7 Tips for Better Legal WritingHow to ensure your writing does not hurt your client’s case (and your reputation)

Smokeball: Less Stress. More Success.

ABOUT ME

• Josh Taylor, Attorney & Legal Content Marketing Manager,

Smokeball Inc.

• B.A. and B.M., Univ. of Connecticut, Honors Scholar

• J.D., Washington Univ. in St. Louis, cum laude

• Thompson Coburn Research Fellow

• Senior Editor, Wash U. L. Rev.

• Assistant Law Clerk, U.S. District Court for the E.D. Missouri

• Litigation Associate at large firm in New Haven, Connecticut

IMPORTANCE OF THIS TOPIC

“Supervisors, colleagues, employees, clients, partners, and anyone else you

communicate with will form an opinion of you from your writing. If it’s artless and

sloppy, they may assume your thinking is the same. . . . Writing well is a big deal.”

BRYAN A. GARNER, HBR GUIDE TO BETTER BUSINESS WRITING xv (2012)

(emphasis in original)

IMPORTANCE OF THIS TOPIC

• Kuzmin v. Thermaflo, Inc., Nos. 2:07-cv-00554-TJW, 2:08-cv-0031-TJW-CE, 2009

WL 1421173, at *2 n. 6 (E.D. Tex. May 20, 2009)

• “As a preliminary matter, the Court notes that counsel’s brief is poorly written, replete

with improper spelling and bad formatting. By submitting a poorly written brief, the

attorney fails the Court as well as the client.”

• Henderson v. State of Mississippi, 445 So. 2d 1364, 1367 (Miss. 1984)

• Due to poor grammar, defendant was able to argue he was not the subject of the

allegations.

• “A perceptive English grammarian would conclude that it is ‘the store building there

situated[]’ which is charged with the burglary. . . . His point is merely that the

indictment does not charge that he did the breaking and entering. Were this a Court of

nine English teachers, Henderson no doubt would prevail.”

IMPORTANCE OF THIS TOPIC

• Ethical Obligations

• ABA Model Rule 1.1 Competence

• A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

• ABA Model Rule 3.3 Candor Toward The Tribunal

• “Rule 3.4 of the Rules of Professional Conduct states that a lawyer may not ‘knowingly disobey . . . an obligation under the rules of a tribunal.’ Clever use of word processing features can help squeeze extra space for counsel’s argument. But again, there is a line between using writing and formatting techniques to maximize argument length and using those techniques to violate the rules of the court.”

• Judge Richard Dietz, Ethics in Appellate Practice and Legal Writing (2016), https://dcoba.memberclicks.net/assets/CLE2016/Materials/4%20ethics%20in%20appeals%20and%20legal%20writing.pdf

• Sambrano v. Mabus, 663 F.3d 879, 881-82 (7th Cir. 2011) (Easterbrook, C.J.)

• Court ordered lawyer who “massacred” appeal to show cause: “His conduct in this case implies that Joaquin is not competent to protect the interests of litigants in the federal courts. In other recent cases we have ordered lawyers whose ineptitude injured (or may have injured) their own clients to show cause why they should not be suspended from practice or disbarred. That step is appropriate here too. Judges are better able than clients to separate competent from bungling attorneys, and we have a duty to ensure the maintenance of professional standards by members of our bar.”

THE 7 TIPS

1. Know (and Remember) Your Audience(s)

2. Organize Everything

3. Be Short and Sweet

4. Use Precedent Properly

5. Shore-up Your Grammar, Style, and Bluebooking

6. Proofread As You Write and After You Write

7. Utilize Technology to Reduce Error

1. KNOW (AND REMEMBER) YOUR AUDIENCE(S)

THE JUDGE(S)

• Most obvious audience to your submissions – main focus of your persuasion

• If you make writing “slip-ups” judges will “typically think less of you as a writer.

And by extension, as an advocate.”

• “[Y]our judicial readers are impatient, fickle, and uncharitable. Writing for them is

entirely different from writing for your mother, who would likely be cheering you

on, beaming with pride, and asking you to read it aloud again. Your judicial reader

isn’t your mother.”

• BRYAN A. GARNER, THE WINNING BRIEF 6 (3d ed. 2014)

COURT CLERKS

• The less-obvious decisionmaker and gatekeeper in chambers - write for them,

too!

• Don’t give a know-it-all who just graduated law school and Law Review fodder to

discount your arguments.

