and see a progression of points that build up directly to fully
support your position.
In terms of citations,
if there are numerous citations to the record peppering the pages of the brief,
they can be moved down to become footnotes to avoid distracting the reader.
While there are some
legal writing experts who also advocate placing legal citations in footnotes as
opposed to keeping them in the body of the brief, that concept seems to border
on being sacrilegious to the reader of briefs. Legal points made in court
submissions are given their levels of strength by the citations to statutes,
cases, or secondary sources that follow the sentence. To remove these citations
from the end of sentences in briefs and replace them with a little number for a
footnote would seem to strip these points of most of their impact.
Sprinkle in a dash of
you
Day in and day out,
judges peruse arid legal briefs filled principles of law, riddled with
citations, and devoid of any creative spirit or touch. Lawyers spend their days
reading terse letters and long legal opinions. Therefore, it might not hurt
your position with judges and lawyers to sprinkle in a dash of your personality
into the briefs you file with the court and in the correspondence you issue to
attorneys and clients.
Adding some salt and
pepper in the form of your personality as one of the last ingredients of the
recipe for your brief, could serve to set your position apart from not only the
other briefs the court reads all day but, in particular, your opponent's brief
in the case at hand. For example, while it usually pays to exactly quote the
central legal principles or holdings in support of one's position with a
supporting citation(s) the first time it appears in a brief, perhaps the
subsequent references to those principles of law or holdings in a brief can be
rephrased to how you might explain them in your own everyday conversation.
So when you edit your
brief, it may pay to ask yourself with certain paragraphs: "That's how
they say it…how would I say it?"
Then take how you might
actually say it verbally and work that into the brief as may be appropriate.
This technique may assist you in writing in a more urgent, active voice as
opposed to a weak, passive voice.
One thing to avoid in
this regard, however, is the use of contractions (isn't, doesn't, etc.) in
briefs as they generally ain't considered to be inappropriate in legal writing.
By writing your brief in
a manner that incorporates your normal manner of speaking, you give your
writing a better flow. This may consequently further the reader's understanding
of your position.
Writing as you speak may
also give your brief a more confident and agreeable tone as opposed to a
written submission that takes on airs, is pompous-sounding (lawyer-sounding),
and devoid of feeling.
Another important
benefit of incorporating how you speak into your brief is that, when you make
your oral argument to the court, you will sound consistent with your brief
which the judge has presumably already read. The consistent sound and flow of
both your brief and oral argument will naturally lend more credence to your
position.
Review with a lay person
One way to ensure that
your brief sounds as you speak is to have it reviewed by a lay person if
possible. The sound effects elicited by the lay person reader of your brief
should be a good barometer of the clarity of its message. Every place where
your lay person reader says, "Huh?" should be reworded until the
reader can say, "Ohhhh."
Lay persons are also
good at picking up run-on sentences or fancy words that attorneys are famous
for putting into their briefs and letters. While such sentences and words may
initially appear to be good to the attorney writing the brief, usually a
pointing out of these problems with the brief by the lay person can lead to a
correction and a better finished product.
If a lay person is not
available to review the draft, it never hurts to have a fellow lawyer in the
office give the writing a once over. A fresh set of eyes glancing over a draft
always creates a chance for typos to be discovered and corrected
Edit….then edit again...
Supreme Court Justice
Louis Brandeis once said, "There is no great writing, only great
re-writing."
When time permits, and
you should make time permit, it pays to write a good first draft of a brief
well ahead of time so you can put it aside, walk away from it, and come back to
it later with a fresh eye. Repeated editing will obviously uncover typos which,
if left in, could detract from one's argument and show a lack of full interest
on the part of the writer.
The repeated editing of
the document can also sometimes lead to the discovery of new angles, a clearer
analysis of a legal point, or even something as simple as a better word to
complete a sentence. As Mark Twain once said, "The difference between the
right word and the almost right word is the difference between lightning and a
lightning bug." A thesaurus can be found at your fingertips at www.thesaurus.com.
Also, at least one
run-through in the editing process should be focused on reading the citations
only for typos and proper format. Having a wrong volume number or page number
in one citation can call into question all of your citations.
Another edit should be
focused solely on the headings themselves for typos and to ensure they flow in
a persuasive fashion in favor of the argument presented and repeatedly towards
the conclusion desired.
It may also be advisable
to conclude your editing by making one last search for decisions on point
handed down by the very judge or court presiding over your matter. For what
better authority in support of your position is there than that?
Conclusion
Developing the habits of
being mindful of your audience, simplifying your writing in substance and in
form, allowing others to review your work, creatively but carefully adding a
dose of personality to the writing, and editing, editing, editing, may all
serve to improve one's legal writing.
Other excellent
resources to consider reading for more on some of the above themes as well as
other legal writing tips include The Winning Brief (Second Ed. 2004) by
Bryan A. Garner and Making Your Case: The Art of Persuading Judges, by
Justice Antonin Scalia and Bryan A. Garner (2008).
Yet, no matter how many
resources on legal writing one consults, it may not be until an attorney
actually takes pride in his or her own written product, and acknowledges the
reflection that that product has on one's reputation as a lawyer, before
improvement in this regard can truly be realized.
Daniel E. Cummins is a partner at the firm of Foley, Cognetti,
Comerford, Cimini & Cummins in Scranton, PA with 15 years of insurance
defense experience. Attorney Cummins has focused his practice on defending
motor vehicle accident liability cases and UIM/UM arbitration matters along
with premises liability and products liability cases. Mr. Cummins is also
routinely summoned by his clients to handle matters involving insurance
coverage questions and insurance subrogation claims. He can be reached at dancummins@comcast.net.