Trouble! Conflict! Challenge!

One of the most common tidbits that successful writers pass on to the wannabees is to get your character in trouble–big trouble–and to keep them in trouble. Why? Because conflict and challenge make for good stories.

So how lucky are we lawyers? We don’t have to get our characters in trouble. They are usually already in trouble when they come to us. Conflict? It comes built into our cases. The adversarial character? Just look on the other side of the “v.”

And that is yet another reason why every legal paper should focus on the facts–the “story” behind the case that involves real human beings (well, sometimes  real corporations), with real problems that need real answers. Papers that focus on only abstract legal theory miss the chance to tell the real story that gives context to the legal question.

So do your papers tell a “story?”

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Think of Your Cases as Places

Shorthand phrases allow us to avoid cumbersome references to case law or procedural history. Think of your cases as places and use “here” to refer to your client’s case and “there” and “where” to refer to the precedent, as in “Here, the court held that . . . . ” or “There, the court refused to . . . .” Avoid phrases such as “the instant case”or “the present case.” They are clunky legalese. Simply say “this case.”

So think of your cases as places—although they might not be places you want to visit for long!

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Use “Signal” Words to Tell the Reader Where You Are Going.

Think of your argument or analysis as a line drive from point A to point B. Occasionally, you must detour to discuss an exception or a contradictory point. Your reader will appreciate directional signals at those transitions. ”Similarly,” “for example,” “in particular” and “in addition” let the reader know that you are developing the main point. “However,” “although” and “by contrast” show that you are taking a detour to discuss an exception to a rule or to distinguish opposing authority. “Therefore” signals a conclusion. “Again” tells your reader that, yes, you have already discussed this point so they can relax. These directional signals are powerful tools that let your reader know the value of a sentence before they read that sentence.

Here are some helpful “signal” words:

• First, Second, Third
• For example
• Similarly
• In particular
• By contrast
• However or But
• Again
• Also
• Therefore
• Finally (every reader’s favorite word).

But be careful not to begin every sentence within a paragraph with a signal word or your sentences will sound formulaic. Vary the form of your sentences occasionally. For example, instead of saying “Similarly, in Smith v. Jones, the court held that….” say “In Smith v. Jones, the court also held that …. ”

So are you sending good signals to your reader?

So Just Where does the Transition Go?

Unlike in civilian writing—where the transition often goes before the next heading—the transition in legal writing goes after the heading because the heading itself is a form of transition. Thus, the first paragraph or the first sentence after the heading serves as the transition to the new topic. Many legal writers mistakenly put the transition before the heading—a mistake that leads to cumbersome transitions, such as This memorandum will now address. . . . (Scroll down to see yesterday’s post on why sentences like this just don’t do anyone any favors.)

So don’t let your transitions wander to strange places. Do you know where your transition is tonight?

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A sentence that simply announces what you will do next is a waste of space and time.

Many writers try to transition by writing a sentence that simply announces what they are planning to do next. They write sentences like these:

I will now turn my attention to . . . .

A question still remains . . . .

I might add that . . . .

This paper next addresses . . . .

It is interesting to note that . . . .

A sentence that simply announces what you will do next wastes space—and your readers’ time—because it does not say anything new or add value. As we have discussed in earlier posts, you should use your “leads” to transition. If you have used your “leads” to lay out the structure of your argument, you do not need to waste a sentence telling your readers what the next point is. They already know, so you can simply leap into the next topic.

In my next post, I will turn my attention to . . . . OOOOOPS!

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One Lead Sentence Goes a Long Way.

A lead sentence that summarizes your argument serves as the transition not only to that argument. It can serve as the transition to later paragraphs, as well. If the reader already knows where your argument is going, you need not waste time on careful transitions between paragraphs later on.

