Nutshell Writing Tips: Be Confident About Your Conclusion

Posted: December 15th, 2015 | Author: | Filed under: Conclusions, Mission Critical Stuff, Nutshell Tips | No Comments »

Let’s continue with my top writing tips—the concrete techniques that I find myself referring to again and again as I coach lawyers one-to-one. Here is the next tip in the series and the running list is posted below.

Tip Seven: Be Confident About Your Conclusion

Be confident about your conclusion. When writing internal memoranda, young lawyers often hesitate to reach a conclusion on complicated issues and simply answer maybe. A conclusion that says maybe is not worth the cost of the research. A maybe conclusion reads as if the lawyer handed all the research to the assigning attorney with a note saying, “Here’s everything. Now you figure it out.” Always reach a definitive answer. If you must qualify your answer, say yes if … or no if …, then be very specific about the circumstances that trigger a yes or no answer. Explain which scenario is most likely to apply to your facts and why. As I’ve said before, show that you have the courage to conclude.

   The Running List of Nutshell Writing Tips

1. Speak human. Write in plain English. If you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. (By the way, plain English does not mean simple English. You are entitled to use your massive vocabulary, but use that vocabulary to convey nuance and precision—not to show off.) Here are more plain English tips.

2. Say your sentences out loud. Say each sentence aloud to edit for plain English and to cure clutter and awkward constructions. The best writing mimics the cadence and rhythm of human speech. Trust your ear.

3. Lead from the top.  Your opening must establish your command of your subject and “prime” your reader by telling them what to look for. The opening must explain the facts, the problem, and your answer. You should open, at most, in a page and a half. The strongest writing opens in the first paragraph. Leading from the top is the most important rule of all and here is more on how to lead from the top.

4. Begin with the background story. Your target audience is not just the attorney who gave you the assignment, but also the next person who reviews the file and who may not know the background of your case. Always set the stage by introducing the key players, explaining the nature of their relationship, and identifying the problem or issue. (In other words, skip the facts. Tell a story instead.)

6. Lead with your conclusion. Lead from the top by putting your conclusion in the opening page and a half or, better yet, in the first paragraph. Again, the most important structural rule for any expository writing is to lead from the top and that includes having  the courage to conclude.  So be brave and take a stand in the opening of your paper.

-Marie

P. S. These techniques are a nutshell summary of the key principles in my book, The Lawyer’s Essential Guide to Writing (ABA 2011). Follow the link to see what people have said about the book or to order it from the ABA, Amazon or Itunes. It makes a great gift for your lawyer friends! #shamelessbookpromotion



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Nutshell Writing Tips: Lead with the Conclusion

Posted: May 5th, 2015 | Author: | Filed under: Lead from the Top, Nutshell Tips, Structure (Important Stuff Here) | Tags: , , , , | No Comments »

Let’s continue with my top writing tips—the concrete techniques that I find myself referring to again and again as I coach lawyers one-to-one. Here is the next tip in the series and the running list is posted below. Stay tuned!

Tip Five: Lead with the Conclusion

Lead with your conclusion. Lead from the top by putting your conclusion in the opening page and a half or, better yet, in the first paragraph. Again, the most important structural rule for any expository writing is to lead from the top and that includes having  the courage to conclude.  So be brave and take a stand in the opening of your paper.

   The Running List of Nutshell Writing Tips

1. Speak human. Write in plain English. If you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. (By the way, plain English does not mean simple English. You are entitled to use your massive vocabulary, but use that vocabulary to convey nuance and precision—not to show off.) Here are more plain English tips.

2. Say your sentences out loud. Say each sentence aloud to edit for plain English and to cure clutter and awkward constructions. The best writing mimics the cadence and rhythm of human speech. Trust your ear.

3. Lead from the top.  Your opening must establish your command of your subject and “prime” your reader by telling them what to look for. The opening must explain the facts, the problem, and your answer. You should open, at most, in a page and a half. The strongest writing opens in the first paragraph. Leading from the top is the most important rule of all and here is more on how to lead from the top.

4. Begin with the background story. Your target audience is not just the attorney who gave you the assignment, but also the next person who reviews the file and who may not know the background of your case. Always set the stage by introducing the key players, explaining the nature of their relationship, and identifying the problem or issue. (In other words, skip the facts. Tell a story instead.)

-Marie

P. S. These techniques are a nutshell summary of the key principles in my book, The Lawyer’s Essential Guide to Writing (ABA 2011). Follow the link to see what people have said about the book or to order it from the ABA, Amazon or Itunes.

 

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Nutshell Writing Tips: Begin with the Background Story

Posted: May 1st, 2015 | Author: | Filed under: Mission Critical Stuff, Nutshell Tips, Story or Facts | Tags: , , | No Comments »

Let’s continue with my top writing tips—the concrete techniques that I find myself referring to again and again as I coach lawyers one-to-one. Here is the next tip in the series and the running list is posted below. Stay tuned!

Tip Four: Begin with the Background Story

Begin with the background story. Your target audience is not just the attorney who gave you the assignment, but also the next person who reviews the file and who may not know the background of your case. Always set the stage by introducing the key players, explaining the nature of their relationship, and identifying the problem or issue. (In other words, skip the facts. Tell a story instead.)

   The Running List of Nutshell Writing Tips

1. Speak human. Write in plain English. If you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. (By the way, plain English does not mean simple English. You are entitled to use your massive vocabulary, but use that vocabulary to convey nuance and precision—not to show off.) Here are more plain English tips.

2. Say your sentences out loud. Say each sentence aloud to edit for plain English and to cure clutter and awkward constructions. The best writing mimics the cadence and rhythm of human speech. Trust your ear.

3. Lead from the top.  Your opening must establish your command of your subject and “prime” your reader by telling them what to look for. The opening must explain the facts, the problem, and your answer. You should open, at most, in a page and a half. The strongest writing opens in the first paragraph. Leading from the top is the most important rule of all and here is more on how to lead from the top.

