A Blueprint for Effective Legal Writing
Mechanical rules for structuring a logical and persuasive argument form a kind
of blueprint. Applying the blueprint helps your organization, exposes
lapses of reasoning, and provides a powerful tool for editing.
by George Vernon
BY NOW, MOST OF US CAPABLE of separating our ipses from our dixits know,
or at least have been told, to write clearly. Use short sentences and
active voice. Avoid Latin. Above all, don't sound like a lawyer.
These good rules don't get you all that far when you sit down with a
stack of cases and start to write a memorandum or brief. Short helps;
punchy helps; but to be logical and compelling requires more. Effective
legal writing builds an argument progressively from preliminary points
to a conclusion that seems inescapable.
Fortunately, there are other rules - mechanical rules - for structuring
a logical and persuasive argument. These rules comprise a kind of blueprint.
They aren't a substitute for thinking, but applying them gives your writing
a framework that assists your organization, exposes lapses in your reasoning,
and provides a powerful tool for editing.
Here is a useful blueprint. Divide the brief or memorandum into sections
that are signaled to the reader with headings and subheadings. Organize
your discussion within any section around legal propositions or rules.
Discuss one proposition per paragraph. State the proposition in the first
sentence of the paragraph. Then provide authority to support the rule
and apply the rule to your case.
Subheads
Use of subheads is a courtesy to the reader. Subheads provide focus for
the discussion that follows. Devising them requires you to divide your
subject into components and to order the components in a logical sequence.
Particularly important is an introduction of no more than a handful of
sentences. The introduction should identify the parties and the procedural
setting; succinctly state the purpose of the memorandum or brief; and
describe the most compelling reason or two supporting its conclusion.
Paragraph structure
Paragraphs are the building blocks of an argument. Generally, they should
take the following structure: rule, case, facts, and application. The
first sentence of the paragraph states a legal rule for which you want
a cited case to stand. Immediately following the rule is the name and
cite of the case that supports the rule. Follow the cite with a synopsis
of the facts of the cited case that is as brief as possible and contains
only the facts required to explicate the rule. Finally, apply the rule
of the cited case to your case with an explanation tying the cited case
and its rule to the facts and argument of your case.
Selecting the Rule of the
Case
What is the rule of a case? It is the proposition for which you want
the cited case to stand. It is your characterization or, in the current
political vernacular, your "spin" on the cited case. The rule may simply
be a black-letter statement of the law lifted from a headnote, or it may
be a much more personal or individualized characterization.
There is no single "rule" to any particular case. On most legal issues
there typically will be a line of cases that lead to a judgment for your
client, and a competing line of cases that lead to a judgment for your
opponent. Your job as an advocate is to characterize and apply this precedent
so that your case falls squarely within the helpful line, while the hurtful
line is distinguished away. Selecting and framing appropriate rules for
which the cases stand is an important tool for this job.
Characterizing a cited case by selecting and framing its rule in a manner
that advances your client's position is the function of the first sentence
of the paragraph structure described earlier. Comparing and contrasting
the facts of the cited case with those of your case are the means to establish
the validity of the rule you have chosen. This is the function of the
remainder of the paragraph.
What should you do when you have three or four cases that appear to
be identical, all supporting the same proposition? Too often, these cases
simply are tacked on to the end of a paragraph as a string cite. Reread
these cases carefully. On closer examination of their facts, you often
can find ways in which they are distinct from one another. This permits
you to use each case to support a distinct rule, which can then be stated
in the topic sentence of a separate paragraph. This can vastly increase
the persuasiveness of your argument. Instead of one vague rule supported
by four cases, you have four precise rules, each supported by a separate
case and each compelling a judgment for your client.
What should you do when you have one case that supports three or four
separate propositions? Don't lump all of the discussion of that case in
the same paragraph. Remember, your argument is structured around rules.
Discuss each rule for which the case stands in a separate paragraph with
a separate topic sentence. If you let the logical progression of your
rules be the primary structure of your argument, this may mean that the
same case is being discussed three or four different times at three or
four different locations in the brief. That is not a problem. Edit down
the factual discussion of the case as you proceed so that the reader is
learning the facts relevant to each particular proposition for which you
are using the case at the point in the brief where that proposition appears.
Use of the Blueprint in
Editing
When this blueprint is used, the first sentence of each paragraph is
a topic sentence that states a single proposition of your argument. The
proposition is then corroborated in the balance of the paragraph. By skimming
the brief, reading only the topic sentences, the reader should get the
outline or skeleton of your argument. Reading just the topic sentences
of your first draft is a strong editing tool. It enables you to order
the discussion so that the propositions stated in the topic sentences
of each paragraph build on one another and tell the story. You will often
find that simply scrambling the order of the paragraphs in your draft
yields significant improvements in the clarity. Reviewing the topic sentences
also will reveal gaps in your reasoning that need to be plugged by adding
new paragraphs.
This blueprint need not be followed slavishly for every paragraph of
every brief. However, if you depart from it, do so consciously and for
reasons that advance the clarity and strength of your presentation. Keeping
the blueprint always in mind as a model will at a minimum keep you from
starting your paragraphs with such yawners as "Another important and relevant
case is Jones v. Smith," or "A few years later the Supreme Court decided
Jones v. Smith."
Conclusion
Finally, never forget that you have an opponent who will be advancing
alternate characterizations of the same cases you are arguing. Your characterizations
must be credible and defensible. The key to this is careful study of the
facts. No two cited cases have exactly the same facts. Similarly, the
facts that gave rise to the dispute between the parties in the case you
are arguing are in some sense unique. Within reasonable limits, you have
the power to choose the facts that are important - or controlling - in
the reported cases and in your case. Exercising that choice, then arranging
the ensuing sequence of cases into a compelling argument, is your job.
As with any construction job, a good blueprint helps.
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