There's No Such Thing As "Legal Writing"

In law school, students take legal writing courses and learn, among other things, how to: (1) analyze and synthesize the law; (2) organize arguments using IRAC/CRAQ; (3) eliminate repetition and irrelevant facts from a legal document; (4) address counterarguments and acknowledge weaknesses in your case; and (5) cite to and rely upon legal authority. These skills are certainly useful and will help students maximize the persuasiveness of a motion or brief.

However, law students and lawyers should recognize that there is no such thing as “legal writing.” There is only excellent writing. In other words, whether you are writing an appellate brief, a fiction novel, a narrative non-fiction book, a textbook, a biography, or, for that matter, directing a movie, the principles and techniques of great writing remain the same.

Great writing has the following characteristics – regardless of whether it is in a legal context – and should be used by law students and lawyers to ensure the quality and persuasiveness of their legal documents.

1.    Hook the reader.

Why should readers care about what you have to say? To engage readers, you must hook them at the beginning of your motion or brief. This requires a powerful opening sentence, a compelling story and narrative arc, a vivid description of the critical events, and an appeal to the reader’s emotion (where appropriate) and sense of justice. Put simply, a great brief is like a great movie.

Consider the following examples:

Example 1:

In this case, the defendant is guilty of murder. On April 17, 2024, she murdered her husband. She did it because she wanted to be free to pursue another relationship with a man who refused to be with her while she was married. So she planned the murder and killed her husband in a very heinous manner that caused tremendous suffering and pain.

Example 2:

On April 17, 2024, at 10:45 p.m., the defendant stabbed her thirty-seven-year-old husband 124 times. Her husband screamed as he experienced unimaginable pain. He begged and fought desperately for his life. But the defendant ignored these pleas. Instead, she plunged a sharp knife into her husband’s body relentlessly. After being stabbed 123 times, seeing that her husband was still alive, the defendant plunged the knife into her husband’s chest one last time, ending a life that had so much promise. And she killed her husband solely because she wanted to be with another man.

The latter example, although not perfect, is more effective. It shows, in vivid detail, how horrible the defendant’s crime was and appeals to the reader’s emotions and sense of justice. After all, if you read the latter paragraph, how would you feel about the defendant? You’d probably want to convict her.

Also, make sure that your introduction is concise. If it is too long, you will lose (or at least annoy) the reader. Think about it: how many times have you gone to see a movie that was scheduled to begin at 8:00 p.m., only to have the movie begin at 8:40 p.m. because there were seven or eight previews? This understandably frustrates many moviegoers, and that frustration may affect how they view the feature.

You never want this to happen when drafting a motion or brief. If you write a lengthy introduction, you risk alienating the reader, and when that happens, it will affect the reader’s view of the credibility and persuasiveness of your arguments. Indeed, a critical part of hooking the reader is to get them to like the writer, which increases the odds that the reader will be captivated by and emotionally invested in your story (and give you the benefit of the doubt in close cases).

2.    Maintain your credibility.

Most people remember the Friday the 13th movie franchise, where Jason Voorhees mercilessly kills numerous groups of unsuspecting camp counselors. Although the first installment of Friday the 13^th received fairly positive reviews, the dozen or so sequels received almost uniformly negative reviews. Why? Well, at least in part, it was because no matter how many times Jason Voorhees was killed, including being axed to death, nearly decapitated, drowned, and ejected from a spaceship, he miraculously came back to life. What nonsense. The Friday the 13th sequels were critically panned because the story had no plausibility or credibility whatsoever.

Never make this mistake in your writing. For example, if you are representing a defendant who is charged with manslaughter for sending text messages to her husband that encouraged him to commit suicide, don’t say this:

The defendant is not responsible for this tragic death. For years, the defendant and her husband enjoyed a blissful marriage. However, the defendant’s husband suffered from depression for many years and, despite receiving treatment for depression and taking numerous medications, failed to improve consistently and substantially. Thus, when the defendant’s husband texted the defendant and expressed a desire to end his life, the defendant agreed that this was a prudent decision, and the defendant, despite the unimaginable difficulty, supported her husband’s choice. In short, this was an act of love. It was an act of mercy. And the defendant misses her husband every day.

Yeah, right. And Elvis faked his death. This is so utterly ridiculous that it requires no further explanation.

Additionally, make sure that your argument is consistent with and supported by the facts and law. Never misrepresent or mislead. Do not make arguments that fail to pass the smell test. Be honest with the reader. Acknowledge weaknesses in your case, such as unfavorable facts and legal authority, and explain why they should not affect the outcome you seek. After all, when you lose credibility, you lose your case – and reputation.

3.    Get to the point.

Over the years, many audiences have watched movies that, while in some instances quite good, could have been great except for the fact that they were insufferably long. For example, Titanic, which won the Academy Award for Best Picture in 1997, was a very good movie but far too long. Specifically, it took three hours and fifteen minutes to tell us what we already knew.

The ship sank.

It hit an iceberg.

There weren’t enough lifeboats.

People died.

Similarly, Pearl Harbor was needlessly three hours long. The Japanese attacked Pearl Harbor. It resulted in a tragedy of immeasurable proportions. We don’t need three hours to understand what we already know.[1]

Why are some movies too long? Because they include, among other things, unnecessary sub-plots, dialogue, and characters.

Poorly written motions and briefs make similar mistakes. They include irrelevant facts or law. They discuss legal issues that are tangential or entirely inconsequential. They incorporate unnecessary details. They are unduly repetitive. They cite five cases to support a basic legal proposition. In so doing, they tell a story that is more akin to Friday the 13th, Part 9 than Gone With the Wind.

When in doubt, err on the side of brevity rather than length, as unnecessarily long motions or briefs will bore a judge, damage your credibility, and decrease your chances for success. Get to the point quickly. Tell the court what you want and why you should get it. In many cases, less is more.

4.    Polish.

Your legal filings must be polished. They should have, among other things, no grammatical or spelling errors, artificial emphasis, unnecessary block quotes, and useless string cites.

If you cannot follow these rules, why should the reader trust that your arguments accurately reflect the law and facts?

5.    Appeal to common sense.

Judges are human beings, not robots. They do not apply the law to the facts in a hyper-technical manner. Rather, they want to do the right thing. Accordingly, and particularly where the law is broadly worded and can be interpreted differently, do not just argue that the law supports the result you seek. Instead, explain why it is the right and equitable result. In other words, where appropriate, incorporate policy arguments in your motion or brief.

***

Ultimately, do not think that legal writing is a separate genre or specialized form of writing. It isn’t. Focus on being a great writer, not a great legal writer.

 

[1] Certainly, some movies are justifiably lengthy, but only because the complexities inherent in the story and its characters require such length. Examples include Gone With the Wind and The Godfather, Part II.