Sunday, September 15, 2019
Five Tips for Law Students to Become Effective – and Persuasive – Legal Writers
Learning how to write effectively and persuasively in a variety of legal contexts is among the most important skills needed to competently practice law. Indeed, a recent survey by LexisNexis that included 300 hiring partners and law faculty revealed that forty-one percent of attorneys and fifty-one percent of law faculty believe that writing is among the most important skills needed to successfully practice law. See BarBri State of the Legal Field Survey, available at: http:// www.thebarbrigroup.com/files/white-papers/220173_bar_researchsummary_1502_v09.pdf.
Put simply, excellent lawyers are also excellent writers. A lawyer’s ability to draft persuasive pleadings, motions, and briefs at the trial and appellate stage often determines the likelihood of success in a particular case and the likelihood that an attorney will achieve success in the legal profession.
Given the importance of developing effective legal writing skills, particularly regarding persuasive writing, aspiring and current law students should strive to perfect their writing skills before graduation. Below are five tips, regarding both style and substance, that will provide a solid foundation upon which develop competent persuasive writing skills.
- Rewrite and Revise
Great lawyers know that their first drafts of pleadings, motions, and briefs are not their best and final drafts. Instead, great lawyers focus on rewriting and revising their first draft to ensure that their work product is of the highest quality.
The rewriting phase consists of a macro or substantive edit. A macro edit involves reviewing and editing a legal document for large-scale errors or omissions, with a particular focus on the flow, clarity, and substance of legal arguments. During this stage, you should:
- Ensure that your document flows effectively, is concisely written, and is easy to understand (e.g., eliminate unnecessary repetition and extraneous or irrelevant facts);
- Ensure that you have stated the law accurately;
- Eliminate unnecessary exposition of legal doctrine (i.e., state what the governing law is, but avoid a lengthy recitation of how the law developed);
- Ensure that you have addressed relevant counterarguments and acknowledged weaknesses in your case where appropriate; and
- Ensure that you have a powerful introduction in which you clearly state the basis upon which your client should prevail and obtain the remedy you seek.
The revising phase consists of a micro or stylistic edit. During this stage, you should:
- Ensure that there are no grammatical and spelling errors (if your legal document has spelling or grammatical errors, it will detract from the credibility of your legal argument);
- Separate long paragraphs into smaller paragraphs (as a general matter, a paragraph should be three to five sentences);
- Identify and revise lengthy sentences (as a general rule, sentences should be no longer than twenty-five words);
- Eliminate unnecessary words (particularly adjectives), commonly confused words, over-the-top language, and artificial emphasis;
- Ensure that you use transition words effectively;
- Maintain consistency in verb tense; and
- Ensure that you are using the active voice,
- Be Concise and Keep It Simple
Judges are very busy and, with the assistance of their clerks, judges read countless motions and briefs. Given this fact, neither a judge nor a clerk desires to read pleadings, motions, or briefs that are unnecessarily verbose and lengthy. For this reason, be sure to eliminate complex, esoteric, or unnecessary words, Latin, legalese, lengthy words and phrases, and repetition from your documents. Indeed, the quality of an attorney’s writing directly affects an attorney’s credibility and, ultimately, the likelihood of succeeding on the merits. Consider the following example (as stated in a complaint):
"The defendant’s shocking and insulting statements, which, as discussed infra and as outlined supra, were false, malicious, and injurious, particularly given that the statements caused plaintiff immeasurable embarrassment and humiliation ipso facto demonstrate that plaintiff has stated a prima facie case that the defendant defamed plaintiff in an egregious manner."
"The defendant made intentionally false and defamatory statements that caused the plaintiff to suffer substantial damages."
The first sentence is fifty words and the second is sixteen words. Yet, both sentences convey the same meaning and make the identical claim. Put simply, when drafting a complaint, focus not merely upon what you are saying, but how you are saying it.
- Draft a Compelling Factual Narrative
Although the governing legal principles in a case are certainly important, the facts of a case largely determine whether a litigant is likely to succeed on the merits. Indeed, because legal rules or standards are often stated in broad terms, the application and interpretation of those principles depend on the facts of a particular case. For example, the Eighth Amendment to the United States Constitution prohibits the imposition of “cruel unusual punishment.” Whether a punishment is cruel and unusual, of course, depends on the facts, namely, the specific punishment at issue that a claimant alleges violates the Eighth Amendment. Likewise, basic contract law principles provide that a contract is not valid without the parties’ assent. Whether the requisite assent is present obviously depends on the facts of a particular case. As these examples demonstrate, the facts, not the law, most likely determine whether a client is likely to prevail. For this reason, when drafting a pleading, motion or brief, be sure to focus on drafting a compelling, detailed, and concise factual narrative in which you persuade the court that a ruling in your favor is the correct and just outcome.
- Address Unfavorable Law and Counterarguments, and Explain Why They Do Not Affect The Remedy You are Seeking
In most cases, the law will not completely and unequivocally support an attorney’s legal position. Rather, the relevant case law will often contain favorable and unfavorable decisions that create some degree of uncertainty regarding the likelihood of succeeding on the merits.
Importantly, when drafting a brief at the trial, appellate, or supreme court level, an attorney should never ignore unfavorable case law. Doing so is dishonest and strategically risky because, in most instances, the judge will find the law that a lawyer has ignored, which will damage the attorney’s credibility and the persuasive value of the attorney’s legal arguments. To avoid this problem, a competent attorney will acknowledge unfavorable case law and explain to the court why these cases do not undermine the attorney’s argument and the remedy that the attorney is seeking. In so doing, an attorney will retain credibility with the court and maximize a client’s chances of succeeding.
- If You Want to Become an Excellent Writer, Read Excellent Writing
If you want to become an effective legal writer, be sure to read excellent legal writing, which will enable you to observe, among other things, how experienced attorneys apply various persuasive writing techniques to maximizes their factual and legal narratives.
Law students who are interested in reading excellent legal writing can begin by reading John Roberts’ brief in Alaska v. Environmental Protection Agency, which can be accessed here: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.
Of course, these tips are not exhaustive, but they will provide a foundation upon which law students can begin to develop effective writing skills. Additional resources include the following:
Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates, available at: https://www.amazon.com/Point-Made-Write-Nations-Advocates/dp/0199943850
Bryan A. Garner and Antonin Scalia, Making Your Case: The Art of Persuading Judges, available at: https://www.amazon.com/Making-Your-Case-Persuading-Judges/dp/0314184716
Steven Stark, Writing to Win: The Legal Writer, available at: https://www.amazon.com/Writing-Win-Steven-D-Stark/dp/0307888711
Richard C. Wydick, Plain English for Lawyers, available at: https://www.amazon.com/Plain-English-Lawyers-Richard-Wydick/dp/1594601518