Judges commented that the plain-English version of a writing sample compared to a traditional legalese version of the same writing sample was “more persuasive because of the succinctness of the argument” and “easier to understand, more clear and straightforward, and therefore more persuasive.”  In Writing to Persuade Judges, Sean Flammer, found that judges found the cleaner, leaner plain-English version to be more effective and understandable.

Readers (judges, other attorneys, your clients) want to know what YOU know and what YOU think, not that you read something and picked the best language without putting it into your own words.  The most effective legal writers use quotations sparingly and only when the quoted language itself is critical.  Summarize and paraphrase whenever possible.  An article from earlier this year in the Oregon State Bar Bulletin lays out a few rules for quoting effectively as well as some caveats.  In “Notes on Quotes: When and How to Borrow Language,” Rebekah Hanley discusses appropriate and effective use of quotations and an alternative to excessive quotations.

Douglas E. Abrams, author and law Professor at the University of Missouri, wrote a timely article in Precedent for the Missouri Bar Association, reprinted by the Nebraska Lawyer.  Effective Written Advocacy Before Generalist Judges: Advice from Recent Decisions examines the effects of lawyer specialization on the bench consisting of “generalist judges.”   From the beginning of each case, each judge is limited in his or her knowledge of not only the facts, but also the law.  According to the U.S. Court of Appeals for the Seventh Circuit, “courts rely on lawyers to identify the pertinent facts and law.”   And, because trial and appellate courts decide more cases on the written brief than oral argument, such identification of the law and legal issues as well as persuasion depends on the lawyer’s written product.

Abrams presents two strategies for effective written advocacy revealed by recent reported trial and appellate decisions: (1) Orienting the Court and (2) Avoiding Jargon. 

On Orienting the Court:

“Dropping a judge in the middle of an alien landscape without a map and expecting him to get his bearings from fragments of testimony couched in occupational jargon to which he has not been previously exposed … is not conducive  to informed decisionmaking.”  Federal District Magistrate Judge, Langston v. Illinois Bell Telep. Co., No. 88 C3578, 1990 WL 129567 *6 (N.D. Ill. Sept. 3, 1990).

On Avoiding Jargon:

“[M]uch legal jargon can obscure rather than illuminate a particular case.”  Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit, Miller v. Illinois Cent. R.R. Co., 474 F.3d 951, 955 (7th Cir. 2007). 

In a different case similarly involving complicated specialized jargon,  Judge Posner stated: “There is nothing wrong with a specialized vocabulary  – for use by specialists.  Federal district and circuit judges, however, … are generalists. … Lawyers should understand the judges’ limited knowledge of their specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry  has a counterpart in ordinary English. … [Counsel] could have saved us some work and presented their positions more effectively  had they done the translations from reinsurance into everyday English themselves.”  Indiana Lumbermens Mutual Insurance Co. v. Reinsurance Results, Inc., 513 F.3d 652 (7th Cir. 2008).

In a nutshell, advocates convey no condescension when they write in  a respectful, professional tone using language “intelligible to everyday speakers of English.”

The Oatmeal - How to Use an Apostrophe

Grammar and punctuation is SOOOO much easier when the instructions are illustrated! Are you stymied when deciding whether to include the apostrophe? Do you find yourself staring at the word “its” and wondering – “wait, does it need an apostrophe between the t and s or not?”

The Oatmeal has you covered. Now, you can be entertained by The Oatmeal’s witty grammar and punctuation comics AND relearn (or just plan learn) the rules. You’re welcome. (Note the correct use of the apostrophe to form a contraction. Many thanks to The Oatmeal.)

                   

“Even at their best, motions to compel are usually one of the least favorite parts of the job. They are tedious and very fact intensive.”

The Honorable Randy Wilson, a District Court judge in Harris County, Texas, and a seasoned trial lawyer, wrote the above sentiment in ”The Motion to Compel.”  Judge Wilson describes “bad” and “good” motions to compel from the Court’s view, which comes down to overall organization, not  poor writing or derogatory language, per se.  In Judge Wilson’s opinion, the best Motions to Compel group the disputed discovery requests by issue instead of methodically listing each request and leaving the judge to sort out which legal issue applies (note: make it easy for your reader).

For example, the “bad” Motion to Compel diligently listed each disputed request, stated the relevant objection, and argued why the requested information is relevant and why it should be produced. This “bad” type of Motion to Compel could have tens or even hundreds of objections and leaves the reader (ahem, the JUDGE who you are asking for help) to sort out the requests for him or herself and find the common denominators.  In other words, the “bad” Motion to Compel focused the judge’s attention on the trees with no direction as to how the trees were relevant to the forest.