• Bad writing “improperly shift[s] the burden of attorney work to court personnel.”

• Heidi K. Brown, Breaking Bad Briefs, 41 J. LEGAL PROF. 259, 271 (2017)

OPPOSING COUNSEL

• Don’t give the other side things to point out that indicate incompetence or sloppiness.

• Write so that opposing counsel has very little to argue- leave them grasping at straws.

• More on this in section 4 (Using Precedent Properly)

• Embarrassing writing mistakes are the lowest-hanging fruit. Make opposing counsel

work harder to combat your submission!

• *Anecdote Alert*: Marine insurance case where opposing counsel had obviously re-used a

complaint. In Answer, we footnoted and pointed out to the judge that counsel had the

wrong company names included in portions of the Complaint. Counsel was embarrassed

and soon after settled well within our given limits.

2. ORGANIZE EVERYTHING

ORGANIZE EVERYTHING

• Materials

• Ensure you have a method of pre-writing

• Binders, foldering, indexing, highlighting, note-taking

• Outlining

• The Flowers Paradigm

• Dr. Betty S. Flowers: Former Dir., Johnson Library; Emeritus Professor of English at UT Austin

• Madman – Architect – Carpenter – Judge

• Nonlinear Outlining & Whirlybirds

• Garner, The Winning Brief: “A whirlybird is a whorl of ideas resulting from the madman-architect

collaboration.”

• Headings: Good headings show you've thought out your arguments well in advance-

Garner

3. BE SHORT AND SWEET

BE SHORT AND SWEET

• Ramos-Barrientos v. Bland, No. 606CV089, 2008 WL 474426 (S.D. Ga., Feb. 19, 2008)

• “Subjects . . . should not have to forage for a verb. . . . Suffice it to say that ‘Rope-A-Dope’ is for the boxing ring, not here.”

• Vandeventer v. Wabash Nat’l Corp., 893 F. Supp. 827 (N.D. Ind. 1995)

• Counsel ordered to restart briefing processbecause defendant’s brief was “overly long” and “unfocused”

• Fed. R. Civ. P. 8(a): short and plain statement requirement

• 5C Wright & Miller, Federal Practice and Procedure § 1281 at 709 (2007): “Unnecessary prolixity in a pleading places an unjustified burden on the district judge and the party who must respond to it because they are forced to ferret out the relevant material from a mass of verbiage.”

• “[S]hun[] puffed-up, legalistic language. Make your points and ask for your relief in a blunt, straightforward manner.”

• ANTONIN SCALIA & BRYAN A. GARNER, MAKING

YOUR CASE: THE ART OF PERSUADING JUDGES

107-08 (2008)

• There’s no need to use every word or page you’re allowed to use. If you make your points in less, let the extra allowance go.

4. USE PRECEDENT PROPERLY

USE PRECEDENT PROPERLY

• Heidi Brown, Breaking Bad Briefs: judges get mad if precedent is used wrongly (don’t try to pull the wool)

• Cite and quote good cases accurately and with proper introductory signals. See ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING

JUDGES 123 (2008).

• “The impression you want to make on the court—that you’re knowledgeable and even expert—will be compromised by any misdescription that opposing counsel brings to the court’s attention.” Id.

• Misused precedent is ammunition for opposing counsel to discredit you and your work.

5. SHORE-UP YOUR GRAMMER, STYLE,AND BLUEBOOKING

GRAMMAR, STYLE, & BLUEBOOKING

• As an operator within a set of standards and rules (the legal system), prove to the

decision-makers that you can operate within a system of standards and rules! Poor

technical writing can have readers mistrust you and doubt your intelligence level.

• Avoid the urge to let these things be the first to fall by the wayside in a time

crunch! Don’t get sic’ed!

GRAMMAR FAVORITESSee generally BRYAN A. GARNER, MODERN ENGLISH USAGE (4th ed. 2016)

• Subject-Verb Agreement

• “Its history of domination by neighboring countries sharpen a stubborn independence.” NYT 1994 (should read “sharpens”)

• Misplaced “only”

• Put modifiers as close as possible to the things they are modifying.

• Only John hit Peter in the nose. / John hit only Peter in the nose. / John hit Peter only in the nose. / John only hit Peter in the nose.

