Legal writing as good writing: tips from the trenches.

• Author: Spektor, Andrey

1. INTRODUCTION

   It is an old complaint that law school does not prepare students for the practice of law. (1) The criticism is often overstated--students are encouraged and indeed often required to participate in moot court, clinics, externships, and seminar courses--but not when it comes to writing. During their law school careers, students read thousands of pages of mind-numbing prose, often without the antidote of interesting and clear writing. We leave it to Bryan Garner and others to explain why old cases--whatever their analytical virtues and precedential value--should not serve as models of good contemporary prose. (2) Suffice it to say that judges and partners don't enjoy or have time to chew over young lawyers' prose to get at its meaning; they demand clarity and concision. And clarity and concision are what we should strive to produce--along with grace and creativity when the moment calls. (3)

2. THE TIPS

   Good writing is especially important today, when there is increased pressure for junior lawyers to stand out. Young litigation associates generally have fewer chances to showcase their writing skills than was once the case; for obvious reasons, time-intensive tasks like document review make their way down the chain a lot faster than do writing assignments. When writing opportunities present themselves, it is important to make the most of them because partners often peg young associates as stars based on memoranda and briefs that they write early in their careers. Clear writing often indicates clear thinking--or so many believe--and young lawyers who can think and write clearly are always in demand.

   Perhaps this explains why there is no shortage of useful literature on legal writing. We draw on this literature, as well as on judicial opinions and our own experiences as young lawyers working in high-pressure situations, to offer the following tips. We hope that you will find them useful when writing appellate briefs. But we also hope that you will find them useful even earlier in your career, when you are first asked to write a memorandum containing arguments that can be incorporated into a senior lawyer's brief.

   1. Weave Quotes into Your Text, and Use Them Only When Necessary

      The tendency to use block quotes is not unique to young associates. But block quotes are in fact something of a hallmark in the work of inexperienced legal writers. Whether they result from the young writer's fear of misconstruing the quoted language or her lack of confidence in her own voice, most of these cut-and-paste jobs should be reworked. Not only do block quotes confuse more often than they clarify, (4) they encourage skimming or even skipping. (5) You would do just as well (which is to say not very well at all) to print cases, highlight key passages, and hand them to the judge. (6)

      Judges expect advocates to advocate, not to recite cold language on the assumption that the reader will study it and connect it to the present case. If you intend to write a persuasive brief, then you must create a compelling, original work that draws on, rather than parrots, authority. (7) Of course, a long quotation from a primary source can be necessary. But when a quote is that important, warn the reader that it is coming, that it is critical to your analysis, and that it should be read carefully. And to encourage her to take the plunge, briefly tell the reader why it is worth her time and energy. A good rule to remember is this: Paraphrase when the source's exact language is not critical and quote only when it is.

   2. Use the Preliminary Statement to Tell the Judge Why the Brief Is Important and Why You Should Win

      The preliminary statement is an interesting creature in law firms. For partners, it's often a place to put their stamp on the brief. For associates, it's the part of the brief that is most often re-written by the partners to whom they submit their drafts. As a result, preliminary statements often feature a different writing style and even different arguments than those offered in the body of the brief. That's problematic for obvious reasons, not least of which is the confusion that the disconnect between the sections can cause.

      The significance of the preliminary statement depends on the judge (and her clerks). At least some judges tend to immediately dive into the meat of the brief. But for those judges who read the preliminary statement (and we suspect that most do), this section is extremely important. Yet some young lawyers, overlooking the demands of busy appellate dockets, do not see the value of summarizing something that is spelled out later in the brief. This leads many to use only a rote recitation of the relevant standard and the adversary's purported failure to meet it, thinking either that the remainder of the brief will do the rest of the work or that the partner will write something more enticing. That's not enough. The preliminary statement is the associate's chance to show off her creativity, to impress her supervisor, and to persuade the judge.

      We view the preliminary statement as carrying out two functions: to tell the judge why she should care about your brief and to summarize your arguments. The latter purpose is self-explanatory, and the former is often overlooked. For instance, many preliminary statements simply state that a discovery request is overbroad. But so what? Most motions seeking protective orders will say the same thing. Tell the judge what the dispute boils down to, and why she should rule in your favor. Would her ruling in your favor expedite the litigation? Would it be easy for her to do--just a matter of confirming settled law? Would it, in other words, be an almost effortless way to move the case along? Or would the judge be breaking new ground, writing perhaps on a cutting-edge legal issue? These are the types of appetizers that intrigue the judge and encourage her to chew your arguments.

   3. Avoid Throwing Mud at the Other Side--It Wastes Time and Distracts from Your Argument

      Litigation frequently stems from relationships gone awry, making it natural for clients to encourage their lawyers to throw low blows. But there is no place for that in briefs. (8) Ascribing bad motives to opposing counsel or using personal attacks makes you seem petty and only raises questions about the strength of your substantive arguments. If your argument was strong, the judge may think, why would you need to attack your adversary? Be forceful, be persuasive, and be professional. (9) And most importantly, stick to the law and the relevant facts. (10)

   4. Connect Your Arguments to the Legal Standard

      Arguments matter only if they move you closer to victory. You can argue persuasively that the sky is blue, but if you never explain why that matters, the judge is likely to skim the section of your brief arguing that it is so. Connect your argument to the legal standard. (11) Show the relevance of what you are trying to prove. Doing so has two primary benefits. First, it...