In contrast, the “good” Motion to Compel grouped the requests by issue, categorized the information for the judge, and provided a brief description and roadmap where the judge could find the disputed request (when the judge needed to go and find it). This type of “good” Motion to Compel helped to focus the judge on the precise legal issue at hand, directing the court’s attention to the forest and the big issues in the case with some direction as to the individual trees and how they related to the forest.

According to Judge Wilson, a well drafted motion to compel should be persuasive and alive as well as: 

• Contain a brief summary of what the case is about. Don’t assume the judge knows the facts. We forget. Include a summary.
• Organize the disputed requests by issue. It’s important to remember that at the hearing, the judge will want you to organize your arguments anyway, so you might as well do it in the motion.
• Fairly summarize your opponent’s objections. Don’t mischaracterize the objections or engage in hyperbole.
• Engage in a good faith and honest attempt to resolve and narrow the issues.
• Include a form of order. Moreover, the order should list each request with a checkmark for grant or deny. If there are 30 different requests at issue, don’t simply include a global order granting the motion.

In “What Great Writers Can Teach Lawyers and Judges: Wisdom from Plato to Mark Twain to Stephen King (Part I),” Douglas E. Abrams discusses what legal writers can take away from good writers. Part I examines master non-lawyer writers on precision and conciseness. According to Abrams, unlike non-lawyer writers, legal writers face a “hostile audience,” i.e., other lawyers, judges, and clerks who read to find weakness in arguments, factual statements, etc. For this reason, precision is critical to withstand such constant critical attack from the “hostile” reader. Precision comes from choosing your words very carefully, meticulous writing, and careful editing.  As for conciseness, no one said it better than Theodore Geisel (aka Dr. Seuss):

“[T]he writer who breeds/more words than he needs/is making a chore/for the reader who reads./That’s why my belief is/the briefer the brief is,/the greater the side/of the reader’s relief is.” 

Too bad Dr. Seuss never wrote a book on Legal Writing.

Why paint a picture with words when you can just, well, paint with a picture?

“What kind of lawyer are you?” The answer, of course, is easy: “I’m a litigator,” you respond. As you bask in the glow of that term and envision yourself in the courtroom shredding a witness on cross, you get the follow up question: “So what do you spend most of your time doing?” You think back to the past week. Then the week before that. The picture of the cross-examination fades. Time to come clean. “Writing,” you answer.

As Mr. Pattison points out, litigators are professional writers, as are all lawyers, but litigators seem to be in denial about the nuts and bolts of their trade.  According to Bryan Garner, “There are only two things lawyers get paid for: writing persuasively and speaking persuasively.” Bryan A. Garner, Garner on Language and Writing 20 (2009).

My Legal Writing students were horrified to learn that they would be spending 60-70% of their time WRITING, especially in the first few years of their careers as lawyers.  In Writing to Persuade, Mr. Pattison interviewed several “deciders” – judges from all levels of Utah courts.  Each “decider” provides a few kernels of wisdom on effective writing and for the most part, the advice  is simple and it basically comes down to the following from Writing to Persuade.

What were you thinking about the last time you wrote a brief or trial court memorandum? Sticking it to opposing counsel? Sticking it to the trial judge who botched your case? Impressing your client with your mastery of legalese? Or perhaps just getting something on paper and filed before the 5:00 p.m. deadline? If so, hit reset. Because the success of your writing depends solely on how the judge receives it, the starting point to persuasive legal writing is to write with your judicial reader in mind.

For more advice from the “deciders,” visit the full post here.

While these bad habits seem obvious (and obviously bad), why do attorneys continue to use and abuse them? For example, the first of the Dirty Dozen is “Make it a ‘long,’ not a brief.” Really? This seems logical. We know judges (and their clerks) are busy people. So, why bombard them with wordy, lengthy, rambling tomes when concise, to-the-point missives suffice? Seems like greediness or laziness on the attorney’s part to me. Laziness for not properly revising the lengthy, like passive-voice document into something concise and active voice. Greediness for trying to stuff in as much law and persuasion as possible. 

Other notable offenders on the list include: “Be bombastic,” “Lay on the legalese,” “Make unreasonable arguments,” “Throw issues against a wall,” and “Don’t analyze.” Every attorney should read and heed Mr. McElhaney’s advice. Seriously -  read it, print it out and tape it to your wall so you can look at it everyday, email it to your colleagues, whatever it takes. Attorneys are professional writers and we, as a group, can do better.

The subscription fee is low and well worth the $38 for one-year, especially if you have been on the receiving end of harsh criticism from judges, supervising attorneys, or your own colleagues about your poor grammar and punctuation.