-Marie

P. S. These techniques are a nutshell summary of the key principles in my book, The Lawyer’s Essential Guide to Writing (ABA 2011). Follow the link to see what people have said about the book or to order it from the ABA, Amazon or Itunes.

 

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Nutshell Writing Tips: Lead from the Top

Posted: April 21st, 2015 | Author: | Filed under: Mission Critical Stuff, Nutshell Tips, Structure (Important Stuff Here) | No Comments »

Let’s continue with my top writing tips—the concrete techniques that I find myself referring to again and again as I coach lawyers one-to-one. Here is the next tip in the series and the running list is posted below. Stay tuned!

Tip Three: Lead from the Top

(The Most Important Rule)

“Prime” your reader by leading from the top. Your opening must establish your command of your subject and “prime” your reader by telling them what to look for. The opening must explain the facts, the problem, and your answer. You should open, at most, in a page and a half. The strongest writing opens in the first paragraph. Here is more on how to lead from the top.

  The Running List of Nutshell Writing Tips

1. Speak human. Write in plain English. If you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. (By the way, plain English does not mean simple English. You are entitled to use your massive vocabulary, but use that vocabulary to convey nuance and precision—not to show off.) Here are more plain English tips.

2. Say your sentences out loud. Say each sentence aloud to edit for plain English and to cure clutter and awkward constructions. The best writing mimics the cadence and rhythm of human speech. Trust your ear.

-Marie

P. S. These techniques are a nutshell summary of the key principles in my book, The Lawyer’s Essential Guide to Writing (ABA 2011). Follow the link to see what people have said about the book or to order it from the ABA, Amazon or Itunes.

 

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Nutshell Writing Tips: Say your sentences out loud.

Posted: April 15th, 2015 | Author: | Filed under: Mission Critical Stuff, Nutshell Tips | Tags: , | No Comments »

Let’s continue with my top writing tips—the concrete techniques that I find myself referring to again and again as I coach lawyers. Here is the next tip in the series and the running list is posted below. Stay tuned!

Tip Two: Say Your Sentences Out Loud.

Say your sentences out loud. Say each sentence aloud to edit for plain English and to cure clutter and awkward constructions. The best writing mimics the cadence and rhythm of human speech. Trust your ear.

  The Running List of Key Writing Tips

1. Speak human. Write in plain English. If you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. (By the way, plain English does not mean simple English. You are entitled to use your massive vocabulary, but use that vocabulary to convey nuance and precision—not to show off.)

 

-Marie

P. S. These techniques are a nutshell summary of the key principles in my book, The Lawyer’s Essential Guide to Writing (ABA 2011). Follow the link to see what people have said about the book or to order it from the ABA, Amazon or Itunes.

 

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Nutshell Writing Tips: Speak Human

Posted: April 8th, 2015 | Author: | Filed under: Mission Critical Stuff, Nutshell Tips | No Comments »

Let’s spend the next few posts talking about the key principles that lead to strong writing. As you may know, I focus on Three Rules for Writing. (Speak human. Lead from the top. Explain what to do next.) But as I coach lawyers in one-to-one sessions, I emphasize a dozen-plus techniques—concrete principles that I find myself referring to again and again.

I want to keep each post short and sweet, so I’ll post the tips one by one. (Confession: My dozen-plus tips actually total 17, but the entire list fits easily in two pages.) I’ll also post the running list, as we build it, below the newly posted tip. So stay with me and here we go:

Rule One: Speak Human

Speak human. Write in plain English. If you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. (By the way, plain English does not mean simple English. You are entitled to use your massive vocabulary, but use that vocabulary to convey nuance and precision—not to show off.)

Coming Next:

Say your sentences out loud.

 

-Marie

P. S. These techniques are a nutshell summary of the key principles in my book, The Lawyer’s Essential Guide to Writing (ABA 2011). Follow the link to see what people have said about the book or to order it from the ABA, Amazon or Itunes.

 

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Think before you write, but begin writing before you have finished thinking.

Posted: June 4th, 2013 | Author: | Filed under: Efficient Work Habits, Mission Critical Stuff, Uncategorized | Tags: , , , , | 2 Comments »

Writing is a discipline so it requires that you have efficient, disciplined work habits. Since you are being paid to write, you do not have the luxury of waiting for inspiration to strike. Like any professional writer, you must produce on demand. If you develop good writing habits, those habits will become ingrained and over time, you will find that writing becomes easier and faster.  

We have already talked about the importance (and bliss!) of finding the “flow” and how working on a big screen will improve your productivity. Today, let’s talk about how to organize your thoughts before you start writing.

Think First. Write Later.

Word-processing software is irresistible. It seduces us to start writing before we have begun thinking. Practice safe writing. Put your major thoughts in place—by creating a work page, a mind map or even (horrors!) an outline— before you give into the urge to puts words on paper. (Read on for more on outlining. I’ll talk about mind-mapping in a later post.)

But Begin Writing Before You Have Finished Thinking.

You will learn about your topic by writing about it. So, while you must have some plan in place before you begin writing, that plan will change as you write. Let it change. If you stay flexible and open to new ideas while you write, your paper will become deeper and more relevant. And if you wait to start writing until you have finished thinking, you may never start writing at all.

Have a Plan.

But you must have some plan in place before you begin—whether it is a scribbled work page or a detailed, numbered outline. For example, before William Langiewische wrote his 70,000 word article, “American Ground: Unbuilding the World Trade Center,” in The Atlantic Monthly (July and August, 2002) —then the longest magazine article ever published—he created a handwritten flow chart taking up several feet of butcher paper. (A portion of Langiewische’s butcher-paper outline is reproduced in in this article from the Columbia Journalism Review.)

Outline As You Go.

Outlining works. It is a flexible, efficient tool for organizing your thoughts. But many lawyers avoid outlining, believing it requires them to have a global vision of their paper before they write. Instead, outline in piecemeal fashion while you write. Begin with the most obvious themes: What is your most important case or line of cases? What headings summarize those cases? Then work through your research, case by case, creating new headings and plugging cases into existing headings.

