Storytelling, The Sound of Music, and Special Teams: Revisiting Some Basic Legal Writing Techniques with Fresh Eyes.

AuthorKolinsky, Heather M.

I recently returned to teaching legal writing to first-year law students. Having spent the preceding years as an appellate attorney and a federal law clerk, I was surprised about how much of what I am teaching my students now resonates with me as a more experienced practitioner. I haven't thought about the "basics" of legal writing in a very long time. Instead, like many of us, it is something I do reflexively without really stopping to think about the steps I take while drafting motions, briefs, or orders. Being forced to think about how the parts become the whole has reminded me that revisiting the basics is a good way to refresh and reconsider the way we write every day.

The best thing about going back to that first introduction to legal writing, particularly for those of us who are more than a few years out of law school, is that legal writing scholarship and books are abundant. There is a wealth of exceptional articles and books generated by the academic legal writing community that provide ample resources for beginning writers as well as experienced practitioners. To that end, in addition to revisiting some of the basics of legal writing through materials I used this year to teach my first-year students, this article also highlights other legal writing articles and books that may be of interest.

This article revisits three important parts of any trial memorandum or appellate brief: the statement of facts, case illustrations, and point headings. First, the basics of each of these parts of persuasive writing are discussed, then suggestions for crafting these parts of persuasive writing are offered as a refresher.

Not "Just the Facts": The Power of Narrative and Point of View

A statement of facts in a trial memorandum or an appellate brief focuses on identifying and offering legally relevant facts, explanatory/background facts, and emotionally significant facts while at the same time avoiding irrelevant or unnecessary facts. (1) The facts should be accurately stated and offered in a chronological or topical order (and, if offered topically, written chronologically within the topic).

Legally relevant facts, good or bad, are those facts that, if they were changed, the outcome would change. (2) Explanatory/background facts help provide context for the legally relevant facts. (3) Conversely, irrelevant or unnecessary facts should be identified and discarded to ensure the narrative is not populated with unimportant details. Finally, emotionally significant facts give perspective and help a reader to understand what motivated a party's actions or reactions. (4)

While it is important that the facts offered be accurate, be properly included, and be in the proper order, the facts should also provide a point of view and should evoke a reaction from the reader. (5) The most common advice given to novice legal writers and employed by skilled legal writers often focuses on writing techniques--the use of points of emphasis at the beginning and end of sections, paragraphs, and sentences; the length of sentences; the use of dependent and main clauses; the use of active and passive voice; the use of detail to emphasize a fact, and the lack thereof to deemphasize; and word choice. (6)

However, a well-crafted, persuasively written statement of facts can be so much more. What often gets left out is the story within the statement.

Story is the strongest non-violent persuasive method we know. Tell me facts and maybe I will hear a few of them. Tell me an argument and I might consider it. Tell me a story and I am yours. That is why every persuasive enterprise from the Bible to television commercials relies on story. (7) Unfortunately, little attention is paid to explaining the "how" of drafting the statement of facts to tell a story. (8)

Lawyers can harness the power of storytelling by considering some of the elements of fiction writing--particularly character, conflict, and resolution--because those same elements are present in any legal dispute. (9) The character, your client, should be developed, the conflict defined, and the resolution made to "fit" serving both poetic as well as actual justice. (10) For example, your client should be likeable. This isn't always easy, but it starts with knowing your client and deciding how best to humanize the client or, if that is not possible, by seeking other means to frame the client for purposes of the story--by making the client a proxy for an ideal, humanizing a corporation through its employees or goals, or otherwise finding a favorable frame for your client's position in the brief. (11)

With character, conflict, and resolution as anchoring concepts, the legal writer should next consider how to both direct the reader's gaze and shape the story's point of view. In this, there is a connection between perspective and detail that helps explain the "how" in a more tangible way--it creates a thematic truth based on the legal writer's marshalling of the oft-fixed evidence for consumption by the factfinder and the court, packaged within a point of view. (12) The idea, of course, is not to create a work of fiction but to borrow the tools of fiction writers and use them to craft better stories.

To use point of view effectively, a legal writer should be intentional in choosing the degree of distance at each stage of the story. As she identifies character, conflict, and resolution, and as she finds the theme that carries the story within the statement of facts, a writer must then dial into the degree of distance at each stage of the story and avoid disruptive shifts of perspective. (13) Legal writing scholar Cathren Page provides a good example of establishing distance at specific stages of the story in an appellate brief using a passage from a brief for amicus curiae in Michigan v. Bryant, 130 S. Ct. 2138 (2010), a decision that addressed the admissibility of dying declarations in criminal cases. The amicus brief places the reader at the pivotal scene:

On April 29, 2001, Detroit police responded to a report of a...

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