Appellate Advocacy Blog

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

Saturday, June 22, 2019

Playing to the Crowd: Simple Tips for Crafting Custom Legal Writing

Image result for the crowd

A little narcissism is good. At least that's what I am telling myself. - Andy Dunn

Usually, I share ideas for writing well--tips backed by science and experience. But today I ask that you suspend a few of those best practices in favor of something more important. Your reader's narcissism. 

Ok, narcissism is a touch strong. But the research is rife with studies showing that readers (like everyone else) love themselves. They love their own ideas; they love their own writing; they love their own voices. In short: If you could convince your reader that they actually wrote your brief, you would probably win every time. 

The truth is that we think that how we do things is the right way. Catch us in a self-reflective moment and, sure, we'll admit we aren't perfect. But in the heat of the moment--say, when reading a brief--we are the boss. Like at Burger King, we want the brief our way. Setting aside that you probably have some sense of this truth already, the science says so, too. This is probably why so many writing experts urge lawyers to "write for their audience."

But what does that mean? There's always some generic advice for using different tools for different types of audiences--for example, writing for judges versus writing for attorneys. 

Yet this cognitive science suggests we should be customizing more than that. Consider emulating how your particular reader approaches and interprets the law, and, perhaps more important, some of their writing style quirks as well. The science suggests that by writing like your reader, your reader is more likely to view you favorably, more likely to agree with you, and in the end, more likely to make you win. 

To do this right, you'll first need some writing samples from your reader. For judges, that is usually easy: Just do some online searches and pull five or so recent opinions. For most lawyers this step is easy, too--just ask them or anyone who works with them. 

With the samples in hand, run through the below list (or make your own) and jot down some of your reader's writing quirks. If you can't bring yourself to adopt some of these--fine. And I'm not suggesting you wholesale copy your reader's every whim. But you will be amazed at how persuasive your reader will find their own voice. 

1. Meaty headings or short ones?

2. Font and other typeface choices?

3. Heading numeral format (all caps? Etc.)?

4. Conclusions: Legalese or substantive?

5. Introductions in formal legalese or straight to substance?

6. One space or two after periods?

7. Paragraph length (shorter or longer)?

8. Sentence lengths?

9. Visuals like bullets and numbered points?

10. Traditional transitions (moreovers and furthermores)?

11. Deep introductions?

12. Extra-short sentences or paragraphs? (If not, they may be in the old-school camp that these are no-nos).

13. Authority or legal background in the fact section?

14. How do they like the structural layout of the document and white space?

15. Footnote use? Substantive footnotes?

16. Fresh and vivid words? Other writing style quirks?

17. Adherence to outdated grammar rules like never splitting an infinitive or starting sentences with conjunctions?

18. Policy-forward discussion at the start?

19. Types of policy—slippery slope, ideological, etc.?

20. Lengthy discussions of rules and authority or more focus on facts?

21. Approaches to interpreting case law? (full fact to fact exposition for every important case?)

22. Textual interpretation—textualism?

23. Legislative history?

24. Formal tone? Neutral? Pay particular attention to old-school legalese like “such as.”

25. Other legalese: Latin phrases, long formalisms at the start of the motion, etc.

26. Naming and definition conventions (e.g., acronym style).

27. Titles of documents (both in caption and digitally)?

28. Literally, anything else you notice in their writing!

The gold standard would be if your reader took a look and said to themselves, "wow, looks like I wrote it." 

Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

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