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How to write like a lawyer (a good one), at least according to a PA SCt Justice

January 3, 2012

2. Law

How to write like a lawyer (a good one), at least according to a PA SCt Justice

An associate justice of the PA Supreme Court wrote an article entitled, “The Necessity of Clarity and Brevity in Legal Writing.”  All due respect to one of our Supreme Leaders, but the article reads more like a reminder of the basics rather than one providing deep insights into litigation success.  Regardless, the basics – particularly coming from On High in Proximity to the Burning Bush – are valuable reading as we start a new year.

I remember leaving court in a faraway county.  Four or five local attorneys were gathered at the corner.  I caught with a Doppler Effect the conversation.  Discordant murmurs, then, “He didn’t even know how to propound a question!” followed by agreeing murmurs.  I smiled and crossed the street as I thought about the flagrant daisy chain behind me.  “Clarity and brevity,” Associate Justice Eakin seems to suggest in the title of his article, “is the goal.”

Eakin writes:

Simple words are most clear and least confusing. If 50 dollar words have a place, it is a small place.

Let’s take the daisy-chain boys’ example above:  “He didn’t even know how to propound a question!”  “Propound” is a verb (good so far) that means “to put forward (an idea, theory, or point of view) for consideration” (ut oh!).  Restated:  “He didn’t even know how to put forward an idea, theory, or point of view for consideration in the form of a question.”  Smirk.  That’s a rather broad indictment!  Which is it, lads – an idea, theory, point of view, or all three?  How about: “He didn’t know how to ask a question” or “He didn’t know how to properly form a question.”  To a lawyer, that relates it all.  We know that direct examination uses open-ended questions, and cross, generally, uses closed-end questions.  Lawyers don’t ask questions on direct that encapsulate too much information – that could be testifying and, at least, unclear.  Yes, there is a way to properly ask questions, but I believe that when a lawyer says “propound” he or she is making a too-general comment concerning a finite observation.  That’s loose.  That’s dangerous.

Eakin continues:

A good writer uses “after” instead of “subsequent to,” and “because” instead of “in light of the fact that.”

Those are important examples.  There’s an exercise I have used with my students over the years – 100 words.  Take any descriptive phrase … my favorite is “Cellar Door.”  Red door, falling leaves, wooden chair, and so on also work.  Write a story using precisely 100 words.  At first, many writers find that they’re 60 or more words in and haven’t transited to the middle.  That’s a bad thing.  It takes several sessions to begin to see the wasteful patterns in our own writing.  Adverbs, you’ll see, should be the focus of terminal-disease research so we can find a cure; they need to die en masse.  I do this 100-word exercise regularly.  It’s interesting how lazy we all get in writing, and how only exercise can keep us sharp.

More on this point:

Clarity is advanced by concise writing — “brief” is not a misnomer. The average sentence has 17 words — make that a ceiling, not a floor. You may explain in detail at some point, but there should first be a condensed version that allows comprehension of what you are going to explain. More words lead to more vagaries, creating more latitude for different readers to understand your meaning differently.

Both of my comments above meet here – 100 words, and simple words.  How many attorneys have had to put on the ballet shoes during argument because something they wrote was pounced upon, only to know that the targeted portion of the writing was either not needed or could have been clearer?  To help avoid this problem, it’s important to have a paralegal that writes well.  A paralegal should be a writing partner.  Some attorneys see their law degree as a gateway to a path lined with the Trees of Knowledge and Insight.  Too funny.  If that were true, then they’d be able to teach their paralegals how to be critical writers.

Eakin goes on:

Judges do not want to read what they already know. Do not start a brief with Marbury v. Madison; history lessons and odes to the Constitution are as helpful as telling a motorist asking directions how the car was invented. While opinions sometimes trace the development of the law, opinions have a different purpose. A brief should get to the point. Do not write about the irrelevant — if the issue concerns jury instructions, the court does not want the dates of all the pretrial motions.

His point?  Know your audience.  Listen to yourself closely as you explain a legal development first to a teenager, then your spouse, and finally a colleague.  Your words are different, as well as your assumption of prior knowledge.  Even your tone differs.  If you can’t grab it on the fly as you speak, then write it in letter form – just be sure to have them read the letters and tell you what they learned.

How do you bring all of that together into a legal brief?  Just as Eakin writes above – simple words, short sentences, and get to the point.  Use the teenager’s words, your spouse’s tone, and your colleague’s wealth of prior knowledge.  Then chop the hell out of your writing – 100 words, remember?

Associate Justice Eakin goes on to make several additional points, all of which are worth your time to read.

Do I consider myself to be a “good” writer?  I prefer “competent” (at best).  I study writing.  I practice everyday in professional and personal modes.  I devote as much time to the writing skills of those around me as I do to my own writing.  I make mistakes; of course, I do.  I’m always learning.

When I write I treat it with the seriousness of handling a gun.  Any lesser standard then your pleading, brief, or client letter may as well be an unattended, loaded handgun.  Unfortunately, if it goes off, it’s usually pointed at the writer.

Post-script.  Justice Eakin writesFinally, a personal pet peeve — after writing a number, do not put numerals in parentheses. A judge who reads ‘twenty-five’ does not need an added ‘(25)’ to comprehend the number.”  Duly noted, Your Honor.  Thank you.

One of my pet peeves – which is violated in the first excerpt above – is here:  “If 50 dollar words have a place …”  What role does “dollar” play in that phrase, Your Honor?  Are there 50 words of the genus “dollar,” or are you trying to tell us that certain words are worth $50?  When you have a double modifier of an object, hyphenate the damn thing.  To wit, 50-dollar words.

And since it bugs me so much, I’ll add the violation in his first sentence:  “Writing skills have fallen victim to texting, email shorthand and the acronyms of social media.”  See it, or, more accurately, notice what is missing?  He presented a series of three, yet uses only one comma.  It’s common these days to bail on the second comma, and just as commonly wrong.  Consider this:  The bolts of cloth are colored blue, red and white and yellow.  We’re mislead until we’re told that the missing comma should be after red or white.  Why require your reader to backtrack or get more info to know what you mean?  As I read Eakin’s opening sentence, I did a quick check to ensure that “email” wasn’t intended to also modify “acronyms.”  It also threw me because he changed the structure of his phrases – “email shorthand” followed by “acronyms of social media” instead of “social-media acronyms.”  Arrggg …

You’re welcome, Your Honor.  Yes, sir, I’m done.  Th-that door?  Yes, sir, I’m leaving now.  Thank you. Have a nice day.  My best to Mrs. Eakin.  One more thing?  Of course not.  I understand.  You’re very busy.  Bye for now.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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