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The Significance of Writing in the Legal SettingAs an attorney, the ability to write, proficiently, is imperative. Writing in the law is a form of art — advocacy in its most creative form. The goal is to paint a pathway that leads to an obvious conclusion, one that the reader could and should have reached on his or her own when given the same information.
2013-01-22 12:00:00 AM
As an attorney, the ability to write, proficiently, is imperative. Writing in the law is a form of art advocacy in its most creative form. The goal is to paint a pathway that leads to an obvious conclusion, one that the reader could and should have reached on his or her own when given the same information.
I have found over the years that there are numerous diverging opinions with respect to the proper style of legal writing in general, largely when it comes to formatting and vocabulary. In law school, I was taught to use a very conservative approach to formatting. We were told that the use of bold, italics, underlining and/or caps would not necessarily serve us well especially if combined. That is not to say that I was taught never to use these formatting options, just to use them conservatively.
In practice, I happen to be a fan of the fun options Microsoft Word has to offer, when used appropriately. Keep in mind, however, that "appropriate" formatting is clearly subjective and largely depends on one's audience. I appreciate appropriate formatting when both reading and writing, as it is a critical component of the organization and ease of reference that should be incorporated into every legal document. I have offered my opinion as to what I find to be appropriate formatting below.
On the other hand, I tend to side with what I learned in law school: the plain language style of writing when it comes to vocabulary, rather than the traditional "legalese" approach. In practice, I have read through many case decisions, contracts and briefs and just shook my head. As attorneys, we all understand legalese (hopefully), and I do believe that some degree of formality is necessary in legal writing. However, I don't think anyone actually enjoys the task of interpreting excessive archaic legalese. These days, outside of contracts and release agreements, especially with the use of electronic communication, it appears that we are progressing into the plain language style of writing, at least in this geographical region.
In addition to formatting and vocabulary, it is critical that our writing tells a story that the reader wants to hear one that is set forth in an organized, grammatically sound and efficient way.
A Writing Journey
When I first decided that I would be an attorney, in fourth grade, I had no idea what it meant. Obviously, I was not a huge fan of writing and did not understand the importance, even through high school. I remember my senior year of high school, turning in a paper that was required to be 10 pages. It was only one page. I remember thinking that even if I got a bad grade on the paper, I would still do well in the class based on an evaluation of my other work. I was right and still got a good grade. However, I did not realize how the faulty foundation would affect me in my professional future.
In college, I remember hearing my professors say that the practice of law is centered on reading and writing. I ignored their warnings, still thinking I could get through with the half-effort attempt that I had previously made in high school. And I did. Again, I did not enjoy writing, so I did what I could to avoid it. I graduated college and was accepted into law school; however, my writing skills were still less than adequate.
It was not until my first year of law school that I realized the importance of being able to write efficiently and grammatically correct. In law school, the expectations were high. I needed to remove the fluff, get to the point and be persuasive an art I had no idea how to achieve.
So, I went back to the basics. Adverb ... adjective ... linking verb. That's right, way back to the basics. I knew that in order to become a proficient legal writer, I needed to build the appropriate foundation. I needed to make sure I knew how to form an appropriate sentence and paragraph before forming an appropriate IRAC or CRAC analysis. And so I took a basic writing course. Embarrassing as it may be, I found it extremely helpful. Actually, it was a defining moment.
From that point on, I realized that being able to write is a gift something to be treasured and I took pride in writing. When I received an award for legal writing in law school, I finally became confident that this was something I could do.
People say everything happens for a reason. Nothing could be truer in this circumstance. When I graduated law school and finished my clerkship, times were tough. Many of my colleagues could not find jobs. I was graciously offered a position as an associate attorney for national counsel for several insurance companies. One of my primary responsibilities was writing. I wrote for three years in this position and loved every minute of it. Writing for me was like painting a picture: advocacy in its most artistic form.
I have since moved firms, and I do not write nearly as much as I previously did. Writing is not my primary function, as I am in court now more than ever. However, I still do write briefs in my current practice and blog occasionally.
An Approach to Writing
When I start to write, I begin by thinking of my issue(s) or concept as a whole. Where do I want to take my audience? Am I advocating, educating or just trying to make a point? How do I want my writing to be perceived? Aggressive and adversarial or light and humorous (clearly I would not use this approach in my professional writing)?
Then comes the research. There is very little that I write about where I do not do at least a little research, even when I am writing about my own experiences. When briefing, one of my favorite parts of writing is the research. I absolutely love the feeling of finding a case that applies to my facts. When writing for fun or professional growth, i.e., blogs and articles, I often interview friends or colleagues in addition to general Internet research.
Next comes some more thinking. How am I going to get my message across? This is where I often use creative formatting for organization when creating my outline. Some formatting techniques I find particularly effective and use a lot, in addition to bullet points and numbering, are headings and subheadings that are two of the following three: bold, italicized and/or underlined. After I've determined the flow of my story, I often get my thoughts on paper quickly and without reserve.
Following my first draft, I like to take a step back before revisions. I re-read the piece without making any revisions to determine if it is clear, organized and direct. Is there any portion that should be eliminated, supplemented or repositioned? Are there any creative tools that I can use to further strengthen my point or argument? One tool that I occasionally use when briefing is to cut and paste excerpts from original documents.
For example, in a case where an issue was the medical necessity of my client to use a cane, I cut and pasted a portion of the doctor's prescription ordering the cane. I would not suggest this technique for every audience and certainly wouldn't do it multiple times in one writing; however, if you can cut and paste conclusive evidence, it can be very effective. When using this technique, it is important that the excerpt or picture look clean and well positioned.
Before submitting any writing, I read it one last time for mistakes and grammar. Nothing can taint what would otherwise be an effective brief like two of the same word in a row, or a silly grammatical error that wasn't caught. It affects the writer's credibility and the readability of the piece in general. After I proofread, I often ask one of my co-workers or friends to review my writing to ensure that I've caught inadvertent mistakes.
Writing is something that I strive to be proud of. It is the one forum where no one can interrupt you while arguing and criticism is often futile. It's an expression that only I can truly own.
Maria Harris is an attorney with Martin Banks, focusing her practice on Social Security and long-term disability. She was recently elected the vice chair of the young lawyers division of the Philadelphia Bar Association.