Consider Justice Breyer’s transitions to his section discussing the interest in stake in school desegregation cases in Parents Involved in Community Schools, 551 U. S. 701 (2007). There, Justice Breyer used his opening sentence to summarize the three major elements behind that interest and then addressed each element individually. In this passage, his opening sentence establishes the bridge for transitions to later paragraphs. Here is how he begins four successive paragraphs:

“Regardless of its name, however, the interest at stake possesses three essential elements.”

“First, there is a historical and remedial element: an interest in setting right the consequences of prior conditions of segregation.”

“Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools.”

“Third, there is a democratic element: an interest in producing an educational environment that reflects the ‘pluralistic society’ in which our children will live.”

551 U.S. at 838–840 (emphasis added).

One lead sentence goes a long, long way . . . .

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Transition by Leading Each Paragraph with a Strong Topic Sentence

If you “lead from the top” by beginning each paragraph with a strong topic sentence, that lead sentence serves as a transition to the new topic. Indeed, strong lead sentences are one of the best transition techniques in your arsenal.

Consider these lead sentences from Justice Roberts’ opinion overturning the school assignment system in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007):

“The principle that racial balancing is not permitted is one of substance, not semantics.”

“Jefferson County phrases its interest as ‘racial integration,’ but integration certainly does not require the sort of racial proportionality reflected in its plan.”

“Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students.”

“The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals.”

“The reasons for rejecting a motives test for racial classifications are clear enough.”

551 U.S. at 732-735, 742.

Justice Breyer also used strong declaratory statements to transition between thoughts in his dissent in that same case. Note his focus on facts:

“The historical and factual context in which these cases arise is critical.”

“Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled.”

“In fact, the defining feature of both plans is greater emphasis upon student choice.”

“Experience in Seattle and Louisville is consistent with experience elsewhere.”

“Indeed, the consequences of the approach the Court takes today are serious.”

551 U.S. at 804, 805, 846, 849, 861, 865.

I know. It makes you nervous. You want to write a transition sentence before you leap into the next topic. But in legal writing, the transition goes at the beginning of the topic. Lead from the top. (Have I said that before?)

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The Truth About Transitions

Writing—like life and music—is hardest at the transitions, so many lawyers worry about how to transition effectively. But transitioning between sections and thoughts is easier than you may think. If you follow the principle of leading from the top, your leads all function as transitions. In other words, you already know how to transition. You just don’t know that you know.

An effective opening and strong leads make the work of transitioning later in the paper much easier. If you have opened your paper by “leading from the top,” you have already primed your readers about what to look for and you can spend less time easing them between sections because they already know where you are going. Headings and lead sentences also serve as transitions because they tell the reader what to look for in the section or paragraph.

Lawyers often spend too much time transitioning, not realizing that the form of legal writing enables us to transition quickly between topics. Because our readers are trained to be familiar with the forms in which we write, transitions between topics can be more abrupt than in civilian prose.

In my next few posts, I’ll talk about some of the techniques for writing strong transitions. Stay tuned!

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How to Structure a Legal Memo: Lead from the Top

The guiding principle for structuring any paper is to “lead from the top.” Why is leading from the top so important? Because leading from the top primes your readers by telling them what to look for in the rest of the paper. If you open your paper by telling your readers what is important, they will look for that information as they read. When you present that information later, your readers will seize on it and it will click quickly, like a puzzle piece snapping into the space that you have already prepared for it. Leading from the top is like the literary technique of foreshadowing. It prepares your readers for what happens later.

The best legal memos use FICA (or FICAR) as their basic structure. The acronym may be horrid, but FICA works because it leads from the top:

• Facts
• Issue
• Conclusion

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (the opening ends here) _ _ _ _ _ _ _ _ _ _ _ _ _ _

• Analysis
• (Recommendations)

The dotted line marks the end of the opening–the key real estate in which you have the sacred gift of your readers’ attention, whether you deserve it or not. Your opening should highlight what you want your readers to focus on as they read the paper. Every opening must do three things:

1. The opening must tell the “back story” so that your readers know the context in which the legal question arises. Who are the parties? How did they meet? What is the problem? Don’t go overboard. Three or four sentences is usually enough. Save the detailed facts for later.
2. The opening must make the issue clear. (If the issue is clear from the facts, you may not need to state the issue separately. Just go right into the Conclusion or Answer.) Don’t begin your issues with whether. Just ask a plain, simple question and put a pretty question mark at the end.
3. The opening must state your answer. This is all your readers care about. Label the answer clearly as Conclusion or Brief Answer and keep it short, plain and clean.