If you approach outlining as a tool, rather than a rigid guideline, outlining will give you control over your writing because it will keep you focused on the big picture. Again, the goal is to have a perfected outline in place by the time you finish writing.

Once you have finished writing and your outline is complete, use that outline as the master key for proofing the structure of your paper. If the outline is perfect, then so is the structure of your paper. The craft of legal writing becomes art through masterful use of structure and your finished outline is your best resource for fine-tuning structure.

Outline from Memory.

The mind is a wonderful sifting device. If you let your ideas ferment in your brain, the cream will rise to the top. So begin outlining from memory. Your best ideas are probably the ones that come to mind first.

Use Your Research Files As an Outline.

If you have filed your research carefully, your filing system can also serve as your outline. Arrange your files in a logical order and order the cases or statutes within each file. The resulting order will resemble the dreaded linear outline and involves only a fraction of the effort involved in creating a linear outline from scratch.

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I’ll post later about mind-mapping, creating a routine, and writing from the middle out. So stay tuned.

-Marie

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P.S. I did lots of thinking and outlining before I wrote my book, The Lawyer’s Essential Guide to Writing.

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2 Comments on “Think before you write, but begin writing before you have finished thinking.”

  1. 1 David said at 10:09 pm on November 5th, 2013:

    All good points, but as a professional writer myself I think that part of developing good habits is creating an environment where you’re able to write. Too many attorneys don’t have this oasis – they are too busy, they have too many distractions. (Not that I’m complaining, that’s why they hire me, after all!) For me, the routine that works is to plan what I’m going to write the day before, let it percolate in my mind, then hit it first thing the next morning. Crank up the music and churn it out.

  2. 2 mariebuckley said at 2:35 pm on November 6th, 2013:

    Very good point, David. And many famous authors says that writing for a few hours first thing in the morning is the key to their routine. But I admire anyone who can write with music cranking. I need dead silence!

    Thanks for commenting,

    Marie


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Seeing the Big Picture in the Cases

Posted: March 21st, 2013 | Author: | Filed under: Research Tips, The Argument or Analysis, Thinking about the Cases | Tags: , , , , | No Comments »

The strength of any piece of legal writing turns on the depth and breadth of the research that supports the writing. But legal research is about much more than simply finding cases or presenting long lists of authority. Real understanding of the case law requires that you think outside narrow legal categories—such as intent, misrepresentation or reliance—and that you present the big-picture view of a body of law.

How do you get to that big picture view? You must focus on fact, rather than theory. Here’s one technique that may help you unearth the big picture.

  • Divide Your Cases into Two Categories: For You and Against You

Your key cases will generally fall into two categories: those in which the court ruled for the analogous party and those in which the court ruled against. So arrange your cases into two groups: cases which help and cases which hurt or yes and no. Within your yes and no groups, arrange your cases in order of importance. Think about your yes cases (and later, your no cases) as a whole. What case have you put first? Why? Is it the most analogous case? The leading case? The most recent case?

  • Review Each Group as a Whole to Identify Factual Trends

Now look for the factual distinctions between your yes and your no cases. For example, how egregious must palming off be before it justifies piercing the corporate veil? Is a court more likely to find reliance where a buyer was unsophisticated? If so, just how unsophisticated must the buyer be?

By considering each group of cases as a whole, you will see factual patterns that are not apparent from reading any single case but go to the core of a court’s reasoning. If you know these factual patterns, you can comment authoritatively on the reasons behind the law, rather than simply parroting back citations and vague legal theory.

  • Yes and No? Isn’t that too simple?

It’s so simple that it clarifies complex ideas. For example, Thurgood Marshall and his colleagues relied on factual distinctions to make history in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). There, Marshall and his colleagues had little precedent going their way. If they organized their research into yes and no cases (and perhaps they did), their no pile would have been huge and their yes pile would have been empty. Since they had little law on their side, they did what brilliant advocates do. They argued the facts.

In their oft-cited brief (also cited in Steven Stark’s, Writing to Win), Marshall and his colleagues effectively dismissed the Board’s many equal protection cases by categorizing them as simple “nuisance cases, sewage cases and cases of overhanging cornices”—a “cautious calculation of conveniences” that could not compare to the rights of children “to be treated as entire citizens of the society into which they have been born.”

  • Look for Patterns in the Facts

Obviously, you must identify factual analogies between your case and the precedent. However, you must also identify factual trends in the precedent. For example, if you are asking the court to pierce the corporate veil, review all cases in which the court did pierce the veil to identify any facts that will support a pierce. Then give the court concrete reasons to accept your argument by focusing on facts. For example, say “A court may pierce the corporate veil whenever a company’s capitalization falls below a certain ratio.”  Avoid generic statements of law, such as “A court will pierce the corporate veil to prevent fraud.”

So – divide and conquer!

-Marie

P.S. My book, The Lawyer’s Essential Guide to Writing, contains lots of yeses and nos.

 

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Avoid stuffy language and use familiar words instead.

Posted: January 24th, 2013 | Author: | Filed under: Editing, Plain English: Tips | Tags: , , , , , | 1 Comment »

Avoid stuffy, academic language. Use familiar, concrete words instead. Here are some plain English alternatives to some common stuffy phrases.

In all likelihood likely, probably
Let me offer an explanation of the cause. Let me explain why.
statement for professional services bill
Enclosed please find. . . . I have enclosed . . . .
presently soon, now
Pursuant to our conversation . . . . As we discussed . . . .
Per your request . . . . As you asked . . . .
I am of the mind that . . . . EEEEEEK! (There is no cure – just delete it.)
Signage sign
Of particular import to this issue . . . . In particular,
He was aware that . . . . He knew that . . . .
He shall have the ability to . . . . He can . . . .

So how stuffy are your words?

-Marie

P.S. My book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques has hardly any stuffy words.

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One Comment on “Avoid stuffy language and use familiar words instead.”

