Appellate Advocacy Blog

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

Monday, February 26, 2024

(Nearly) Everything You Need to Know About Legal Writing You Learned in Kindergarten

My almost six-year-old is in the middle of learning to read and write in kindergarten. I love seeing him pick up books around the house and start reading. He has also brought home several writing projects.  As I watch him learn to write and hear his teacher’s pedagogical approach to reading and writing, I am discovering that some key points that I try to teach the “big kids” (aka—my law students) find their origins in kindergarten.

Point 1: Tell a story. Much of my son’s writing accompanies some sort of picture. The goal is to draw a picture and then write a story that describes the picture. This is not dissimilar from the approach my son’s teacher has used with reading—kids are encouraged to use “picture clues” to help identify unknown words.  Similarly, storytelling is an important aspect of legal writing. Legal writers can use various parts of a brief—like the introduction or the statement of the facts—to paint a word picture about their client. Increasingly, it is becoming more acceptable for legal writers to even use actual pictures in briefs to show the judges key aspects of a case.  Likewise, in the argument section of a brief an author might use writing conventions like analogy and metaphor to help the audience understand key legal principles.

Point 2: Think about the role of punctuation. A few months ago when my son and I were reading together, he paused when we came to a set of quotation marks and informed me that the words in the quotation marks needed to be read in a different voice. He then proceeded to create a voice for the character and read the words. I was impressed that he recognized the role of quotation marks in a story. He is starting to recognize other forms of punctuation too.  For example, he knows that an exclamation point signifies emphasis. We haven’t started on the Oxford comma yet, but it is only a matter of time.

Punctuation plays such a key role in legal writing. While judges probably don’t read the quotations in your briefs using character voices, they do expect your quotations to be accurate and relevant.  Your reputation depends on it.  They also expect you to use limited quotations—only directly quote key language that can’t be summarized, like contract or statutory language. Long block quotes just don’t get read.  Other aspects of punctuation are important too—the Oxford comma, limiting the use of emphasis, and the proper use of dashes. If you need a refresher on punctuation, I highly recommend my colleague Diana Simon’s book The (Not too Serious) Grammar, Punctuation, & Style Guide to Legal Writing.

Point 3: Watch your capitalization. While my son generally understands that there are capital and lower-case letters, he uses them inconsistently. He is just starting to understand that sentences start with capital letters, as do some words. One of my major pet peeves when it comes to legal writing is the inconsistent use of capitalization. I consider myself to be a capitalization minimalist—when in doubt, don’t capitalize! However, I tell my students that I will generally only mark things incorrect if they are inconsistent when they capitalize. So, if you decide to capitalize something in your brief, be consistent.  It will make your brief look more polished.

Point 4: Think about the aesthetics of the page. Kindergarteners struggle with writing an aesthetically pleasing page. If I give my son a piece of unlined paper, his words and letters vary widely in size. With lined paper, his letters are more consistently sized, but he struggles with spacing between words. His words are either too close together or too far apart. His teacher has popsicle sticks in the classroom that he and his classmates can use to leave proper spacing between words—she calls them “spacemen.”

While I want to write an ode to two spaces after a period for this point, I am going to resist.  Rather, legal writers need to be mindful about how their words appear on a page, especially in the age of the digital reader. Pages should include sufficient blank or empty space to not overly stress the eyes. Paragraphs should be short.  Spacing should be proportional. A nicely formatted brief that complies with court rules makes a great first impression.

Point 5: Do you own work. A few weeks ago my son brought home a worksheet that had a small section crossed out. His teacher had written a note that he had copied off a friend. It was pretty apparent that the friend he had copied from was not as strong of a writer. Trying to suppress laughter, we talked to our son about the importance of doing your own work. Similarly, legal writers need to do their own work. That means don’t plagiarize and don’t blindly rely on AI. If your name is on a brief, you should feel 100% confident about every case citation and legal principle. Your reputation depends on it.

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I agree with everything you say. The “spacemen” are roughly 2 ems in the size of lettering that beginning writers usually use. As for sentence spacing, you are in good company: both the U.S. Supreme Court and the U.S. Government Printing Office (the best print shop I know of in the U.S.) use 2 ems after each sentence.

Posted by: Steven Finell | Feb 26, 2024 10:11:32 PM

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