Informal papers–the kind that we all prefer to read–condense the entire opening into a single introductory section that explains the back story, the issue and the conclusion:

• Introduction and Conclusion

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

• Analysis

• (Recommendations)

If you use this format, be sure that your first heading screams the word Conclusion. Otherwise, you won’t get credit for reaching a conclusion.

How much time do you have to open? A page and a half. Your readers will tune out after that if you haven’t given them good reasons to keep reading. (Trust me on this. I read a lot of papers.)

If you have done your job in the opening, your readers will trust you and will cross that invisible dotted line and read your Analysis. And they will read intelligently because you have told them what they should be looking for.

Finally, if you can (and I think you can), finish by telling your readers what to do next. Make Recommendations. You don’t need to answer the ultimate issue in a case, but you should tell your readers what their next steps should be. Ask the court to dismiss Counts I and IV. Tell your colleague to depose Mr. Bigshot, to move to dismiss for lack of personal jurisdiction, or to interview Witness X, Y and Z. Tell your client what documents you need her to produce. Keep the ball rolling in the real world by being proactive and practical.

And that, my friends, will make you look smart and wise.

Substantive Headings: Little Helpers

Remember your poor, overworked readers–the ones who really don’t want to be reading your paper? Substantive headings are one of the kindest gifts you can give those poor souls. Why? Because substantive headings allow your readers to choose what parts of the paper to read and–even better–what parts of the paper to skip.

Again, “leading from the top” is a guiding principle for all professional writing. Headings are the “top” of your sections. They must tell your readers what the section is about. A well-written heading builds your credibility as a writer and pulls your readers into that section.

Substantive headings are also the road map to your paper. Even a 50-page paper becomes accessible if it is clearly divided into a few substantive parts. Headings tell your readers that you are presenting the material in manageable bites. And headings force you to lay out your words systematically rather than just spilling those words randomly throughout your paper. So in addition to labeling the standard structural sections of your paper (such as Facts, Issue and Conclusion), use substantive headings to explain what each section in your Discussion or Argument is about, and set off those headings with Roman numerals or a primary heading. (I’ll explain how to number headings later and I’ll also talk about what makes for a good heading.)

The bottom line? Be kind to your readers. Use substantive headings to give them an easy way into your paper–and an easy way out.

Headings help them on their way . . . .

CIRAC? Better than IRAC, but still not perfect.

After my last post complaining about IRAC, one twitter follower asked, “What about CIRAC?” It’s a good question and it is definitely heading us in the right direction.

In our world of strange acronyms, CIRAC stands for Conclusion, Issue, Rule, Analysis, Conclusion. (IRAC stands for Issue, Rule, Analysis, Conclusion.)

CIRAC is better than IRAC, but it’s still not perfect. Under CIRAC, the all-important Conclusion is presented early on, which is certainly a good thing and far better than presenting the Conclusion last, as IRAC requires. But CIRAC requires two Conclusions: an opening Conclusion and a final Conclusion. Good writers know that it is probably not wise to write the exact same paragraph twice in a paper. So, under CIRAC, when we write that second and final Conclusion, our instinct tells us to vary the language slightly. The careful reader notices the slight difference and ends up comparing the two Conclusions and asking “How does this final Conclusion differ from the first?” So the final Conclusion ends up undercutting the authority of the opening Conclusion–exactly the result we want to avoid. Except in a very long paper (say 25 pages or more), you should conclude once and once only. And that Conclusion belongs in the opening page and a half of your paper.