  1. 1 How to understand and develop your business brand tone said at 5:33 pm on September 9th, 2015:

    […] threw up an excellent post from the blog ‘A lawyer’s guide to writing’, titled ‘Avoid stuffy language and use real words instead’.) Well done Marie […]


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The Art of (Not) Quoting

Posted: January 17th, 2013 | Author: | Filed under: Talking About the Cases, The Argument or Analysis | Tags: , , , | No Comments »

Quote Sparingly.

Judges and senior attorneys want you to summarize the cases for them. Quote from cases only if the language is extremely significant.

Introduce Quotations with Substantive Sentences

The sentences that introduce your quotation should summarize the quoted language. For example, introduce a quotation with a sentence, such as In Smith v. Jones, the First Circuit also outlined the factors that determine whether more than a corrective disclosure is required. An effective introductory sentence spares the reader the agony of actually reading the quote. Avoid introducing quotations with bland phrases that tell nothing about the material to follow, such as In Smith v. Jones, the court held that. . . .

Avoid long quotations.

Long quotations beg not to be read. Readers love block quotes because the block format highlights just what part of the page they can skip. And skip it they will. If you must include a long quote, consider breaking it up into smaller parts so that you can keep it in your paragraph. Begin with The court stated that. . . . Continue with The court explained that. . . . Conclude with The Court cautioned that. . . .

But if you must quote a long passage, put it in a block.

If you must quote a passage of fifty words or more, set off that quote in block format: double space before and after the quote, single space within the quote and indent five or ten spaces at the left and right margins.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques, contains many more scintillating tips like this!

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Weave Adverse Case Law into Your Argument or Analysis

Posted: January 10th, 2013 | Author: | Filed under: Mission Critical Stuff, Talking About the Cases, The Argument or Analysis | Tags: , , , , , | No Comments »

Happy New Year! Let’s continue our series on how to present case law. We’ve talked about the lingo for discussing patterns in the case law. We’ve noted that skilled advocates don’t just list cases, they summarize a body of law and give a global picture of the research. And we’ve also talked about the three key issues in any case discussion. (Remember? Facts. Facts. Facts.) Now let’s talk about how to handle the elephant in the room—adverse case law. Your ethical obligations require that you mention it, but how do you talk about it without hurting your case?

Adverse case law rarely deserves a dedicated introductory sentence that flatly states its holding. If you break adverse case law into a separate section or paragraph, you may find yourself arguing the other side’s case, no matter how carefully you distinguish that law. Instead, weave opposing authority into your argument and present it offensively by using transitional words such as however and although.

For example, if you are arguing that the corporate veil should not be pierced, you should not begin your discussion of a case allowing a pierce by stating, In Jones v. Nasty Corp., the court pierced the corporate veil where Nasty Corp. was undercapitalized. Rather, explain that Although Jones v. Nasty Corp. allows a court to pierce the corporate veil where a corporation is undercapitalized, our client—unlike Nasty Corporation—is adequately capitalized. Couching troublesome authority in an although clause helps dilute its impact. For example, you might say that Although courts will pierce where the corporation has committed fraud, Client X never misrepresented its identity.

If you “wrap” your discussion of opposing authority with language that helps your case, you will meet your ethical obligations without losing control of your argument.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing contains many fascinating tips like this!

 

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The Three Key Questions in Any Case Discussion: Facts. Facts. Facts.

Posted: November 29th, 2012 | Author: | Filed under: Mission Critical Stuff, Talking About the Cases | Tags: , , , | No Comments »

Let’s continue our series on how to present case law. Last week, we talked about how skilled advocates don’t just list cases, they summarize a body of law and give a global picture of the research. Earlier, I suggested lingo for discussing patterns in the case law. Today, let’s talk about the three key issues in any case discussion. Facts. Facts. Facts.

Focus on the Factual Results of the Cases.

Judges and senior attorneys already know the law cold. Your job is to explain how the law plays out in the real world of people and facts. Therefore, focus on the facts and results in the cases, rather than vague statements of law.

For example, in its brief opposing certiorari in the Ten Commandments case, the ACLU summarized a huge body of First Amendment law in one masterful paragraph—a paragraph that focused on the results of the cases. There, the ACLU argued:

Where “a governmental intention to promote religion is clear,” Edwards v. Aguillard, 482 U.S. 578, 585 (1987), this Court has not hesitated to hold the challenged conduct unconstitutional. Thus, the Court has invalidated Louisiana’s creationism statute, Aguillard; struck down a Kentucky law requiring the posting of the Ten Commandments in public schools, Stone; struck down Alabama’s moment of silence statute, Wallace v. Jaffree, 472 U.S. 38 (1985); and held unconstitutional the mandated daily reading of Bible verses and the Lord’s Prayer in public schools, Abington Township Sch. Dist. v. Schempp, 374 U.S. (1963). Significantly, in each of these cases, this Court held that the challenged conduct was motivated by a religious purpose, and disregarded the government’s assertion of a sincere non-religious purpose.

Brief of ACLU in Opposition to Petition for Writ of Certiorari, McCreary v. ACLU, 545 U.S. 844 (2005) ( ACLU Brief, page 24-25).

Explain the Facts of Every Significant Case You Cite—Even If You Must Use a Parenthetical to Do So.

Never discuss a significant case without explaining its facts. In an ideal world, we would discuss all cases in prose and do away with cumbersome parentheticals. But parentheticals remain a useful, if imperfect, tool for preserving large bodies of research. They are the key to writing deep, substantive papers because they flesh out the factual and procedural context in which cases are decided and condense vast amounts of research into a small space.

So write a factual parenthetical every time you cite a case but don’t discuss that case in prose. (But you do not need factual parentheticals for cases that discuss boilerplate propositions of law, such as the standard of review or the burden of proof.) Although parentheticals admittedly slow the flow of your paper, the trained eye knows to peruse them quickly and their substantive benefit far outweighs the stylistic hiccup they create. Parentheticals are not perfect but using a parenthetical is better than losing the information.

Make Your Parentheticals Factual.

