Tuesday, January 13, 2015

Lawyers are poor drafters

Most lawyers are poor drafters, writes Professor Joseph Kimble of Western Michigan University-Cooley Law Kimble 2015 School. In a recent article, Kimble identifies two key reasons for this: law schools have tended to neglect legal drafting, and lawyers often mimic the antiquated language in form books and poorly-drafted statutes. To illustrate the problem, Kimble offers a court order prepared by lawyers and judges at a recent symposium. Displaying the order and his revised version side by side, he points out, among other things, that the original has 125 words more than the revision; the original includes several legalese phrases, such as pursuant to; and the original includes unnecessary cross-references.  For his full analysis, see You Think Lawyers Are Good Drafters? in the autumn 2014 issue of The Green Bag.



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As a retired judge, the most common fault is saw in most of the briefs I read was that they failed to begin with a statement of what was wanted from the Court. All too often, briefs begin with a long recitation of background facts, or an emotional diatribe against the opposing party or counsel, without any specific request for relief that would put things into context. One of the best pieces of advice I received as a young lawyer was that a brief should consist of an introduction that requests specific relief, followed by a body that explains how the material facts and applicable law require that result, followed by a conclusion that states against the specific relief requested. Simple advice, but if it were followed consistently, the quality of the average brief would jump 100%.

-- Judge Benjamin R. Norris (ret.)

Posted by: Judge Benjamin R. Norris (ret.) | Jan 22, 2015 6:10:09 PM

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