CIRAC also catapults the reader right into the Conclusion, without giving the reader any context first. The human mind craves stories–stories about real people and real problems. So it is far better to begin with one or two sentences of background facts that “set the stage.” Who are the parties? How did they meet? What’s the problem?

Rather than end your paper by simply rehashing the Conclusion, be action oriented. Finish by telling the reader what to do next. Tell the court to grant summary judgment for your client on Counts I and II. Tell your client to change the language in its Employees’ Handbook. Suggest that your assigning attorney (the one who told you to write that memo), depose Mr. Smith, Ms. Jones and Cousin John, but only after obtaining documents X, Y and Z.

And since we are trading strange acronyms, I’ll suggest SICAR or FICAR as the model for writing a paper:

• Story (or Facts)
• Issue
• Conclusion
• Analysis (this is where the cases go)
• Recommendations (as in what to do next).
  

I’ll talk more about SICAR (or FICAR) in upcoming posts and I’ll show how to simplify SICAR (and FICAR) into a more modern format.

I hope this helps. Thanks for the question!

IRAC? Reader Abuse!

Many law schools teach  IRAC—Issue, Rule of Law, Analysis, and Conclusion–as the format for structuring a legal memo. But IRAC is an unforgiveable form of reader abuse.

Under IRAC, the Conclusion comes at the end of the paper. Your poor, abused readers must suffer through pages and pages of legal analysis, without knowing where you are taking them, before they finally find the answer to their question. By then, your readers will be long gone–surfing the internet, checking e-mail, finding another lawyer.

How does any smart reader read a legal paper? Your reader will always read your opening paragraph. If  the conclusion is not stated in the first paragraph, the reader then looks for a heading that screams Conclusion. If the reader doesn’t find it immediately, the reader will scroll through your paper until he or she does find the Conclusion. Skip. Skip. Skip. Under IRAC, your reader finds the Conclusion buried at the end of your document.  Is this the way you want to treat your reader? Particularly a reader who is paying you to write? And do you really want your reader to skip over pages and pages of analysis?

IRAC betrays a stunning lack of confidence. It says to the reader, “Hey, I’m not sure I’m right about this, so I’m going to walk you through my analysis before I put the answer on the table.” (And it’s also confusing. Some students leave their writing program thinking that the C in IRAC means Cases.)

Avoid IRAC and put your Conclusion in the opening of the paper. If you can, put your conclusion in the first paragraph and label it Introduction and Conclusion.  (If you label it as just Introduction, you won’t get credit for reaching a Conclusion.) Or put it in a separate paragraph labeled Conclusion or Brief Answer or Look Here Dummy. (Well … maybe not Look Here Dummy.) But the Conclusion must go in the first page and a half of your paper. Save the detail for later.

I’ll post soon on what format to use instead of IRAC.

The Courage to Conclude

Be brave and take a stand. As you make the transition from law school to the professional world, the impartiality you were taught in law school may hobble your ability to be a bold, creative lawyer. Newly minted lawyers are so trained to analyze both sides of a question that they are often reluctant to reach a firm conclusion. But meaningful advocacy requires that you go beyond a slavish repetition of precedent and that you take a position and think originally. Clients and colleagues won’t appreciate spending thousands of dollars to learn that the answer to their question is maybe and a conclusion that says maybe is not worth the cost of the research. So qualify your conclusion if you must, but you must reach a firm conclusion.Your colleagues and clients are paying you to tell them what you think and you should give them their money’s worth.

The best conclusions are often simply a straightforward, one-sentence answer to the question. If your research discloses a definitive answer to a question, begin with yes or no. Yes if and no if are also acceptable provided that the ifs are fact specific, as in The client may pursue his discrimination claim if he files his notice with the agency by February 1. If the answer really is maybe, at least be definitive about being hesitant. Explain any split in the authority, state which view is the weight of the authority, and analogize and distinguish the facts that characterize each line of reasoning.