The job of a parenthetical—like the job of sentences—is to add new substantive information. Your parentheticals will add value if they explain what actually happened in the cases.

So if you have discussed the holding of the case in text, your parenthetical must do more than simply restate the holding. The best parentheticals summarize key facts about a case or the result, as in:

Treadway Companies, 638 F. 2d at 380 (refusing to require cooling-off period where tender offer occurred four months after corrective disclosure).

If needed, use parentheticals to explain why you cite a case, as in:

W. A. Krueger Co. v. Kirkpatrick, Pettis, Etc., 466 F. Supp. 800, 803 (D.C. Neb. 1979) (action for damages is limited to actual sellers and purchasers).

If you are using a parenthetical for multiple purposes, such as explaining facts and reasoning, you can keep each part of the parenthetical distinct by separating the two parts of the parenthetical with a semicolon, as in:

General Aircraft v. Lampert, 556 F.2d 90 (1st. Cir. 1977) (action by target corporation under Section 13D; finding irreparable harm would occur only if investors were allowed to continue activities without correcting schedule 13D).

Parentheticals should also explain the procedural result of the case, not simply the rule of law, as in:

General Aircraft v. Lampert, 556 F.2d 90 (1st. Cir. 1977) (requiring shareholder to amend its Schedule 13D and enjoining further acquisitions until amendment was filed).

If a case summarizes a body of law, give an overview of the law and cite to the summary case with a parenthetical stating (collecting cases). Citing to the case that gives the overview of authority saves you the need to cite the historical cases individually. A parenthetical simply stating (same) may be appropriate in a string citation.

Don’t be wimpy.

Don’t waste a parenthetical on simply quoting the part of the case that supports your previous prose sentence. The quote adds nothing new and suggests that you don’t trust your own prose paraphrase.

-Marie

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Coming next: The Art of Quoting Not Quoting.

P. S. from the Shameless Self-Promotion Department: My Book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques (ABA, 2011) is chock full of tips like this and it would make a wonderful gift for your lawyer friends.

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Techniques for Talking About Case Law

Posted: November 15th, 2012 | Author: | Filed under: Talking About the Cases | Tags: , , , | 1 Comment »

Handling case law is an art form and the lawyer who can do it well is not only an advocate, but an artist as well. So let’s talk about the techniques that skilled advocates use to present case law—techniques that lead to a deep and concise overview of large bodies of research. Their secret? Skilled advocates give an overview of a body of law, rather than simply listing cases.

Give a Global Picture of Your Research

Often the most important part of your research is what you did not find. If no court has ever ruled against your position, then you miss an opportunity if you simply cite the 1,001 cases that favor your position. Emphasize the absence of any opposing authority by stating, for example, that No court has ever declined to find personal jurisdiction over a defendant who maintained an office within its jurisdiction. If only two cases go against you, emphasize the paucity of opposing authority by explaining Only two reported cases have ruled that . . . . If the authority is split, search for the factual distinctions and, if you can, explain that The most analogous cases hold that . . . . If you are writing a research memorandum and no cases go your way, you must flatly disclose the absence of helpful authority.

Discuss the Most Recent or Most Important Law First

Unlike in the fact section of a briefwhere we often present the detailed facts in chronological order—you should not present your cases chronologically. Instead, give your readers a snapshot of current law by beginning with the most important or most recent cases. Provide historical context only if that context helps explain current law.

Learn the Lingo for Talking About Cases

Discussing case law is an art form and shorthand phrases make your job easier, as long as you don’t slip into legalese. A case can be distinguishable, controlling, relevant, analogous, seminal or binding. Discussing patterns in the case law is even more challenging so certain well-used phrases—such as this court squarely addressed or this court has long recognized—are helpful. (Click here for a list of the Lingo for Talking About Cases.)

Discuss Key Cases in Prose, Rather Than in Parentheticals

Your most important cases should always be discussed in prose, rather than in a parenthetical. The decision to discuss a case in prose shows that you assign a higher value to that case than to the cases that you discuss in parentheticals. But even if you discuss a case in prose, you might still need to write parentheticals to flesh out minor facts or the procedural history of the case. (And, yes, you should use parentheticals to share the facts of minor cases.)

Use Signal Phrases Every Time You Introduce a New Case

Your readers want to know immediately whether a case is the leading or most analogous case or whether it narrows a concept, states a different position, simply provides an example or repeats earlier information. Therefore, always assign a value or weight to the case by using signal phrases that show why you are citing that case. Use phrases such as in the leading case, in an analogous case, in particular, by contrast, however, for example, recently, also or again. But, again, be careful not to begin every sentence in a paragraph with a signal phrase or you will compromise the rhythm of your writing.

Summarize Case Law Succinctly

In Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 748 (2007), Justice Roberts summarized the law before Brown v. Board of Education of Topeka with a gifted economy of words. He explained simply, “Before Brown children were told where they could and could not go to school based on the color of their skin.” 551 U.S. at 747. If Justice Roberts can reduce decades of constitutional jurisprudence to a few pithy words, you should be able to discuss a statute-of-limitations case or the doctrine of piercing the corporate veil in a sentence or two.

We’ll talk another time about how to discuss the facts of cited cases. Prose or parenthetical? Stay tuned ….

-Marie

P.S. My Book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques (ABA, 2011), is full of fascinating tips like this. Order it here.

 

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One Comment on “Techniques for Talking About Case Law”

  1. 1 A Lawyer's Guide to Writing » Blog Archive brief writing tips said at 4:10 pm on November 29th, 2012:

    […] continue our series on how to present case law. Last week, we talked about how skilled advocates don’t just list cases, they summarize a body of law and give a global picture of the research. Earlier, I suggested lingo […]


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Strong Verbs Add Zing to Your Writing

Posted: October 4th, 2012 | Author: | Filed under: Plain English: Tips | Tags: , , , , , | No Comments »

Colorful verbs convey images and add punch to your writing. Babies wail. Toddlers whine. Children fidget. Teenagers flirt. Hearts flutter. Later in life, traffic crawls, markets seize or melt and the right cars sip gas.

