Nutshell Writing Tips: Be Confident About Your Conclusion

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

Nutshell Writing Tips: Lead with the Conclusion

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

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

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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Seeing the Big Picture in the Cases

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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The Art of (Not) Quoting

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

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.

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

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 brief—where 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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Italicize case names. Yes, italicize. Don’t underscore.

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

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.

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

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A 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. Try these frequently used phrases:

• In Smith v. Jones, this Court squarely addressed. . . .
• The First Circuit has long recognized. . . .
• No reported cases hold that. . . .
• Only one reported case holds that. . . .
• The most analogous cases hold that. . . .
• The Ninth Circuit has long expressed a strong preference for. . . .
• Although this Court has expressed a strong preference for . . . , it has frequently allowed . . . under similar circumstances.
• This Court has entertained. . . .
• This Court has considered. . . .
• This Court is poised. . . .
• The Supreme Court has not been sympathetic to. . . .
• This Court imposes. . . .
• This District follows a recent trend. . . .
• The court cautioned against. . . .
• No court has directly addressed. . . .
• As a general rule, the courts have. . . .
• That decision represents an extreme departure from. . . .

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Skip the facts. Tell a story instead.

The universe is made up of stories, not of atoms.

—Muriel Rukeyser

Every case begins with a story—the story of who the parties are, what brought them together and what went wrong. Stories win cases, not lists of facts or citations. Why? Because story is the context in which facts happen. Stories have emotional appeal. We remember stories but we forget facts. Therefore, you are missing an opportunity if you just list facts without telling the story first.

In legal writing, the story always turns on the parties. Who are the players? How do they know each other? What went wrong? Who did what to whom? Your job is to look beyond facts and data to find that bigger story. And while most legal issues may ultimately turn on narrow facts, those facts will be lifeless and forgettable if you have not wrapped them in the larger context of a story.

Put the Story First.

Where do you tell your story in legal writing? It’s all about the story so the story always goes first—in the opening or the introduction. Again, who are the parties? What brought them together? What went wrong? Even if your paper requires a detailed statement of facts, the first paragraph should simply tell the background story. Save the gory details for later.

Keep the Story Short.

The story or background facts rarely require more than a few sentences.  Even a colleague who admonishes you to “skip the facts” will not object to two or three sentences explaining the context in which an issue arises.

Write for the Next Person to Pick Up the File.

If your reader knows your topic, you need not restate every fact. However, your target reader is not just the attorney who asked you to write the paper. You must also write for the next person who might review the file—and who may not know the background of your case. Two or three sentences that explain the background story give your work context and perspective and make your work useful for other lawyers researching the same topic later. A new reader should be able to understand your paper without needing to go back to the case file for basic background information. (Similarly, you need not explain general legal principles or statutes if your reader already knows the relevant law, although you may want to paraphrase the law for later readers.)

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Stay tuned for later posts in which we will talk about how to tell a human story.

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

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Make Your Citations User-Friendly: Avoid Using “Supra”

Use the Book Reference, Rather than Supra

Don’t make your readers look back in your paper to piece together a complete citation. Your goal should be to keep your readers’ eyes moving forward and to make every citation as user-friendly as possible. Supra citations—such as Smith, supra at 222—send your readers scurrying back through your paper to find the original book reference. They stop your readers eyes from moving forward and interrupt the pace of your writing.

Don’t send your readers on a wild goose chase. Instead, repeat the book reference and say Smith, 400 F.2d at 222. If your readers are likely to know the name of the case, skip the name and simply say 400 F.2d at 222.

Use Id. Citations—But Not Too Many

Even though id. citations may require your readers to look back in the paper, id. citations are less troublesome than supra citations. Because id. citations refer to the immediately preceding citation, your readers do not have to wander far to complete the citation. And id. citations are so short that they are rarely disruptive. So, even though you should substitute the book reference for supra citations, you can leave your id.  citations alone.

But use id. citations as an editing signal. Id. citations at the end of two or more consecutive sentences usually mean the sentences can be combined.

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So make life easy for your readers. Don’t send them hunting for basic citation information.

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Avoid Restating the Other Side’s Argument

Don’t fall into the trap of restating the other side’s argument as a prelude to attacking that argument. A true advocate never dedicates a sentence to explaining the opponents’ position.

For example, if the issue is whether your client has defrauded customers, don’t dedicate a sentence to the other side’s argument that “Courts will pierce the corporate veil where the corporation has defrauded its customers.” Instead, restate the argument from your client’s angle: “The courts will not allow a pierce where a corporation is adequately capitalized unless there are clear markers of fraud.” Or work opposing authority into an “although” clause to avoid dedicating a whole sentence to discussing that authority. For example, say “Although courts have pierced the veil where corporations have defrauded their customers, our clients never acted fraudulently.”

