March 2, 2011 – “Do not give anything to a lawyer’s clerk to write, for they use a legal hand that Satan himself will not understand.” – Cervantes
The written word remains one of the most important tools of the legal profession. Written words are used to advocate, inform, persuade, and instruct. Lawyers often write more and under unique constraints than many other professionals. They write under the pressure of relentless deadlines and most often with the need to communicate successfully to a very demanding audience: judges and other lawyers. To achieve effectiveness lawyers should use a consistent model for structuring their analysis or argument, and then a standard method for drafting and editing.
Organize your writing
Organization is the key to successful legal writing. Create a roadmap for your writing by using visual clues to guide the reader. Use headings and subheadings to break up blocks of text. Use short sentences. If a sentence is going to be more than three typed lines, break it up. If a paragraph is going to fill a page, break it up. Introduce each paragraph with a topic sentence and limit each paragraph to that topic. Sum up your topic and the paragraph with a concluding sentence. Using simple organizational structure will guide the reader through your text and promote readability.
Remember your audience
Every word you write should be tailored to the needs and expectations of your readers. As a lawyer, your readers are frequently busy judges, judges’ law clerks, other attorneys, and clients. They want your analysis and/or argument to define the problem clearly, and specifically ask them for action. Use a simple standard structure of issue, rule, application, and conclusion to organize your writing. This method of presenting your legal analyses and arguments helps the busy reader quickly focus on the issues and understand your position.
Eliminate any legalese
Using specialized legal phrases and jargon (legalese) can make your writing sound abstract, stilted, and archaic. Examples include words such as aforementioned, herewith, heretofore, and wherein. Substitute abstract words with simple, concrete terms. For example, instead of “I am in receipt of your correspondence,” a better option would be “I received your letter.”
Use action words
Action words make your writing more powerful and dynamic. For example instead of “The defendant was not truthful,” use “The defendant lied.” Instead of “The witness quickly came into the courtroom,” say “The witness bolted into the courtroom.” Verbs push a sentence forward and give it momentum. In contrast, “nominalizations” (nouns created from verbs) burden a sentence with abstractions. These need to be edited out by finding the verbs they bury, and using those verbs instead. For example “be in conformity with” should be replaced with “conform.” As another example, “make amendments to” should be replaced with “amend.” Nominalizations create wordiness because they require articles and prepositions to prop them up. Using a strong verb not only improves the impact of your sentence but needs fewer words to do so.
Avoid the passive voice
Passive voice disguises responsibility for an act by eliminating the subject of the verb. Active voice, on the other hand, tells the reader who is doing the acting and clarifies the message. For example, instead of “the filing deadline was missed,” say “plaintiff’s counsel missed the filing deadline.” Instead of “a crime was committed,” say “the defendant committed the crime.” Readers appreciate active voice sentences because they can quickly indentify the actor and the action. “The court denied the motion” is better than “It was decided that the motion would not be granted.” “Counsel argued the gun was inadmissible” is better than “It was argued by counsel that the gun was inadmissible.” Remember that active people do things; passive people have things done to them.
To quote Justice Louis Brandeis, “There is no such thing as good writing. There is only good rewriting.” Edit your writing ruthlessly, omitting unnecessary words and rewriting for clarity. Careful proofreading is particularly important in legal writing. At a minimum your writing must be clear of typographical errors, misspellings, punctuation, or grammatical errors. Having these in any written work product, especially one submitted to the court, opposing counsel, or a client can undermine your credibility as a lawyer.
Although mastering legal writing skills takes time and practice, superior writing skills are essential to success. By following a few simple rules of style and organization, we can improve the effectiveness of our writing. For help, many lawyers consult Plain English for Lawyers by Richard Wydick, Legal Writing in Plain English by Bryan Garner, and The Chicago Manual of Style, among the many options available.
About the author
Michael Moore, Lewis and Clark 1983, is a professional coach for lawyers and the founder of Moore’s Law, Milwaukee. He specializes in marketing, client development, and leadership coaching for attorneys at all levels of experience. Moore also advises law firms on strategic planning and resource optimization. He has more than 25 years’ experience in private practice, as a general counsel, in law firm management, and in legal recruiting. For more information, visit www.moores-law.com.
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