Colorful verbs can convey passion, outrage and a strong sense of right and wrong. In the Declaration of Independence, our founding fathers chose Biblical verbs to convey the depth of their oppression by the King of England: “He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.”  With verbs like that, who would doubt the justice of their cause? Or consider the Gettysburg address, in which Lincoln lamented that “we cannot dedicate . . . we cannot consecrate . . . we cannot hallow . . . this ground.”

Many of your favorite childhood friends also depended on strong verbs. Remember when the wild things “roared their terrible roars and gnashed their terrible teeth and rolled their terrible eyes?” Of course you remember. You remember so well that I don’t need to remind you that this passage comes from Maurice Sendak’s Where the Wild Things Are. Strong verbs cement themselves in your memory.

And there are descriptive verbs for every phase in your life, including your years practicing law. Legislation may falter in the House or sail through Congress. Plaintiffs malinger. Defendants plead. Witnesses mumble, squirm, and duck questions. Other questions elicit responses. Courts admonish. Companies don’t simply fail to disclose losses. They hide those losses. And those losses then propel companies into dangerous financial positions, where they teeter on the verge of bankruptcy.

Colorful verbs can bring passion to judicial opinions, as well. Consider Justice Stevens’s dissent in Citizens United. There, Stevens lamented that “the majority blazes through our precedents. . . .”  Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 930 (2010) (Stevens dissenting).

Both life and the law happen in color so never settle for black and white verbs.

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Italicize case names. Yes, italicize. Don’t underscore.

Posted: September 20th, 2012 | Author: | Filed under: Design, Grammar, Punctuation, and Usage, Talking About the Cases | Tags: , , , , , | No Comments »

Old habits die hard. When I suggest that lawyers italicize case names, they often react in horror. But the modern preference is to italicize case names, rather than underscore, although either is correct. I know. You still don’t believe me. Since my word on this issue may not be enough to slant you (pun intended!) in the proper direction, here’s the reason why.

In the old days (before computers), lawyers underscored case names and introductory signals because typewriters and early word-processing programs could not italicize. So briefs that were professionally printed used italics, but briefs that were typed in-house had to make do with underscoring. Although most style manuals say that case names may be italicized or underscored, it makes sense to drop the obsolete convention of underscoring now that typewriters are being turned into jewelry.

All the authorities agree on this. The style guides still allow underscoring out of deference to anyone who may still be typing on an old typewriter. Contrary to popular perception, The Bluebook does not require underscoring. It gives the option of either underscoring or italicizing (see bluepages at front, B13 on typeface conventions), but it then confuses the issue by using underscoring throughout. (Did you expect anything but confusion from The Bluebook?)

The ultimate guru on all things related to the design of legal documents is Matthew Butterick. (His book, Typography for Lawyers, is groundbreaking. You should buy it.) He insists on italics for case names and also explains that the Bluebook does not require underscoring.  Bryan Garner also endorses italics. And Supreme Court briefs use italics. Here’s an example: Supreme Court Brief using italics.

Italics follow the design principle of keeping the fonts on a page as simple and consistent as possible. Italics are just easier on the eye.

So tilt away!

-Marie

P.S. My book contains many other fascinating tips like this.

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How to Be the Perfect Summer Associate.

Posted: June 25th, 2012 | Author: | Filed under: Mission Critical Stuff, Most Popular Posts, Musings on Writing (and Life) | Tags: , , , | No Comments »

Congratulations!

So you are one of the lucky ones who landed a summer job. Nice office! Free coffee! The natives are friendly! But summers at law firms are no longer the professional equivalent of summer camp. In today’s economy, an offer is not guaranteed. You must show that you are worth hiring.

Write as if Your Offer Depends on It.

You cannot be an effective lawyer today if you cannot write. Because writing skills are so essential  in the legal world, careers often rise—or fall—based on the ability to write. So firms rightly expect their young lawyers to be superb writers. Therefore, each writing assignment is an opportunity for you to show that you are a sharp thinker and a promising lawyer. Write as if your offer depends on your writing. Because it does.

Ask Questions. Write Down the Answers.

Writing is not just about a knack for writing clean, crisp sentences. In the legal world, writing turns on substance. You cannot write about your topic if you do not understand the background. So make sure you understand the Story behind your assignment. Who is your client? Who are the other players? How do they know each other? What went wrong or what are they trying to accomplish?

Ask intelligent, focused questions and write down the answers. Writing down the answers shows that you are paying close attention to the information.

But Don’t Be Needy.

Your colleagues will not have time to hold your hand or walk you step-by-step through your project. Ask enough questions so that you understand your assignment, but find the answers to simpler questions on your own. You must show that you can work independently, with minimal supervision, and return a perfect project.

Review the Case File.

The case file may contain a wealth of information that your colleague may not have had the time to share, so always review the case file to be sure you understand your project.

File Your Research Carefully.

After you leave in August, the case will continue on without you. Imagine that your colleague must argue the case the week after you leave, but that he or she will not have time to prepare until the night before the argument. If you leave meticulous, carefully marked-up case files, your colleague will be forever grateful.

You should build that case file while you do your research. As you find your cases, mark them up and highlight them. Summarize the facts of the case in a two-word soundbite at the top of the case. Note the holding and the reasoning. Then file the cases carefully by topic and subtopic. File your cases based on fact-pattern. Keep files for your opponent’s authority and for cases that need to be distinguished. Within each file, put the most important cases at the top of the file.

If your cases are not filed in an obvious place, such as Westlaw or Nexis, make sure your colleague knows how to find your case file. If you file your cases electronically, email the file to the assigning lawyer.

Write Brilliantly.

The question of what makes for brilliant writing can’t be covered in a short blog post. (It took me a book to share all the tips I’ve learned as a writing coach.) But if you follow the Three Essential Rules for Strong Writing, your writing will sing.

1. Use plain English.

Speak human. Choose real, concrete words. Avoid legalese and jargon. Say your sentences aloud to cure clutter. (Click here for more Tips on Plain English and Other Kindnesses.)

