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: 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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Nutshell Writing Tips: Say your sentences out loud.

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

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.

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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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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How to Be the Perfect Summer Associate.

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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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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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.

How to “Scrub” Hidden Metadata from Word Documents

What is Metadata?

Most Word documents contain hidden metadata that shows the history of the document. That data shows when the document was first created, who authored the document, total editing time, and the last time the document was modified. Even more troubling, if the document was edited in Track Changes, those comments and revisions may still be accessible even though you have turned off Track Changes.

You never want your opposing counsel or a judge to see a comment in your brief explaining that a certain case goes against your position, but that you have decided not to cite that case. And you certainly don’t want them to see a comment that may contain confidential information about your client. Indeed, you don’t want to share information that might seem harmless, such as the date you created the document or the amount of time you spent editing the document.

The PDF Option

If you are sharing a document that does not need to be edited or revised, save it as a PDF before sharing. The PDF will not show hidden metadata.

How to “Scrub” a Word Document

But if you must share a document in Word format, you’ll need to take some extra steps to “scrub” hidden metadata from the document. Indeed, you might want to “scrub” your documents as a matter of routine before sharing them with anyone outside your office.

First, you should instruct Word  to warn you before you save or send a file that has been edited with Track Changes:

• Click on the File tab
• Select Options
• Go to the Trust Center box
• Click on Trust Center Settings
• Click on Privacy Options on the right
• Check Warn before printing, saving or sending a file that contains track changes or comments.

Second, you must scrub the paper of hidden metadata. Turning off Track Changes will not scrub your paper of comments. Instead, you must use the Document Inspector to remove the hidden metadata. Here’s how:

• Click on the File tab
• Click Check for Issues in the Prepare for Sharing box
  
• Click Inspect Document
• Check four of the six boxes: (1) Comments, Revisions, Versions, and Annotations; (2) Custom XML Data; (3)Document Properties and Personal Information; and (6)(at the bottom) Hidden Text.
• The Document Inspector will then identify the types of hidden data in the document and give you the option to Remove All of each type of data.

The Document Inspector will not remove highlighting, so you must remove it yourself:

• Click the File tab
• Click Options
• Click Display
• In the box for Page Display Options, turn off Show highlighter marks.

Work from Templates to Avoid the Problem of Metadata

In The Lawyer’s Guide to Microsoft Word 2007, Ben Schorr offers a great suggestion for limiting metadata. He suggests that you avoid the common practice of working from existing documents, because existing documents may still contain metadata. Instead, he recommends that you work in your office’s squeaky-clean templates and copy passages from the donor document into the template as needed. (Every lawyer should have Schorr’s book on their desk. Here’s the link to the updated version: The Lawyer’s Guide to Microsoft Word 2010. ) But remember, if you work in Track Changes in the new document, you will have to scrub it when you are done.

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So never share your secrets. How clean are your documents?

(By the  way, my book, contains many more tips like this.)

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Eight Steps for Proofreading

1. Go to the Zone

Again, proofreading is a different skill than writing or editing and it requires a different mindset. As you take this final pass at your paper, you must resist the urge to think the big thoughts. Ignore content. Get out your magnifying glass and drop down to the level of sentences and individual words.

2. Divide Tasks

Don’t read your paper through from beginning to end and try to catch every error. Instead, approach each proofreading task separately. First, check spelling. Next, read sentence by sentence or paragraph by paragraph for syntax errors. (I suggest you read backwards. Read on.)  Next, check formatting and design issues.

If you approach each proofreading task separately, you will be sure that you complete each proofreading task and that you give each task the attention it needs.

3. Spellchck

Oops! I mean spell check. Spellcheck is annoying—and annoyingly smart. (Why does it remind me of the Recalculating voice on my GPS?) Spellcheck should be your front-line defense against embarrassing spelling errors. It won’t catch misused words, such as principal instead of principle, but it will catch most of your spelling errors.

Many lawyers avoid spell checking because Spellcheck highlights many legal terms as spelling errors. However, if you add these words to your custom dictionary, Spellcheck will stop chastising you every time you use these words. (To add a word to your custom dictionary, right click on the squiggled word and click Add to Dictionary in the pop-up box. If Add to Dictionary does not show up as an option, it’s because you have not yet created a custom dictionary. I’ll post on that fascinating topic later.)  Add common legal terms, client’s names and technical terms that you use frequently to your custom dictionary.

4. Read Your Work   s       l       o       w       l       y

Spellcheck will not reliably differentiate between common homonyms, such as there and their, or catch properly-spelled-but-misused words such as complaint, instead of compliant. So you must actually read your work at least once to catch errors. The key is to read slowly. But how do you slow your self down?