Assume your Conclusion or Brief Answer is the only thing your reader will read. Because it probably is the only thing your reader will read.

Do it early. A Conclusion or Brief Answer in the beginning of your paper “primes” your readers because it tells them what to look for in the rest of the paper. When you answer the question in more detail later, that explanation will “click” like a puzzle piece snapping into the space that you have already prepared for it. So put your conclusion at the beginning of your paper—in the first paragraph, if you can, and certainly in the first page and a half. Your reader will be long gone by the time you get to the middle of the second page.

State your conclusion in plain English. Imagine running into the attorney who assigned you an issue as she is getting off the elevator and you are getting on. You have only a few seconds to answer her question, How is the Widget research coming? Your quick answer is your conclusion.

Say the conclusion aloud. Saying the conclusion aloud will force you to use plain English and simplify.

Explain why. Your answer should not simply state your ultimate conclusion. It should also explain why you reached that conclusion. Your readers cannot decide whether they agree with your conclusion unless you tell them how you reached it. Telling why in the Answer establishes your credibility .

Avoid hedging language. Hedging language betrays your fear of reaching a conclusion and shows a troubling lack of confidence in your own skills. Avoid language such as I could find no cases on point, it is difficult to determine whether, it is far from certain whether or it is possible that.

Be original.  Although we must base arguments on precedent, a memorandum or brief should never be a simple précis of the cases.  “Wrap” the case discussion in your own conclusion about the research.

A conclusion is like the ribbon on a gift. We put the gift in the box, we close the box, and then we make it attractive by wrapping it in a ribbon.  Your readers see the ribbon first and it’s the ribbon that makes them want to open the box.

Citations: in text or in footnotes?

Put citations in the body of the paper—not in footnotes. Yes, citations are clunky and disruptive. But they are also a substantive part of legal writing because they show the weight and authority of the case you are citing. Therefore, case citations belong in text, where your reader can find them easily.

Some recent opinions follow a trend to move book and page references to footnotes. Although moving book and page information to footnotes may make the paragraph itself more readable, dropping citation information to footnotes violates the essential design principle of proximity because it requires the reader to jump back and forth between footnote and text to piece together the complete citation. Thus, footnotes defeat the goal of keeping the reader’s eyes moving seamlessly through the paper.

So if the case law is important to your paper—and the case law is essential in any research memorandum or any paper that will be filed in court—keep your full citation in prose. Although citations admittedly disrupt the flow of legal writing, it is more disruptive to require the reader to jump between text and footnote.

In business law papers, put cases in footnotes if your colleagues do so. Business law papers routinely drop citations to footnotes because transactional attorneys may be less concerned about the case law than about the structure of the deal. Follow the leader and use the format your colleagues use.

Never use endnotes. Citations should never go at the end of your paper. It’s just too far for the reader to travel.

Expect citation format to change for the better. As we move to a paperless world and our readers grow accustomed to reading briefs and memoranda online, our method of citing cases should change. My book talks about the changes that we should expect to see. . . .

Quote with Care.

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 may skip. 

Block long quotes. If you must quote a long 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.

Think of your cases as places.

Lawyers use shorthand to avoid cumbersome references to case law or procedural history. Think of your cases as places and use here to refer to your client’s case and there and where to refer to the precedent, as in There, the court held that . . . . or Here, by contrast . . . . Avoid phrases such as the instant or present case. Simply say this case.

Parentheticals: Should I or Shouldn’t I?

It’s always better to discusses cases in prose, rather than in parentheticals. Prose is cleaner and more readable. Also, the decision to discuss a case in prose or parentheticals signals that you have assigned a certain value to a case. Your reader will assume that you discuss the most important cases in prose and that cases discussed in parentheticals are less important. Read the rest of this entry »