2. Lead from the top.

You will win or lose your readers in the first page or so—or in the first paragraph. Therefore, the opening is the most important part of your paper and it should “lead” for the whole paper. An opening must explain three things: the background story, the issue, and your answer.

Let me say that last part again. Lead your paper with your answer. Put the answer in the first paragraph. Better yet, write it on neon lights or tattoo it on your forehead. And be brave and take a stand. Show that you have the confidence to reach a clean, authoritative answer.

Within the body of the paper, lead each section with a substantive heading and lead each paragraph with a short, introductory sentence.

3. Tell your reader what to do next.

Why did your colleague ask you to research this issue? What will she use the information for? What should the client do next? Always finish a paper by explaining what the reader should do next in the real world.

Dig Deeply Into the Cases.

When a lawyer asks you to research an issue, chances are that he or she already knows the general rules of law that govern your issue. What that lawyer does not know is how those rules play out in the real world. So be sure to share the facts of every case you cite. If you can’t do so in prose, share the facts in a short fact-based parenthetical. (Click here for More Tips on Handling Case Law.)

Make Your Work Perfect.

Yes, perfect is the enemy of done but you are not done until it is perfect. Proofread like your offer depends on it. (Again, it does.) (Click here for Eight Steps for Proofreading.)

Turn Your Work in On Time.

Your colleagues will love you—just love you!—if you turn your work in on time.

Ask for Feedback, But Take it Like a Grown Up.

After you turn in a project, ask your colleague for feedback. Did the paper answer your question? Can I do anything else to follow up? But again, don’t be needy. Your colleagues will not have time to give you detailed feedback. And no news usually means that your paper fit the bill. (Bad news tends to arrive by flaming lightning bolt within nanoseconds.)

And if the criticism is negative—errrr, constructive—don’t go off in a huff. Listen and learn. Say thank you. Then show that you can learn from that criticism by writing a brilliant paper next time.

Be a team player.

No one wants to work with a prima donna or some other flavor of jerk. So show that you play well with others. Be smart and decent. Show that you are willing to work hard. Play nice. And have fun. If people think you enjoy your work, they will want to work with you.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing (ABA 2011), would make a great gift for the summer associate in your life!

 



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Step Three of Deep Editing: Synthesize

Posted: June 20th, 2012 | Author: | Filed under: Editing | Tags: , , , , | No Comments »

In my recent posts, I talked about the first two steps of deep editing. First, you must clean up your sentences. Second, you must edit for structure.  Now, let’s talk about the final step—synthesis.

Step Back. Close Your Eyes. Breath Deeply. Open your New Eyes.

You cannot appreciate a Monet or a Chuck Close with your nose two inches from the canvas. You must walk to the other side of the room and get some distance to appreciate the whole painting. So, too, you must get distance on your writing once you are through the more mechanical sentence-level and structural edits. Put your paper down. Think. What are your one, two or three key points? Do they sing through? Is the “big picture” view of the research clear? Is the paper balanced? Or are you spending too much time on minor points and, therefore, sounding defensive? What facts work? Are you playing to those strengths? Are you arguing points that are not essential to winning your case and effectively increasing your burden of proof? Are you arguing too many points so that the paper reads like an issue-spotting law-school exam rather than a piece of advocacy for a client?

If your paper is a research memorandum, have you culled the research down? If you include too much information, your reader may find that it is easier to read the research file itself, rather than wade through your paper.

Finally, are you being intellectually honest about the weaknesses of your case? Is the tone confident and integral?

Ask a Colleague for Comments.

You have very smart friends. They are not only smart, they will also have a fresh perspective on your work. So ask a friend—preferably someone slightly senior—to review your paper. You’ll be amazed at how insightful the comments will be. Friends don’t let friends go unedited. And offer to return the favor. Editing the work of others will make you a better writer.

Sleep on It.

Take a long break—and get a good night’s sleep—before this final review. Writing ferments as it ages, so the more time you leave between writing and editing, the better your editing will be. Why? Because when you finish writing, you are still too close to your written words to judge them objectively. You need to put time between you and your writing, so that time can break your love affair with your own words. For this final edit, you must take off your writer’s hat and read as if you were a reader seeing your words for the first time. Only time will give you this objectivity. You will be amazed at your insight if you approach your deep editing from a healthy distance.

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And that’s it. The three essential steps for deep editing. First, clean up your sentences. Second, edit for structure. Third, step back, play lawyer and make it sing.

I hope you found this series helpful!

-Marie

 

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Step Two of Deep Editing: Edit for Structure

Posted: June 14th, 2012 | Author: | Filed under: Editing | Tags: , , , , | No Comments »

As we discussed in an earlier post, the first step of deep editing is sentence-level editing. In sentence-level editing, you should say each sentence aloud to cure clutter and grammatical errors and to edit for plain English. Now, let’s move on to the second step of deep editing—structural editing.

Structural Editing

The craft of legal writing becomes an art through the masterful use of structure and structural editing is your most important and most challenging task. Remember the Three Essential Rules for Writing? Of these three rules, leading from the top is perhaps the most important rule. It is also the essential rule for structural editing.

First, Focus on the “Opening.”

Since the opening is the most important part of any paper, begin your structural edit by focusing on the opening.

  • Does the paper “open” in the first page and a half? Or, better yet, the first paragraph?
  •  Does it begin by explaining the background story in two or three sentences? (Who are the players? How do they know each other? What went wrong?)
  • Is the issue obvious from that background story? If not, have you spelled out the issue separately?
  • Does the paper lead with a strong, confident conclusion? Have you stated that conclusion in plain English? Is there a separate heading that screams Conclusion or Answer so that the reader can find the conclusion easily?
  • If the reader were to read only the opening, would the reader understand the paper?

Second,Work your Headings.

Next, pull your headings onto a single page to be sure that your legal argument flows logically and leads from the top. Remember that headings represent a higher layer of writing than the body of your paper, so you should proof them separately to be sure that they reveal a strong foundation.

