Appellate Advocacy Blog

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

Tuesday, October 6, 2020

Professionalism in Legal Writing: Dos & Don'ts - Part 1

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts.

Do Maintain Proper Focus:

  • Do keep your purpose in mind while writing.

Why are you writing what you’re writing? What are you trying to accomplish? While the purpose of most of the writing of appellate advocates is straightforward—persuade the court and win your client’s case—we also write for other purposes. We write to clients, opposing counsel, co-counsel, court staff, prepare CLE materials, etc. We are trying to achieve different things and thus have different purposes, in writing to, or for, each of those audiences. We need to keep that purpose in mind for each thing we write.

  • Do tailor your writing to your primary audience, but be aware that others may read what you have written.

We must reach our audience. We are writing for our audience, not ourselves. It’s quite easy to get caught up in our own brilliance and the clever turn of a phrase, but if our audience can’t understand what we’re trying to communicate, we’ve failed as writers.[2]

We must strive to make our writing clear for our audience.[3] One thing that creates ambiguity and confuses readers is vague pronoun references. When a writer uses a pronoun, she knows who or what the pronoun refers to, but it may not be clear to the reader. Take this example: “Ed and Sonny went to dinner and he ordered the fish sandwich instead of a steak.” Who ordered the fish sandwich? Because I’m friends with Ed and Sonny, I know Sonny would always choose a steak over a fish sandwich, but my reader wouldn’t know that. To make the meaning clear to my reader, I should write, “Ed and Sonny went to dinner and Ed ordered the fish sandwich instead of a steak.”

We must communicate clearly to our primary audience while remembering that everything we write has a secondary audience. Sometimes we run into difficulties when we neglect or forget about, that secondary audience. Then our writing may end up as an exhibit, as did this email from plaintiff’s counsel in an insurance-claim dispute:

Email Ex

This is an extreme example—although not the most extreme, even from this twenty-page exhibit. But the point remains, we must anticipate and consider a secondary audience when we write.

So, do identify the purpose of your writing and do keep your primary and secondary audiences in mind while writing.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] Alexa Z. Chew and Katie Rose Guest Pryal, The Complete Legal Writer, 5 (Carolina Academic Press, 2d Ed. 2020).

[3] Id.

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