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Make your opponents do their own work. Don’t do it for them.

The Three Essential Rules for Writing

All my suggestions for powerful writing boil down to three guiding principles. And these principles apply not only to formal briefs and memoranda, but to the many mediums in which modern lawyers work—letters, email, blogs, newsletters and even PowerPoint.

The Three Rules

1. Use plain English.

2. Lead from the top.

3. Tell your reader what to do next.

Rule One: Use Plain English

We’ve all heard the common admonition to “use plain English.” Our clients speak a modern language and we should too. So if you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. Speak human.

Rule Two: Lead from the Top

The principle of “leading from the top” is the single, most effective tool for strong writing and the essential rule for structuring any piece of writing. If you open your paper by telling your reader what is important, they will look for that information as they read. When you present that information later, the reader will seize on it and it will click quickly, like a puzzle piece snapping into a space that you have already prepared for it. And the principle of leading from the top is like a fractal because it applies on large and small scales. Lead a paper with your conclusion. Lead a section with a substantive heading. Lead a paragraph with a summary sentence. Lead an email with a strong subject line. Lead the message itself with a summary sentence. Leading from the top is the key to tight, logical writing.

Rule Three: Tell Your Reader What to Do Next

Sane people don’t read briefs, contracts and business letters for pleasure. They read them because they are being paid to read them or because they have a problem and need to read them. What do they want? They want to know what to do next and your job is to tell them. What is the client’s problem and what should they do next? What relief are you asking the court to grant?  What do you want your colleague to do after reading your e-mail or your letter? Use your writing to make things happen in the real world.

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So one, two, three. Get set! Write!

(If you want a deeper explanation of these three principles, my book covers these principles and others in much more detail.)

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Capture your reader in the opening of your paper

You will win or lose your reader in the “opening” of your paper, so even the most brilliant Argument or Analysis cannot undo the damage wrought by a sloppy opening. What are the ingredients for a strong opening? Whatever format you use, you must do three things in your opening:

1. Explain the background “story.”
2. Make the issue clear. (The issue will usually be clear from the story. If it is not, you should ask a question.)
3. State your answer in big, bold neon lights.

In a substantive memorandum, you have—at most—a page and a half to “open.” The strongest writers “open” in the first paragraph. Avoid a vague discussion of abstract legal principles and frame your opening around your client’s facts.

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A better way to say “I couldn’t find any relevant cases. . . .”

When we research obscure or novel issues, we often find that there are no cases on point. Many lawyers then explain this lack of case law by writing, “I could not find any relevant cases.” That phrasing suggests that you lack confidence in your research. Why couldn’t you find any relevant cases? Did you not have enough time? Did Westlaw or LexisNexis self-destruct before you finished researching? Where did you look?

If you didn’t find it, it’s probably not out there. Since you are responsible for only the reported case law, simply say “No reported cases hold that. . . .” or “No reported cases address the issue of. . . .” These phrases show that you are confident about your research, even though you came up empty handed.

Always try to convey confidence and authority in your writing.

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In legal argument, avoid the mysterious “one.”

In legal argument, avoid the third person “one,” as in “one could argue” or “one might add.” Too many “ones” arguing can lead to ball bouncing—a distracting batting back and forth of ideas.  Also avoid “on the one hand” because it leaves the reader waiting for you to talk about “the other hand,” which is like leaving your reader to wait for an invisible shoe to drop.

Simply get to the point. Don’t say:

One could argue that the world is flat.

Simply say:

The world is flat.

Chances are that enough parties are already involved in your case, so you don’t need to add a mysterious, invisible player.

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Let your tone suggest integrity and wisdom.

You probably learned one of the most important rules of practicing law in kindergarten. Remember when your teacher told you not to use fighting words? It was wise advice.

In legal writing, you should aim for a tempered, balanced tone. Spare the vitriol and accusations. Wisdom and reason speak for themselves and need not hide behind fighting words. Let your pitch suggest your integrity and show the court that you are reasonable and worth dealing with. An understated tone conveys your honesty and candor. A shrill tone suggests that you should not be trusted.

And keeping a balanced tone should not mean that you sacrifice passion and zeal. For example, in his dissent from the Supreme Court’s recent decision allowing corporate spending in campaigns, Justice Stevens finished with a biting comment that nailed his thoughts in history. Showing that his ninety years have not diminished his convictions, Justice Stevens concluded: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 979 (2010) (Justice Stevens, dissenting) (also available at http://www.supremecourt.gov). Words are an advocate’s sharpest tool so let your convictions inspire your language.

So avoid the fighting words and play nice!

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