• Serial (Oxford) Comma

• Tense Agreement

• “Mr. Noriega limited his own movements even further, avoiding windows and

even the shaded palm court out of fear that snipers will gun him down.” WSJ 1990

(should read “would”)

• “Its” and “it’s”

STYLE FAVORITESSee generally THE CHICAGO MANUAL OF STYLE (17th ed. 2017)

• Numerals vs. Words

• Spell out zero through one hundred and certain round multiples of those numbers. (Rule 9.2)

• Always spell out a number when it begins a sentence. (Rule 9.5)

• Ordinals should not be superscripted. (Rule 9.6)

• Non-English Words

• Use italics for isolated words or phrases not found in a standard English dictionary (Latin, French). (Rule 11.3)

• Quotations

• Must be meticulously accurate and checked against original text (Rule 13.6)

• Run in vs. block: depends on length usually (Rule 13.10); fifty words or more must be blocked (B12.2)

• Must be logically and grammatically assimilated with tense integration (Rules 13.11, 13.12); brackets can be used to make this happen (Rule 13.21, BB Rule 5.2)

• Quotes within quotes interchange double and single (Rule 13.30)

• “Imagine Bart’s surprise, dear reader, when Emma turned to him and said, contemptuously, ‘What “promise”?’”

• i.e. vs. e.g.

• id est (“that is”): to explain or clarify

• exempli gratia (“for example”): to provide example(s)

• Always use with commas (e.g., this example)!

BLUEBOOK FAVORITES

• Introductory signals (BB Rule 1.2)- use them properly and in

the correct order (strongest to weakest, then contrary)

• Parenthetical information (BB Rule 1.5)- keep it

grammatically correct!

• Abbreviations (BB Rule 6, Table 2)

• Typeface accuracy (Small caps? Italics? Underlined?)- don’t

let your typeface leak!

• See, e.g., Taylor v. Smith, 500 F. Supp. 2d 125 (D. Conn. 1988)

6. PROOFREAD AS AND AFTERYOU WRITE

PROOFREAD AS AND AFTER YOU WRITE

• “Verify your quotations and citations as you enter them into a draft. Ensure that

someone other than the researcher verifies them a second time. Ensure that others

read the brief—not just those who collaborated in producing it. You yourself proofread

it two more times than you think necessary.” ANTONIN SCALIA & BRYAN A. GARNER, MAKING

YOUR CASE: THE ART OF PERSUADING JUDGES 125 (2008).

• Allow the “judge” in the Flowers’ Paradigm to creep in after you finish any sentence. Be critical of what

you last wrote.

• Let your writing cool overnight, and come back to it with fresh eyes, re-reading what you’ve previously

written before you continue.

• Incentivize your staff tasked with proofreading to find your mistakes.

7. USE TECHNOLOGY TOREDUCE ERRORS

WORD TOOLS

• Spellcheck/Proofing

• Table of Contents creator

• Ensures accurate pagination and wording from your document

• Track Changes for proofing

• Collaborative

• Makes you consider each “suggested” change carefully

• Smart Lookup

• Right click on word to pull definition and know exactly how/if to use the word

• Format Painter

• Easily re-format lists, headings, numbering, lettering

DOCUMENT AUTOMATION

• Once you have a document (or email) that

works, automate it to reduce errors in

reproducing over and over (Practice

Management Software with automation

capabilities)

• Any automation program worth its salt should

change pronouns for you automatically.

• A properly-automated document is a great

starting point, but you still need to proofread

several times!

DOCUMENT/FILE MANAGEMENT

• Practice Management Software that manages versions, drafts, history, and tasks as those relate to drafting court submissions can make your life immeasurably easier.

• Everything relating to a filing in one place

• Version histories for reviewing past drafts

• Ability to pass a draft around without things getting lost/mixed up

• Tracking who did what to a draft filing and when

• Ability to search entire database of documents

CLOSING THOUGHTS (FROM FAMOUS FOLKS)

“But it’s writing, damn it, not washing the car or putting on eyeliner. If you can take it seriously, we

can do business. If you can’t or won’t, it’s time for you to close the book and do something else.

Wash the car, maybe.”

–Stephen King

“A man’s grammar, like Caesar’s wife, should not only be pure, but above suspicion of impurity.”

–Edgar Allan Poe

“We are all apprentices in a craft where no one ever becomes a master.”

–Ernest Hemingway

QUESTIONS?

Contact Us!

josh.taylor@smokeball.com

info@smokeball.com

(855) 668-3206

www.smokeball.com

Thank You!