Words. Your Recipe for Effective Legal Writing

• Author: Bryan A. Garner
• Pages: 30-31

WORDS

Your Recipe for Eective

Legal Writing

Part one of a three-part series

BY BRYAN A. GARNER

Congratulations. You’re the

newest hire at your state at-

torney general’s ofce. They

advertised for an experienced

litigator with sound writing skills, and

you got the job. Your rst law job was

in this very ofce—and you know the

demands can be great. Now, after a

few years in private practice, you’re

among the most experienced litigators

in the ofce. After two days of orienta-

tion, you’ve just arrived for your rst

day of work.

It’s 8:45 a.m. Your supervising

attorney briey explains pressing needs

for the day: You’re handed three case

les, each with a 5 p.m. deadline. No

extensions are possible. One is a motion

to strike an expert witness’s testimony

supporting a summary judgment mo-

tion in federal court; one is a state court

motion for judgment on the pleadings;

and the third is a motion to consolidate

two proceedings in the state supreme

court: a mandamus petition and a

direct appeal.

Each motion will require an accom-

panying form of order, but none will

need afdavits or other ancillary lings.

You know all this from your experience

in state and federal courts.

Your predecessor resigned, citing

“burnout.” How will you fare?

The upshot of this series is to show

how an efcient and effective legal writ-

er must sometimes work.

Getting to work

The basis for challenging the expert

isn’t Daubert rationale but 28 U.S.C.

§ 1746. You have no clue about that

statute. The motion for judgment on the

pleadings, you’re told, is based on the

state’s immunity from suit on construc-

tion liens—that’s § 57.035(1) of the

state code. The motion to consolidate is

simply common sense: The two appel-

late matters are essentially identical,

but the appellant has led both a direct

appeal and a mandamus petition. You

can review the briefs to see that it’s the

same set of facts.

You ask whether any attempt has

been made to work out the motion to

consolidate with the other side. That’s

the only motion requiring a conference,

as you know, and your boss says she

exchanged emails three days ago with

opposing counsel, who opposed consol-

idation. It’s all in the le.

Your boss excuses herself, assuring

you that your legal assistant will help

le the papers as soon as they’re ready.

But the three deadlines are rm.

A far-fetched scenario?

If you think the circumstances I’m de-

scribing are outlandish, I can assure you

that these things happen. And there are

analogous situations in all walks of life.

Watch a few episodes of The Great

British Baking Show. It’s all about

skill, knowledge and efciency. The

immediate spark behind this column

was viewing an episode in which three

nalists—skilled amateurs—were asked

to make 36 desserts in two hours’ time:

12 Victoria sandwiches, 12 lemon-cus-

tard tarts and 12 miniature scones.

There were no recipes, and there was

no further explanation. The contestants

started with just our, fruit, sugar and

butter. The output was expected to be

perfect: each dozen uniform in shape

and size, the internal layers distinct and

gustatorily complementary, and the pre-

sentation aesthetically pleasing. Oh, and

each item had to be scrumptious.

denly, we feel small, insignicant, tem-

porarily immobilized. As author Emily

Esfahani Smith writes in her book, The

Power of Meaning, “Awe challenges

the mental models that we use to make

sense of the world. Our mind must

then update those models to accom-

modate what we just experienced.” As

we vibrate from the electrical charge

of awe, our minds sift and sort past

memories, striving to incorporate this

new powerful interloper. Social psychol-

ogist Barbara Fredrickson explains that

awe is so impactful because it teeters on

the precipice of safety; it blends positive

emotions like inspiration with other

sensations like fear. But in the end, awe

is self-transcendent. Awe can ignite

positive change in the way we view the

world and how we t into it.

Legal communities might consider

cultivating experiences that ignite col-

lective awe. Even during the pandem-

ic, can we inspire one another to get

outside and appreciate an awe-inspiring

aspect of nature and then exchange

our reections on those experiences?

Can we connect with group members

in virtual musical performances or

artistic showcases? When we can safely

convene in person, can we team up to

work on humanitarian initiatives and

charitable projects in our communities?

We can further foster hivishness by

undertaking these activities in depart-

mental groups or established work

teams, engendering healthy and friendly

intergroup team rivalry.

Haidt emphasizes that excessive

self-focus can impede our happiness.

The legal profession could use some

hivishness. We are in this together; we

learn together; we grow together; we

build together; we hive together; and

we thrive together. Q

Heidi K. Brown is a professor of law

and director of legal writing at Brook-

lyn Law School. She is the author of

The Introverted Lawyer: A Seven-Step

Journey Toward Authentically Empow-

ered Advocacy (ABA 2017) and Untan-

gling Fear in Lawyering: A Four-Step

Journey Toward Powerful Advocacy

(ABA 2019).

Practice Matters | WORDS

ABA JOURNAL | APRIL–MAY 2021

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