5. Read Backwards by Paragraph

Most of us are so programmed to work at top speed that we need a technique to slow us down to proofreading speed. First, print out your paper. Then work backwards from the end of the paper to the beginning. Some people suggest reading each line backwards or each sentence backwards, but that level of backwardness is too glacial for me. Instead, try reading backwards by paragraph. Treat each paragraph as if it were an island. Start with the last paragraph and read it through. Then move up to the second-to-last paragraph and so on. If you are really error prone, treat each sentence as an island and work backward sentence-by-sentence.

6. Put a Check Beside Each Paragraph As You Read

Once you are satisfied with a paragraph or sentence, put a check beside it. The hand slows the mind down, so manually putting a check beside each paragraph or sentence will force you to  read carefully.

7. Review Headings Separately from Text

Substantive headings are an editing tool because they verify a strong foundation. Therefore, even if your paper does not require a separate table of contents, treat your headings as a unique unit and review them separately. Are headings correctly numbered? (Again, confusing standard numbering will make your headings work against you, rather than for you.) Does each heading lead into the next? Are all headings written in parallel grammatical structure? Are subheadings correctly labeled?

8. Use Your Word-Processing Program to Help You Proofread

As you write, use word-processing features to avoid errors. Use the Autocorrect function to correct proper nouns that you often misspell, to be sure you are using your chosen identifying terms throughout, or to assure consistent usage (such as % instead of percentage or its instead of it’s). (To add a word to Autocorrect, click on the File tab/click Options/click Proofing/click Autocorrect Options/check Replace text as you type/fill in the word you want replaced and the word you want to replace it with/click OK. ) Set up Grammarcheck to require periods inside quotations. (Click on the File tab/click Options/select Proofing/in the box for When correcting grammar and spelling in Microsoft Word, click Setting/click Punctuation required with quotes/select Inside.)

Once you are done writing, use the Find function to weed out pesky constructions and common punctuation errors. Search for by to weed out passive voice and for ment and ion to weed out nominalizations. Weed out pesky adverbs by searching for ly. And keep a mental list of terms that you commonly misspell and then search for those terms. I can’t spell lose for the life of me, so I always search for loose as part of my proofing ritual.

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By the way, it took me forever to proof this post!

P.S. from the Shameless-Self -Promotion Department: My Book has lots more tips like this!

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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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Let’s get serious about the serial comma.

A tiny comma can be worth a lot, so let’s talk seriously about the serial comma.

What is the serial comma?

The serial comma is the comma before “and” in a series of words. Here is a serial comma in living color:

I like apples, bananas, and cherries.

What’s the rule on serial commas?

In the civilian world, the use of the serial comma is a style choice. Generally, the civilian American approach does not use the serial comma, while the British approach uses it.

Although the grammar police differ on this issue, most require the serial comma for technical writing. The New York Times Manual of Style and Usage, which rules in the civilian world, does not require the serial comma. But The Chicago Manual of Style, the U.S. Government Printing Office and Bryan Garner all endorse the serial comma.

What’s a poor, confused lawyer to do?

You, my friend, are not in the civilian world. The serial comma is always more precise. Because precision is  essential in legal writing, you should always use the serial comma.  You’ll never offend anyone by using it and, in the legal world, a single comma can be worth a million dollars.  Click here to see a case where a comma was worth a million dollars (although the comma at issue was not of the serial variety): http://n.pr/milliondollarcomma

In transactional drafting, the serial comma is a must. Although the serial comma may not be as essential in our prose writing, it’s easier to be consistent and use the serial comma in all legal writing.

But, but, but (for those of you who dream of other things) …

But if you are writing the great American novel, be aware that the serial comma compromises the pacing of a sentence. Consider the famous line by Robert Frost:

The woods are lovely, dark and deep.

The stately and majestic pacing of this line is lost once we add a serial comma:

The woods are lovely, dark, and deep.

A widely circulated story says that Frost’s publisher made the unforgivable mistake of inserting that serial comma when the poem was first published—and that Frost made the publisher reprint the book to remove the offending comma.  So if you expect to be the next poet laureate of your nation or if you are writing the next great American poem or novel, the choice is yours.

The Bottom Line?

In legal writing, use the serial comma. The money you save may be your client’s!

The Final, Final Word

And if you don’t believe me, trust Stephen Colbert. Here is his ringing endorsement of the serial comma: http://bit.ly/AAlUEx  (at 4:25) What more do you need?

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Cut the Clutter.

Don’t use five words if three will do. Glue words, such as of, by, and or, usually mean that you can pare your sentence down. For example, The orders of the shipping department were produced by Widget Company should be rewritten as Widget Company produced its shipping department’s orders. (By and of are glue words that should come out.) The crux of the argument turns on should become The argument turns on. By virtue of his ownership of the land should be pared down to Because he owned the land. Don’t state by way of explanation. Just explain. Whether or not should be unknotted down to plain old whether. This point in time means now. An ongoing problem is just a plain old problem. A workable solution is simply a solution and a fellow colleague is just a colleague.

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.

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.