SC Lawyer, Sept. 2004, #8. Paragraphs.

• Author: By Scott Mo\xEFse

South Carolina Lawyer

2004.

SC Lawyer, Sept. 2004, #8.

Paragraphs

South Carolina LawyerSeptember 2004ParagraphsBy Scott Moïse"Doesn't anybody know what a topic sentence is anymore? Hasn't anybody ever heard of a transition?" grumbled an associate flipping through a brief as I passed him in the hall. In the course of his four short years out of law school, this associate has already learned the frustration of reading disorganized paragraphs that say nothing. Because we do not want similar frustrations from our audience - judges, clients, and other lawyers - legal writers need to go back to basics and ensure that each paragraph is well organized and developed.

Paragraphs serve many different purposes, so they vary in length, structure, and organization. See Thomas R. Haggard, Effective Paragraphs, Parts I and II, South Carolina Lawyer, July/August 1999, at 12; September/October 1999, at 12. Nevertheless, legal writers should follow five basic rules, which can be varied to suit the writer's purpose:

1. Begin with a thesis or topic sentence. 2. State your support for the thesis. 3. Keep the paragraphs concise. 4. Use transitions between points. 5. Conclude the paragraph.

1. Begin the paragraph with a thesis or topic sentence: what is your point?

   Good thesis and topic sentences are like my brother's bird dogs: they unmistakably point out the subject. They set out the ideas that the reader will remember most clearly and, if written properly, will convince him to continue reading.

   The purpose of your paragraph will determine whether to use either a thesis or topic sentence. A thesis sentence states the writer's position in the paragraph. Probative paragraphs, such as in the "Argument" section of a brief, begin with thesis sentences. In legal writing you will use thesis sentences more often because the purpose is usually to advocate a position. An example of a thesis sentence is as follows:

   * Plaintiff's products liability claims must be dismissed because she has never identified a specific defect in the seat belt, a requirement under South Carolina law.

   On the other hand, a topic sentence states a topic without taking a position on the issue. Although it does not argue a position, the topic sentence does not need to be purely objective; in fact, in legal writing, the topic sentences may well be persuasive. Descriptive paragraphs, such as in a "Statement of Facts" or "Procedural History," begin with a topic sentence. An example of a topic sentence is:

   * The seat belt went through three distinct mechanical phases during the accident, beginning with the moment Plaintiff slammed her car into the tree and ending when the car came to a rest.

   Thesis and topic sentences are the most difficult to write because they summarize the point of the paragraph. Virtually always, the first sentence of each paragraph should be re-written after the first draft. Typically, the writer changes focus as the paragraph develops, and the original opening no longer correctly summarizes the point after all is written.

2. State your support for the thesis: why should we believe you?

   The main point needs support so that your audience will agree with your position. Therefore, each sentence subsequent to the first should accomplish the unified purpose of supporting the thesis.

   If you can develop an entire argument within one paragraph, use one of the two organizational methods of development that we learn in law school: the IRAC method (issue, rule, application of facts, conclusion) or the paradigm (conclusion, rule, rule proof, rule application). Both methods accomplish the purpose of making a point and supporting it in probative paragraphs and memoranda. Whatever method you choose to support your thesis or topic, make sure the development is complete, logical, and supported in the law.

3. Keep the paragraph concise: if the judge isn't happy, nobody is happy.

   Decide what best supports the thesis and discard the rest. Judges want lawyers to be brief. In a 1999 survey sent to all sitting federal judges, 90 percent of the responding judges said that conciseness is "essential" or "very important" to them. Kristen K. Robbins, "The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write," 8 Legal Writing 257, 279 (2002). Nevertheless, no judge believed that lawyers were "always" concise, and only 19 percent said they were "usually concise." Id. Judges specifically requested shorter sentences and fewer arguments, with one judge stating that good arguments are being "lost in the sea of irrelevance." Id. at 181. The judiciary clearly is annoyed by verbosity, and for litigators, an annoyed judge is the last thing we want.

4. Use transitions between sentences: let it flow.

   Show how each sentence connects to the others. Without transitions, writing is too abrupt and may leave the reader confused as to your point and where it is headed. Therefore, transitions are an effective way to show the reader how the ideas in the paragraph are related.

   In paragraphs, transitions are usually one word or a short phrase. For example, to show sequence or order, use words such as "first," "second," "third," "finally," "next," and "then." To show similarity use "also," "likewise," and "similarly." For contrast, use words such as "but," "however," and "in contrast." A conclusion may be indicated by "in summary," "consequently," and "therefore." Because transitions frequently make the difference in understanding a piece of writing, they should be used liberally.

5. Conclude the paragraph: everything must come to an end.

   The last sentence of a paragraph must be memorable. Typically, the thesis or topic sentence has already summarized the points of the sentence. Sometimes, however, the thesis may be delayed to the final sentence for emphasis.

   Other methods of conclusion are:

   * a simple restatement of the thesis (although this may be too repetitious for short paragraphs), * a transition from that paragraph to the next, foreshadowing and connecting what is to come, and * posing a rhetorical question for the reader.

   Putting it all together

   Assume the following hypothetical: Dean Richard Gershon is dean of the Charleston School of Law, located in South Carolina. Dean Sarah McCutchen is dean of the Law School of Charleston, located in West Virginia. They attended a Conference of Law School Deans at Kiawah Island, and both entered the annual Dean Dash 10K. Dean McCutchen beat Dean Gershon only by a matter of seconds to win the race. Later that night, Dean Gershon was heard laughing and saying, to the chairman of the prestigious Dean Martin Committee, that Dean McCutchen cheated and tripped him at the finish line. Subsequently, Dean McCutchen was not chosen to serve on the Dean Martin Committee, a position that she had wanted badly. Believing that Dean Gershon's remarks to the chairman were the reason she did not get the committee position, Dean McCutchen sued your client Dean Gershon in South Carolina state court for defamation.

   In a motion to dismiss the case, you make several arguments on behalf of your client. One argument is that a South Carolina Supreme Court case is directly in your favor as follows:

   Plaintiff cannot prove an essential element, malice, because Dean Gershon was clearly joking when he made remarks concerning Plaintiff. In Hess v. Honeycutt, 363 S.C. 16, 151 S.E.2d 9 (2003), the South Carolina Supreme Court held that when a party makes a statement that a reasonable person knows to be a joke, the party does not act in malice. In Hess the defendant made a reference to the plaintiff's employer concerning the plaintiff's propensity to lie; however, he made the remark while laughing and made no other disparaging remarks about the plaintiff. The supreme court upheld the jury's finding that the remark was a joke and, thus, showed no malice. Similarly, evidence in the case at bar shows that Dean Gershon was laughing and making fun of himself when remarking about Plaintiff, and therefore, any reasonable person would know that the remark clearly was a joke. Consequently, Plaintiff cannot prove malice, and the case must be dismissed.

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