Survival Guide for New Attorneys 9

> Concision is a mark ofconfidence, a hallmark ofthe best legal writing

> Draft early, and edit withoutmercy

> Excess verbiage makesreaders work too hard to distill concepts

Sharpening Your LegalWriting Skills

As Benjamin Franklin wrote inPoor Richards Almanac, Youmay delay, but Time will not.Lawyers often write more and

under greater time constraints than manyjournalists, novelists, and other profession-als. They write under the pressure of relent-less deadlines and the need to communi-cate successfully to the most demandingand impatient of all readersjudges andother lawyers. To survive, lawyers need aconsistent, efficient plan for structuring theanalysis or argument, and then drafting andediting. They need to understand writing asa staged process similar to building ahouse.

Legal writing is a practical tool depend-ent on major principles and minor rules. Theprinciples, which must be embraced and fol-lowed in every memorandum or brief, can bereduced to four: constantly consider thereader, point first at every level, make theclients story compelling, and combine thefive types of law.

Constantly consider the reader. Yourreaders are busy judges, judges law clerks,and supervising attorneys in your firm. Theywant the goods: analysis and argument thatmeet their expectations for normal legalwriting. Remember IRAC? Virtually every first-year law student learns the mantra of Issue,Rule, Application, and Conclusion because itteaches the normal syllogistic structure oflegal analysis and argument. Since virtuallyall legal analyses and arguments can bestructured with a syllogism, much legal writ-ing follows this form. Using this form todeliver the goods to a law-trained reader willmeet that busy readers expectations. So,when organizing any analysis or argument,keep readers needs constantly in mind.Whenever possible, use a syllogistic struc-ture to deliver the goods.

Point first at every level. Effective legalwriting is a pointed text.1 Begin the mem-

orandum or brief with an issue statement,whether titled Introduction or PreliminaryStatement. This section provides a succinctoverview that sharply focuses the disposi-tive issues in the same order as the analysisor argument to come. The sections that fol-low then develop each major issue or con-tention.

Just as each major section of the analysisor argument delivers the goods up front,every part within the sectionparagraphand sentencealso should make the pointfirst. Law-trained readers expect point firstat every level. This principle assures readersfrom the outset the memo or brief will beeasy to parse and understand after the firstreading.

Make the clients story compelling.2

Law school is mostly about the law; lawpractice is mostly about the facts. Since thefacts of each case are unique, tell yourclients story. Always include a Statement ofFacts and, depending on the case, some-times provide a Procedural History. Factspersuade and form the basis for effectivestorytelling. Cognitive psychologists haveshown experimentally that most people donot think effectively in abstract generalpropositions. Rather, most people under-stand concepts best when they areexpressed in the form of stories.3

Few lawyers have ever been taught howto tell a compelling story; a few tips willmake a considerable difference. First, find atheme, a proposition about the nature andmeaning of what happened. Think of thetheme in Shakespeares play, Macbeth:

An ambitious general, pressured byhis more ambitious wife, assassi-nates the king but wears the crown

only briefly as he is haunted and cor-nered by his own violent death.Distill the theme of your clients story,

and build the story around it. Since the rules

prohibit explicit arguments or conclusorylanguage, you must arrange the facts art-fully. Describe them so readers draw infer-ences favorable to your client. Artfularrangement requires four decisions: Whosepoint of view? Where to begin? Where toend? Which facts to emphasize, which todownplay, and which nonfacts4 toinclude? Making those decisions con-

Scott Wood is a clinical professor at Loyola Law School, Los Angeles. He offers writ-ing workshops for litigators and one-on-one consultations.

By Scott Wood

P R A C T I C E B A S I C S

10 Survival Guide for New Attorneys

sciously and strategically will produce a per-suasive, compelling drama rather than amundane chronology. In effect, an artfulStatement of Fact is a powerful argumentbecause it moves readers emotionally aswell as logically to see the case your clientsway.

Combine the five types of law. One dif-ference between novices and experiencedlawyers is the latter habitually combine twoor more of the five types of law: text, intent,case precedent, equity, and public policy.5

The five types provide a checklist for lawyerswho are drafting briefs. Analysis or argu-ment based on text considers the plainmeaning of the constitution, statute, orother legal document. Intent is based on thepurpose of the text, the legislative intent, or,in a contract, the mutual intent of the par-ties. Case precedent, the most commontype, provides the rule as illustrated, whichis either analogized or distinguished. Equityis a broad type including tradition, morality,and fundamental fairness. Finally, publicpolicy is based on a prediction about socialeffects, an analysis or argument about howthe law will affect the public.

Each of the five types provides a majorpremise for a syllogistic analysis or argu-ment. In the context of trial court litigation,the five types form a hierarchy, with text,intent, and case precedent controlling.Therefore, if the statutory text is directly onpoint or the leading case precedent applies,the trial court is bound to decide accord-ingly. Still, the best advocates combinearguments based on equity or public policyfor maximum persuasive impact. Similarly, acomprehensive analysis includes two ormore types of law.

If you dont keep it awfully simple, itwill become simply awful.6 The practicaltools for clear and concise legal writing alsorely on numerous rules, but most depend onthe context. Some rules are points aboutstyle. Others pertain to grammar or punctua-tion. And some are techniques for format-ting and organizing. Remembering a fewgeneral rules can invariably produce clearwriting that is easy to read.

