TIP 12 Develop the confidence to break the general principles of style — completely, ruthlessly, and shockingly — if doing so will help your client win.
Now that you’ve mastered the numerous tips and techniques in this chapter (and throughout this book), remember this: they are guidelines, not rigid laws. These principles will reliably sharpen your prose and your advocacy.
But sometimes the rules won’t meet your authorial needs. Develop your instincts and your confidence so that when a rule fails you in a particular situation, you can ignore it. As Strunk and White’s classic writing book, The Elements of Style, reminds us, “The best writers sometimes disregard the rules of rhetoric” to achieve “some compensating merit, attained at the cost of the violation.” So remember this chapter’s tips, but don’t follow them mindlessly. Your goal is to win your case, not to pass a writing test.This book demonstrates that many top lawyers break the conventional rules of legal writing when necessary to help their clients win. At a recent conference in New Orleans, I presented the findings from my research for this book. I reported that top lawyers regularly violate these supposed rules:
· A Statement of Facts should include every fact that appears in your Argument.
· Don’t use facts from outside the record in your brief.
· Don’t include law in your Statement of Facts.
· Your procedural history should be neutral.
· A brief should disclose all bad facts.
After my presentation, a professor in the audience rose to ask whether top lawyers were able to take liberties that other lawyers cannot risk — that is, whether their reputations allow them to shake free of the restraints that bind everyone else.
I rejected this view then, and I do so again now. These lawyers, whose works this book has focused on, do not make daring choices because they are successful. They are successful, because, rather than adhering rigidly to principles of good style at any cost, they focus on winning.
Writing is just a means to an end — victory.
FREQUENTLY ASKED QUESTIONS ABOUT WRITING TECHNIQUES
Note: The Frequently Asked Questions that follow address general writing issues, not merely the stylistic tips discussed in this chapter.
| Q. | How do I go from a blank page to a finished motion or brief? |
| A. | Lawyers use various approaches, but here is one common technique to write briefs and motions: |
· Review some materials from the case so that you have a rough sense of the dispute.
· Research the legal issue a bit, perhaps starting with treatises, cases that survey the main issue raised by your case, or the background section within academic articles.
· Begin a closer study of the facts of your client’s case.
· Conduct more legal research, cutting and pasting helpful passages into a word-processing file (and marking the sources of those passages). Add notes, thoughts, and concerns alongside these passages. Jot down any felicitous phrases that occur to you.
· Repeat the prior two steps for other major issues in your case.
· Begin to outline your argument. From then on, insert the useful research materials that you find into your outline so that your cut-and-pasted authorities and your notes are in the “right” place in your document. That way, when you sit down to write, most of the materials you need are already in front of you.
· Write one section at a time, moving to whichever part of the document flows most easily for you at a given moment.
· Move sections around, if necessary. Edit your prose. Hone your argument. Polish your citations. Read critically and fill in any gaps, such as missing citations.
· Send the draft to your team or your client.
· Gather, harmonize, and enter your team’s edits.
· Cite-check the brief to ensure that the citations are both accurate and supportive.
· Check the tables and the pagination (e.g., no headings at the end of a page).
· File.
| Q. | I am drafting a motion or brief, and the filing deadline is in two weeks. Can I give my draft to my boss on the morning that it is due? |
| A. | No! Supervising attorneys will usually want significant amounts of time to review drafts. Additionally, clients — especially clients with in-house lawyers—will often want to review drafts. Paralegals will often cite-check the filing, which adds time. Finally, printing the document may take a significant amount of time in courts that lack e-filing, such as the Supreme Court, where briefs must be bound as a small booklet. Moreover, you may need to prepare various attachments, such as declarations, exhibits, proposed orders, and certificates. So work backward from your filing deadline. How much time will you need to enter your client’s and colleagues’ edits? How much time will those people need to review the draft? How much time will you need to prepare the documents that accompany your filing? How much time will a printer need, if you need to file a hard copy of your motion or brief? Given all these considerations, it is not uncommon for a first draft to be distributed more than a week before the filing deadline. So plan ahead. |
Also, you might want to check in with your supervisor once you have outlined your arguments but before you write the entire document. Your boss can ensure that you’re on the right track, which can spare you from wasted effort.