  • Does the paper lead with the most important arguments?
  • Are the main points highlighted with Roman numerals or primary headings?
  • Are subsidiary points identified by indented subheadings?
  • Does each heading lead logically into the next heading?
  • Are headings correctly numbered?
  • Do the headings run from general to specific?
  • Do the headings talk about people and events, rather than abstract legal theory?

Third, Review the “Body” of the Paper:

Next, turn to the body of the paper—the Analysis or the Argument. Again, use your outline, as captured in your headings, as the master document for proofing and fine-tuning the structure of your paper. If your outline is perfect, then the structural foundations of your paper are also sound.

  • Does the Analysis or Argument support the conclusion?
  • Does each section begin with an opening paragraph or sentence that summarizes the conclusion about that section in one sentence?
  • Does each paragraph relate to its heading? (If not, create new headings.)
  • Does each paragraph deal with only one topic? (If not, split the paragraphs.)
  • Does each paragraph begin with a plain-English lead sentence that summarizes the paragraph?
  • Does every sentence within that paragraph support that topic sentence?
  • Does each sentence say something new? (Although the body of the paper must repeat information in the opening, once you are in the body of your paper, each sentence must say something new. Repetition slows the reader’s movement through the paper. Each sentence must add value and push the argument along.)
  • Does the paper use signal phrases, such as for example, by contrast, similarly, again, or in particular to tell the reader the weight of a sentence? (But be careful to avoid beginning every sentence with a signal phrase or your sentences will sound formulaic.)
  • Do the paragraphs and sentences flow from general to specific?
  • Does the discussion of the case law clarify the “big picture” view of the research? Does it explain the weight of authority? The trends in the case law? The number of cases that address the issue?
  • Does the paper discuss the facts and result of the cases?

And Finally …

Finally, have you made recommendations and told your reader what to do next?

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Now we have talked about the first two steps of deep editing—sentence-level editing and structural editing. Next, we’ll talk about the final and funnest step of all. Synthesis! I can hardly wait! Stay tuned ….

-Marie

 P. S. My Book contains many more tips on writing.

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The First Step of Deep Editing: Cleaning Up Sentences

Posted: June 13th, 2012 | Author: | Filed under: Editing | Tags: , , , | No Comments »

Rewriting ripens what you’ve written.

—Duane Alan Hahn

Proofreading and editing are different skills. Proofreading is the tedious, scientific task of making your paper error free. I’ve posted earlier about proofreading, including Eight Steps for Proofreading.

But let’s talk now about the art of editing. Deep editing is part of the art of writing. It is the kind of editing that a good writing coach might do for you and the kind that so many of us avoid. Deep editing requires a systematic attack on your paper and an objective eye. While you must still keep your writing hat on, you must approach your writing as if you were a reader—or a plastic surgeon. Deep editing is precise, surgical work and it requires a finely tuned aesthetic sense and a good ear.

Block Out Time for Self-Editing

First, carve out  time for rigorous self-editing. Editing is the most important part of writing, so you are cheating yourself if you don’t build in time for editing. Professional writers are neurotic about self-editing, so they always leave time for editing. And editing will always take more time than you might think, so save a generous block of time.

Edit with a Vengeance

Approach your paper as if you were a slightly deranged reader with a knife in hand. Deep editing is driven by substance and it requires you to review for structure, substance, sound, readability, appeal, clarity, and integrity.

Review Your Paper in Print Preview

You cannot edit effectively unless you can see what your work will look like to your reader. Edit at least once in hard copy. If you refuse to print for environmental reasons, then at least review your paper in Print Preview or Full Screen Reading View.

Say Your Sentences Aloud

At this first stage of self-editing, your job is to focus on sentences and to cure clutter and check for plain English. Say each sentence aloud—if only in your head—to edit for plain English and to cure clutter and grammatical errors. If you are smart enough to make it through law school, the grammatical rules of modern English are embedded in your brain and ear. Saying your sentences aloud is the only tool an educated writer needs for effective sentence-level editing.

So read through your paper sentence by sentence and rely on your well-trained and unforgiving ear to weed out clutter and confusion. Click here for more tips on plain English editing.

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Once you have finished sentence-level editing, you can begin editing for structure. I’ll post soon about structural editing, so stay tuned!

-Marie

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Use Pattern—Such As Parallel Construction—to Make Your Work More Readable.

Posted: May 31st, 2012 | Author: | Filed under: Mission Critical Stuff, The Argument or Analysis | Tags: , , , | No Comments »

What Is So Special About Pattern?

The human mind loves pattern. Poetry, for example, touches us through its rhythm, cadence and rhyme before it moves us with its meaning or symbolism. But patterns not only make a work appealing, patterns can also make a work more readable.

How? Once the reader senses a pattern in the writing, the reader begins to look for that pattern—unconsciously—and the pattern pulls the reader along. So strong writers exploit the human mind’s inherent love of pattern by using pattern to make a work flow.

Forms? Seriously?

The most common examples of pattern in legal writing are forms. Because we are so familiar with common legal forms, they make reading easier because we know where to look in the form for certain information. But don’t be enslaved to a form. Use a form only if it follows the three essential rules of writing.

Pattern Within Prose: Parallel Construction 

Within our prose, the patterns may be subtle, but pattern is still a valuable tool. The key pattern in our prose is parallel construction.

If you begin a paragraph with a strong introductory sentence stating your conclusion about the law, your reader will become conditioned to look for that introductory sentence in following paragraphs. If you begin each section by stating your conclusion and then supporting and applying that conclusion to the facts, your reader will easily absorb later sections following a similar pattern. A section in which you discuss a rule then distinguish exceptions to the rule leads your reader to expect a similar order in later sections.

Use Pattern to “Condition” Your Reader

Once you have “conditioned” your reader by establishing a pattern, use that pattern consistently and your work will be more readable and accessible—even though your reader may not be consciously aware of the underlying pattern.

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Honestly, it took me many years of coaching to understand this all-important principle,  so I hope you find it helpful.

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