Certain grammar and syntax rules haveparticular importance for legal writing, butsince even these few cannot be adequatelytaught in a short article, study one of themany excellent books on this subject.7

One of the most useful is Richard Wydicksfamous treatise, Plain English for Lawyers.8

A few years ago, a lawyer said that Wydicksbook got him through the bar exam. He hadfailed the essay part the first time, so during

his next preparation, he worked throughevery exercise in Plain English for Lawyers.His writing skills made a quantum leap.Yours will, too.

Keep sentences short. Concision is amark of confidence, a hallmark of the bestlegal writing, and many judges wholeheart-edly agree. Keep it short, not just sentences,which should average about 25 words, butalso paragraphs, which should measureabout half a page.

Prefer the active voice. Readers appreci-ate active voice sentences where they canquickly find the actor and the action withouthacking through a thicket of clauses andqualifiers: The court denied the motionrather than It was decided that the motionwould not be granted. Counsel argued thegun was inadmissible rather than It wasargued by counsel that the gun was inadmis-sible. Remember the structure this way:Active people do things; passive peoplehave things done to them.

Generally, avoid the passive voicebecause it is wordy and harder to read.However, sometimes the passive is useful,e.g., to hide the actor (Mistakes weremade) or when the actor is irrelevant (TheSummons was served on defendant lastTuesday). But prefer the active voicebecause [t]he difference between an activeverb style and a passive verb stylein clarityand vigoris the difference between life anddeath for a writer.9

Use verbs, not nominalizations. Verbsare the most important of all your tools. Theypush the sentence forward and give itmomentum.10 In contrast, nominaliza-tionsnouns created from verbsbog downthe sentence with abstractions. Thesewords, all-too-familiar bureaucratic lard, arethe words ending with -tion, -ancy, -ment, or-ence. Avoid them. Edit them out by findingthe verbs they bury, and use those verbs todrive the sentence forward:

Conform, not be in conformity with, Discuss, not contain a discussion of, Amend, not make amendments to, Refer, not make reference to.

Nominalizations create wordinessbecause they require articles and preposi-tions to prop them up. The strong verb notonly moves the sentence but needs fewerwords to do so.

Avoid left-handed sentences. Avoidlengthy phrases and clauses before themain subject and verb. The first few words ina sentence determine readability, butlengthy preambles provide no context andmake the reader work too hard to find the

main clause. Introduce with short phrases.Similarly, move long subordinate clausesout of the middle. Those qualifiers may beessential to precision but are better placedat the end. Keep the main subject and verbtogether.

Omit needless words. Draft early, andedit without mercy. Cut and condense byattacking flatulent words and phrases:

Unnecessary prepositions: He edited thememo with regard to omitting needlesswords.

Unnecessary pronouns: The judge saidthat it was an issue that counsel shouldaddress.

Needless to be forms: He is a man whobelieves that there is no single method foreffective editing exists.

Meaningless expressions: It should benoted that tThere are two separate agree-ments.

Any survival guide is short on long termsupport. For that, you need not only one ormore of the many fine books available onlegal writing but also something moreimportanta personal commitment toimprove your writing. With sustained effortover time, you can achieve consistent clarityand persuasive impact. Then you will notmerely survive, you will succeed.

1 FRANCIS-NOEL THOMAS & MARK TURNER, CLEAR AND SIMPLEAS THE TRUTH: WRITING CLASSIC PROSE 84-86 (1994). SeeJOSEPH M. WILLIAMS, STYLE: TOWARD CLARITY AND GRACE (1995).2 In an objective memo or law, the facts should bestated neutrally. The goal is not persuasion but an emo-tionally detached analysis.3 CHARLES TILLY, WHY? (2006). See Malcolm Gladwell,Heres Why: A Sociologist Offers an Anatomy of Expla-nations, THE NEW YORKER, Apr. 10, 2006, at 80-82. See alsoSteven L. Winter, Cognitive Dimension of the Agonbetween Legal Power and Narrative Meaning, 87 MICH.L. REV. 2225.4 Nonfacts can have potent persuasive power. Considerthe defense of a fraud case in which plaintiffs reason-able reliance is in issue. The plaintiffs nonactions showa lack of reasonable diligence. A catalog of nonfactscompels the inference that the plaintiffs reliance was notreasonable.5 WILSON HUHN, THE FIVE TYPES OF LEGAL ARGUMENT (2002)(elaborating on each type and demonstrating their interplay, particularly in crafting arguments). See alsoWilliam N. Eskridge, Jr. & Philip P. Frickey, StatutoryInterpretation as Practical Reasoning, 42 STANFORD L. REV.321 (1990).6 Fr. Tom Allender S.J., www.lifesjourney.org.7 BRYAN GARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT WITHEXERCISES (2001); MARY BARNARD RAY & JILL RAMSFIELD, LEGALWRITING: GETTING IT RIGHT AND GETTING IT WRITTEN (3d ed.2000); JANE N. RICHMOND, LEGAL WRITING: FORM & FUNCTION(2002).8 RICHARD WYDICK, PLAIN ENGLISH FOR LAWYERS (4th ed. 1998).9 WILLIAM ZINSSER, ON WRITING WELL 68 (2001).10 Id. at 69.