Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, December 3, 2017

The Immutable Rules

Blogpost

Like most folks who enjoy the craft of writing, I’m not a prescriptivist. At least, not generally. 

When I teach legal writing (and when I write something myself), I come from the perspective that most rules can be broken. If I were a chef instead of a writer, I would prefer the “pinch of salt” method to breaking out the teaspoons and following the recipe. It’s not that I don’t think writing rules help, it’s just that writing (like all human communication) is too complicated for inflexible regulations. 

That said, I do think there are some principles that, while perhaps not set in stone, are at least less fluid. And there is value in distinguishing between which of your writing rules are relatively unchanging and apply broadly to every document you write — and which you should follow only on occasion and with good reason. 

I imagine we all have our own set of principles that we stick to regardless of the document or case. When I had the pleasure of clerking for Judge Jennifer Dorsey, a phenomenal writer on the U.S. District Court bench, I will always remember reading through hers on my first day in chambers. I am not ashamed to say I stole several.

When I teach legal writing, I call mine the “9 immutable rules.” They occasionally change, as my views on writing and my writing process change. But in broad strokes, they have stuck by me for quite some time. I hope that you might consider adding a few of these to your own set. And that you might spend some time thinking about which of your rules deserve to join the club (I just broke a rule right there!). 

1. Reprogram your writing intuition

Just reading about how to write better isn’t enough. When you are in the flurry of writing and wrestling with complex legal questions, the last thing on your mind is some new stylistic flourish you wanted to try. Instead, set aside time to make new writing moves a habit — in other words, reprogram your writing intuition.

It starts with finding new moves you want to incorporate into your writing. Maybe you want to remember to use more concrete verbs, use transitions more, or to tee-up key issues with a rhetorical question. Make a running list of new writing moves that you want to use and keep it handy.

The second step is the tough part: making these moves part of your intuition. There are a number of things you can do: for a few weeks, take the set of moves you are working on and try to spot them in the things you read every day; force yourself to use the moves a few times each day before you start working on projects; use checklists after every project until the move becomes second nature — frankly, it doesn’t matter what methods you use, just take the time.

2. Take active control over your writing moves — down to each word

Writing: Develop the habit of asking why you are making the writing choices you are, get away from autopilot (at least in the editing phase). What does that word, or that sentence, do for you?

Reading: Develop a habit of noticing what moves are being used by the authors you are reading everyday — both legal and non-legal. Why did the author use that phrase? That structure? What works better for you?

3. Adhere to the 2-minute rule

Assume you only have 2-minutes of writing to make your case with any legal reader — because frankly, that may be all the time you have. Allocate your fire by homing in on those points in the law and facts that the case hinges on. Every extra word, sentence, paragraph, or point lessens the force of the things that matter.

This principle applies to your document as a whole (your introduction must pack a punch and include all the key rules and facts you need your reader to walk away with); section by section; and paragraph by paragraph. Pay attention to the beginnings. 

4. Adhere to the 1-read rule

Write so that your reader need only read each of your sentences one time to absorb all the information packed inside. Assume that forcing your reader to reread a sentence (or even a word) means you lost them forever. And indeed, it might mean just that. Ask folks to edit your work for this one-readability.

Remember that psychology tells us that, often, writing is a race to making mental connections. The first person to get a reader to simply understand a way of looking at an issue may prevail. That’s because once someone makes a logical mental connection, it has inertia — it takes more energy to break it.

5. Phase-edit over time

Remember that it’s impossible for the human mind to edit for everything in one sitting — you must break the process up into phases, with time to get away and get a “fresh reader” perspective.

So, perhaps, your first phase is editing for content; then you edit for your first ten style moves; then your next ten. And so on. 

6. Take control of the rules and use them to reduce the gray areas in your case

Build your own rules from authority; do not rely on cases or statutes to dish them up. Because only you can explain the rule in the way you have come to understand it after days or weeks of researching and turning it over in your head. Cases or statutory language won't do that for you on their own. A good-sounding quote won't necessarily cut it.

Explain your rules clearly enough, specifically enough, and simply enough so that the judge is given less discretion. Identify where a judge has discretion and figure out how to guide that discretion.

Try to build rules that seamlessly link up to the facts that matter.

To make sure you have built a strong rule, force yourself to write out difficult rules so that they come out the opposite way. Because that is what the judge will do.

Once you have created these nuanced rules, ensure your reader will see it; make them obvious in your document. This means putting your take on the important rules in your introduction, in the leads to your sections--anywhere your reader will see them. 

7. Prove your rules

In explaining rules and analyzing them, show each step of your reasoning process — like a math problem. Use all the persuasive tools at your disposal to convince your reader that the rules work in the way you say they do. Having a good explanation of the rules does you know good if your reader does not believe you. 

8. Hand hold

Keep in mind that your reader should never be lost at any point in your document. This means that every single fact, rule, or other part of your writing cannot come as a surprise.

Use umbrellas, signposts, and transitions. You must give everything context before you dive in.

9. Always tell a story: about the law and the facts

Your reader has heard your facts and your rules before, albeit slightly different versions. Think through how you can meld your story with the existing stories your reader likely knows in a way that tells a cohesive story.

So if you advocate for a new exception to a rule, explain this exception by fitting it into the existing story about how that rule works as a whole. We all process the world by converting information into stories. By ensuring you always tell the whole story, you ensure your reader will follow along. 

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views expressed above are solely his own and are not intended to be legal advice. 

https://lawprofessors.typepad.com/appellate_advocacy/2017/12/the-immutable-rules.html

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