Drafting documents other than emails and letters

• Author: Stewart Edelstein
• Pages: 65-97

65

CHAPTER FOUR

DRAFTING

DOCUMENTS OTHER

THAN EMAILS

AND LETTERS

As a trial law yer, you devote most of your working hours to writing. To

succeed, you must know how to write. This chapter discusses general

principles for drafting effective legal writing and how to draft internal

memos, pleadings, motions, memos supporting motions, jury instruc-

tions, appellate court briefs, and settlement agreements. In appendix I,

you will learn about the overarch ing theme of cogency, featuring Molly

Cogent in action, tak ing on Ulysses S. Bombast in a spirited debate, and

then mentoring litigation associate Tim Smithers. As in other chapters,

this discu ssion assumes you are in federal court. If your ac tion is in state

court, comply with all applicable state court rules.

To learn how to write emails and letters, see chapter 3. To learn

about submissions to mediators and arbitrators, see chapters 6 and 7.

For guidance in the mechanics of legal writing, read the books on that

subject listed in appendix III.

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1. PRINCIPLESAPPLICABLETOALLLEGALWRITING

While each document you craft has a specialized purpose, certain basic

principles apply to everything you write.

Think before you write. Sounds simple, right? Of course. But unless

you think carefully about what you plan to write, you will not be doing

your job. Much of what we write is analogous to playing a ches s match—

you must think m any moves ahead before you make your next move. Ask

yourself reporter questions: What am I about to write? Why? What is

my objective? For whom am I writing? Why am I writing it now? How

am I going to go about it?

Write for your reader. Are you writing for a client, colleague, oppos-

ing counsel, tria l judge, appellate judge, or a jury? Tailor everyt hing you

write for your reader.

Divide the writing process into discrete tasks. Some legal writing is

daunting, because so much is required and so much is at stake. When

taking on a substantial writing assignment, divide it up. So, for exam-

ple, if you need to draft a lengthy, comprehensive memo, divide it into

discrete tasks: thinking it through, outlining your memo, doing legal

research on each issue, drafting each point, and editing. If a discrete

task is very time consuming, periodically take a break and return to

the task reinvigorated. An additional benefit of this process is that you

get a boost of satisfaction, psychological positive reinforcement, as you

complete each task.

Use simple words. Even students who can write in plain English when

starting law school think, upon graduation, that to write “like a lawyer”

they must use sesquipedalian words like sesquipedalian (look it up). The

best writing uses simple words. Humorist Will Rogers, in his unique

homespun style, drives the point home: “[H]ere’s one good thing about

language, there is always a short word for it. Course the Greeks have a

word for it, the dictionary h as a word for it, but I believe in using you r own

word for it. I love words but I don’t like strange ones. You don’t understand

them, and they don’t understand you. Old words are like old friends—you

know ’em the minute you see ’em.” For examples to emulate, read anythi ng

written by Oliver Wendell Holmes, Benjamin Cardozo, or, for a modern

example, Chief Justice of the U.S. Supreme Court John G. Roberts. Even

if you do not agree with their judicial philosophy, you must admire their

ability to convey complex ideas in plain English.

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Drafting Doc uments Other Than Emails and L etters | 67

Edit. Effective legal writing is hard work. Your first draft may be

pretty good, but you ca n do better. How? By completing your first dr aft

well before your deadline so you have time to improve what you wrote.

Then edit, edit, edit. There are no shortcuts. The flip side is that you

don’t want to be so consumed by the editing process that you are never

satisfied with your work, and miss deadlines. Even an artist painting a

masterpiece must know when to stop making brushstrokes.

Eliminate typos. If I had written “Elminate typos,” you would have

understood my meaning, but you would question how well I proofread

the manuscript of this book, which could cause you to question how

carefully I thought through what I wrote. So it is with everything you

write. A judge reading your brief f ull of typos wil l not be convinced that

you did a thorough job in your research, and may very well question the

soundness of your underlying thinking, for that matter. Read through

whatever you write before sending it out. Spell-check is useful, but it

won’t catch all your typos. If feasible, ask someone else to proofread

your work; a fresh look may very well catch errors you won’t. A typo is

just as discordant as a wrong note played by a musician in a wide open

solo during an orchestral performance. It mars t he entire work.

Write cogently. Before editing that subheading, I used 10 times as

many words to convey the same message. Here is the origi nal draft: “Do

not use any more words than you really need in anything you write, to

be more effective in your legal writing.” That’s fine for a first draft, but

not good enough. When you edit, elimin ate all words that don’t do work.

Heed Mark Twain’s advice by using “plain, simple language, short

words, and brief sentences . . . . don’t let fluff and flowers and verbosity

creep in.”

2. HOWTODRAFTINTERNALMEMOS

Know your assignment. In drafting internal memos for your colleagues,

you must understand your assignment, think through how you will

tackle it, do the necessary factual and legal research, draft using a for-

mat that is effective, and respond substantively to what you have been

requested to do.

What is your assignment? Make sure you have a clear understand-

ing of what the facts are, what iss ues you are to address, and the context.

When you first get t he assignment, ask questions to be su re you have the

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