| Q. | What happens if my client disagrees with the approach that I propose in my draft of a motion or brief? |
| A. | Be positive. Be diplomatic. Avoid committing to the client, but also avoid confrontation. Then take the issue to your supervising attorney. If you’re in charge, validate the client’s suggestions and then explain politely why you made your choice and what concerns you have about another approach. If the client still wants to raise a point (and if doing so is ethical), you will usually follow the client’s wishes or follow a middle path. Ultimately, attorneys usually revise their drafts enough to placate clients but little enough that the brief still reflects the attorney’s view about how to litigate the case. |
| Q. | My supervising attorney edits my work heavily. How can I deal with the defensiveness and frustration I feel when this happens? |
| A. | First realize that no writer finds it painless to have his or her writing shredded. Try to infer why your supervisor made the edits. You can usually learn from the changes if you study them — or, better yet, if your supervisor will explain them. Realize that the senior attorney may simply be writing in his or her own style or harmonizing your prose to sound like the rest of the document. Or the supervisor may worry that your argument, through excellent, might conflict with a position that the client took in another case. Or you might use a word that has a particular legal meaning. Pick one or two changes and ask the supervisor to help you learn by explaining those changes, as that approach is more focused than just asking your boss “what did you think of my draft?” or “how can I improve?” |
| Q. | How do I defeat writer’s block? |
| A. | Jump to a section that feels easier to write: you don’t need to write from the beginning — indeed, you usually shouldn’t, because writing a good Introduction before you’ve written the rest of your motion or brief is inherently difficult. Alternatively, try setting a countdown timer and write as much as you can during a fixed time. See, e.g., http://www.online-stopwatch.com/countdown-timer/ (last visited May 21, 2013). Or force yourself to write just one sentence. (Another one usually lurks behind that.) Also, try recording yourself and then have an assistant transcribe what you say. Or ask a friend to ask you questions about the case — “what’s the main reason your client should win?” — and then jot down your answers. In general, remind yourself of Chief Judge Alex Kozinski’s observation from a 2012 interview that I conducted: he knows that every word he writes will be rewritten multiple times, so he doesn’t need to agonize about creating immaculate drafts. Drafts just need to get finished. It is editing that will draw you toward excellence. |
1. Daniel Kahneman, Thinking, Fast and Slow 66 (2011).
2.Id. at 60.
3.Id. at 35.
4.The twelve tips that follow appear on the inside cover as Writing Tips 1 through 12.
5.See, e.g., Sean Flammer, Writing to Persuade Judges, 90 Mich. B.J. 50 (Sept. 2011) (conducting a test to see whether judges preferred writing samples that averaged 17.8 words/sentence over similar samples that averaged 25.2 words/sentence and finding that 66 percent of judges preferred the revision with shorter sentences.
6.Daniel M. Oppenheimer, Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly, 20 Applied Cognitive Psychol. 139, 156 (2006), available at http://web.princeton.edu/sites/opplab/papers/Opp%20Consequences%20of%20Erudite%20 Vernacular.pdf (finding, through five distinct tests, that “needless complexity in a text negatively impacts raters’ assessments of the text’s authors” — or, put another way, that trying to sound smart usually backfires).
7.This figure reflects a midpoint among writing experts who have advised lawyers how long their sentences should average. See, e.g., Gerald Lebovits, Sentences and Paragraphs: A Revisionist Philosophy, 77 N.Y. St. B. Ass’n J. 64 (Jan. 2005) (“Strive for an average length of 15 to 17 words.”); Mark Painter, Appellate Practice — Including Legal Writing from a Judge’s Perspective 7, available at http://www.plainlanguagenetwork.org/Resources/appellate.pdf (“Keep sentence length to an average of no more than 15-18 words.”); Joseph Kimble, Lifting the Fog of Legalese: Essays on Plain English 71 (2006) (encouraging lawyers to average 20 words per sentence); Bryan A.
Garner, Legal Writing in Plain English 58 (2001) (“[Y]ou should have some thirty-five-word sentences and some three-word sentences, as well as many in between. But monitor your average, and work hard to keep it to about twenty words.”) (emphasis added); cf. Richard C. Wydick, Plain English for Lawyers 36 (5th ed. 2005) (“[T]he average length of your sentences should be below twenty-five words.”) (emphasis added).8.Here’s an example of the overwhelm-your-reader-intentionally approach, courtesy of Justice Antonin Scalia, who was rejecting the suggestion that a legislator’s decision to vote for a statute reflected an intent to advance religion:
In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill’s sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted “yes” instead of “no,” or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.
Edwards v. Aguillard, 482 U.S. 578, 636-637 (1987) (Scalia, J., dissenting).
9.See Kashmir Hill & Elie Mystal, Quinn Emanuel Associate Has Reservations About “Redskin” Victory, Above the Law, May 19, 2009, http://abovethelaw.com/2009/05/quinn-emanuel-associate-has-reservations-about-redskin-victory/.
10.Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 228 (2011); see also Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 289-290 (2d ed. 2004).
11.Petitioner’s reply brief from Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008).
12.Novelist Ray Bradbury’s work exemplifies the risk of using too many strong verbs. The following passage comes from Something Wicked This Way Comes (1962). I have italicized the monosyllabic verbs:
We salt our lives with other people’s sins. Our flesh to us tastes sweet. But the carnival doesn’t care if it stinks by moonlight instead of sun, so long as it gorges on fear and pain. That’s the fuel, the vapor that spins the carousel, the raw stuffs of terror, the excruciating agony of guilt, the scream from real or imagined wounds. The carnival sucks that gas, ignites it, and chugs along its way.
13.William Zinsser, On Writing Well 12 (7th ed. 2006).
14.Gerunds end in -ing and function as nouns. For instance, “The filing [of what? by whom?] occurred in early 2013.”
15.Nat’l Ass’n of Regulatory Utility Com’rs v. U.S. Dept. of Energy, 680 F.3d 819, 820 n.1 (D.C. Cir. 2012) (Silberman, J.).
16.For a useful list of jargon and wordy phrases, see Legalese, TransLegal, http://www.trans-legal.com/drafter/legalese (last visited Mar. 26, 2013).
17.See, e.g.,http://cdn.abovethelaw.com/uploads/2012/11/Merryday-Order.pdf (last visited Mar. 26, 2013) (blasting lawyer for failing to eliminate “redundancy, verbosity, and legalism”).
18.Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 211 n.23 (1973) (emphasis did not not not appear in the original).