Writing

• Author: Stewart I. Edelstein
• Profession: Commercial trial lawyer
• Pages: 49-94

49

CHAPTER THREE

WRITING

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

succeed, you must know how to write. This chapter di scusses general prin-

ciples for drafting ef fective legal writing and ex plains how to draft emails,

letters, internal memos, pleadings, motions, memos supporting motions,

jury inst ructions, appellate court briefs, and settlement agreements.

A. PRINCIPLES APPLICABLE TO ALL LEGAL WRITING

Although each document you craft has a specialized purpose, certain

basic principles apply to everyth ing you write.

1. Think before you write.

Sounds simple, right? Of course. But unless you think caref ully about

what you plan to write, you will not be doing your job. Much of what

you write is analogous to playi ng a chess match—you must think many

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 w riting it now? How am I going

to go about it? As Ralph Waldo Emerson observed, “Thought is the

blossom; language the bud; action the fruit behind.” Your “fruit” (i.e.,

what you write) will only be as tast y (i.e., effective) as the thought you

first put into it.

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2. Write for your reader.

Are you writi ng for a client, a colleague, opposing coun sel, a trial judge,

an appellate judge, or a jury? Tailor everyth ing you write for your reader.

3. Divide the writing process into discrete tasks.

Some legal writing is dau nting because so much is required and so much

is at stake. When taking on a substantial writing assignment, divide it

up. So, for example, if you need to draft a lengthy, comprehensive memo,

divide it into discrete task s: think ing it through, outlining your memo,

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

discrete task is ver y time-consumi ng, periodically take a break a nd return

to the task reinvigorated. A n additional benefit of this process is that

you get a boost of satisfaction—ps ychological positive reinforcement—

as you complete each task.

4. Choose words artfully.

Even students who can write in plain English when start ing law school

think , upon graduation, that to write “like a lawyer” t hey must use mul-

tisyllabic Latin-based words and h igh-blown prose. The best writing

uses simple words. For examples to emulate, read anything w ritten by

Oliver Wendell Holmes Jr., Benjamin Cardozo, or (for a modern exam-

ple) Chief Justice of the U.S. Supreme Court John G. Roberts. Even if

you do not agree with their judicial ph ilosophies, you must admire their

ability to convey complex ideas in plain English.

In choosing words artfully, follow these guideli nes:

1. Refer to parties nongenerically.

No: Third-Part y Plaintiff moved to dism iss Defendant’s claims

against Thi rd-Party Plaintif f as time-barred by the applicable

statute of limitations.

Yes : Jones moved to dismiss Smith’s claims against him as time-

barred by the applicable statute of limitations.

Reason: Referring to parties only by their status in the litiga-

tion is too abstract to be persuasive and can be confusing. Even

though it is crucial to identif y the status of a par ty in a submis-

sion to the court, once you have done so, use the name of the

party. For example, at the beginni ng of a brief, write, “Third-

Party Plaintiff Roger Jones (“Jones”). . . .”

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Writ ing | 51

2. Refer to parties with shortened references when

appropriate.

No: The Intergalactic Widget Company of America

Yes : I ntergalact ic

Reason: The fewer the words the better. Identify i ndividuals

and entities with a shortened reference when the name is long.

3. Use strong verbs.

No: A surge of power was responsible for the destr uction of the

coolant pumps.

Yes : A su rge of power destroyed the coolant pumps.

Reason: Strong verbs impact more forceful ly.

4. Avoid the passive.

No: The contract was breached by Roger Jones.

Yes : Roger Jones breached the contract.

Reason: The passive voice is weak and can result in ambigu-

ity. When editing, search for “by.” Unless “by” refers to a

location (“by the construction site”), it likely signals the pas-

sive voice.

5. Avoid jargon.

No: To ameliorate this endeavor, I am about to commence the

instant case (see draft complaint enclosed herewith); however, if

meaningf ul discourse regarding resolution of causes of action

hereinbefore discussed and pert inent thereto is not had forth-

with, failing same, we shall vigorously pursue all said clai ms at

law and in equity to the extent permitted by law.

Yes : I am about to bring an action as set fort h in the enclosed

draft complaint. If set tlement discussions are not productive,

I will pursue it vigorously.

Reason: Jargon interferes with comprehension and adds unnec-

essary words. Write the way you speak, i n plain English. Some

legal jargon is unavoidable, though, as when invoking t he doc-

trine of forum non conveniens.

6. Eliminate redundancies.

No: The end result of the meeting was a consensus of opinion by

a board vote that the merger should proceed.

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