“You don’t have a lot of confidence in the substance if the writing is bad.” — Chief Justice John G. Roberts
“The more paper you throw at us, the meaner we get, the more irritated and hostile we feel about verbosity, peripheral arguments and long footnotes.” — Judge Patricia M. Wald
Here is a common approach to legal writing: To avoid any potential claim of waiver, every possibly relevant fact together with all conceivably relevant legal concepts must appear somewhere within the four corners of your document. How individual words are strung together to form sentences and how sentences are assembled into paragraphs are mere “cosmetics” or matters of “wordsmithing,” which judges don’t much care about and clients won’t pay for.
Judges and legal professionals committed to improving legal writing believe that approach profoundly wrong. These judges and legal writing experts agree that a brief should be written with one goal: to persuade the court to agree with your position. With that objective as the pole star, style melds into substance and through clarity, brevity and plain English, the writer must strive to make the court’s task as easy as possible.
That goal is subverted when judges and their clerks must slosh through 50-word sentences, pages of fully justified text without paragraph breaks, intrusive block quotations, extended footnotes or 10-line headings formatted in all capital letters. When confronted with these visual disruptions and sentences that must be re-read to be comprehended, judges become irritated. And an irritated judge is less likely to agree with your position, regardless of merit.
Through their publications and seminars, judges and legal writing pundits have been trying to drive home the importance of clarity and brevity with near-religious passion. The most influential of these “plain English” advocates include Judge Ruggero J. Aldisert (Winning on Appeal), Bryan Garner (The Winning Brief, Legal Writing in Plain English, A Dictionary of Modern Legal Usage and many others), Steven Stark (Writing to Win) and Professor Richard Wydick (Plain English for Lawyers). Pennsylvania Supreme Court Justice J. Michael Eakin teaches extensively on appellate writing. His two-page “The Necessity of Clarity and Brevity in Legal Writing,” itself a model of clarity and brevity, urges lawyers to abandon “legalese,” eviscerate everything peripheral to their arguments, and embrace techniques common to all good writing.
Recognizing that lawyers achieve the highest-quality legal writing only through years of focused effort, these experts nonetheless point to a number of basic guidelines that, regardless of experience, are easy to apply and make any writing more persuasive.
Write short, precise sentences and then make them shorter.
Persuasive writing begins with clear, well-structured sentences. The experts agree that sentences must be kept short, with an average length of between 15 and 20 words. Eakin recommends 17 words as a ceiling, and urges lawyers to test themselves by writing a short sentence and then chopping it 20 percent more. Although readability is enhanced by varying sentence length, sentences approaching 30 words should be rare and must be extremely well structured.
In addition to brevity, persuasive sentences require the writer to find the most precise word. Choose strong, evocative, even unusual verbs that propel your narrative forward and paint a visual image. To avoid ambiguity, keep verbs close to their nouns in the standard subject-verb-object form, and keep modifiers near what they modify. Avoid adverbs and adjectives wherever possible, and always avoid clichés, hyperbole and “exaggerators,” such as “clearly,” “seriously,” or “obviously.”
All writing experts caution that the passive voice produces boring prose and wordy sentences. The passive voice should be avoided unless you want to shift emphasis from the actor to the act or the outcome — “the attorney was disqualified” — or where you don’t know the actor’s identity — “a shot was fired.”
Overuse of the “be” verbs — is, are, was, were — results in mushy, listless writing. Removing prepositional phrases, particularly those beginning with “of,” likewise reduces word count and improves sentence flow. Thus: “In a defamation action brought by a public official, the burden of proof of actual malice is clear and convincing evidence” becomes, “In a defamation action, a public official must prove actual malice by clear and convincing evidence.” Not, “The argument is an elevation of form over substance,” but, “The argument elevates form over substance.”
Good sentence structure is a hallmark of good writing. Sentence components have their own hierarchy. Independent clauses — which can stand alone as complete sentences — are at the highest level and are where the sentence’s most important information should appear. Dependent and modifying clauses are just that, and are the proper location for less critical introductory, descriptive or explanatory information.
A natural emphasis also falls on the words that appear at the very end of a sentence. Compare the subtle difference between: “By failing to present evidence of contributory negligence at trial, Jones waived his right to raise that defense in this appeal,” and, “Jones waived his right to raise contributory negligence in this appeal because he failed to present evidence of that defense at trial.” If we want to emphasize Jones’ waiver, the first is better; if we want to emphasize what Jones did at trial, choose the second.
Substantive headings and short paragraphs help the court visualize your argument’s logical flow.
Legal writing experts agree that good briefs begin with well-structured, substantive headings. In appellate briefs, the headings become the table of contents, which many judges read first. Headings must be short — no more than four to six lines — and must avoid incorporating the minutia of every legal argument that follows. But a heading should be more than just a legal conclusion. Don’t write, “The trial court erred in granting summary judgment.” Instead, provide key specifics: “The trial court erred in granting summary judgment because it failed to consider Smith’s testimony about the accident’s cause.”
Paragraph structure is also critical to clarity. Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing by Steven Armstrong and Timothy Terrell provides a toolbox of techniques for building effective paragraphs. A paragraph should open with a topic sentence. Instead of, “In McCulloch v. Maryland, the United States Supreme Court held …,” begin with, “The powers of the federal government are subordinate not to the states, but only to the people.” Note the generality and lack of detail or explanation. That is the topic sentence’s purpose — to propel the reader forward for the specifics that follow.
In addition to moving the reader forward, each paragraph should provide a link or connector — preferably in the first or second sentence — to what was said before. Sometimes a single word can serve that purpose; “accordingly,” “thus” and “however” are common connectors. But writers sometimes use these words to feign connections that don’t exist. It’s often better to make the connection explicit. For example, if your preceding paragraph discusses an adversary’s reliance on Palsgraf v. Long Island Railroad, the next paragraph can begin: “Because the harm here was foreseeable, Palsgraf‘s theoretical limits on tort liability do not apply.” Then proceed to explain why the harm was foreseeable.
Each paragraph should try to convey just one central point or theme that you want the reader to leave with. Where your paragraph includes parallel subpoints, visually depict that structure through lists, numbers or bullet points. Each sentence within a paragraph should flow into the next. Through helpful illustrations, Terrell and Armstrong devote an entire chapter of Thinking Like a Writer to identifying connecting techniques. These include: (1) using the same or related words in both sentences; (2) using connecting or contrasting words, such as “accordingly,” “nevertheless” or “but”; and (3) making thematic connections between adjoining sentences.
Individual paragraphs are the core chunks of persuasion. A paragraph’s natural emphasis falls on both its beginning and end. Everything in between must create a flow that makes it as easy as possible for the reader to move from your general concept to your specific conclusion. Where a paragraph’s sentences are connected, where the facts and legal propositions are accurate, and where the logic is sound, your argument becomes transparent, if not self-evident, and should lead the judge to agree with your conclusion not by brute force but through gentle persuasion.
Clean up accumulated clutter
Like DNA, over generations, legal writing has accrued lots of useless junk. But unlike DNA, in legal writing, junk continues to express itself. In any writing, the opening paragraph is paramount. But most briefs open with the standard rote: “And now comes plaintiff Acme Enterprises before this most honorable court, by and through his undersigned counsel.” These openings provide nothing of substance and require the reader to hunt for the real beginning. Replace this typical opening with a substantive, concise introduction. Likewise, conclusions should be more than: “For all of the foregoing reasons … .” Good conclusions summarize by re-emphasizing your key points and state succinctly and precisely what you’re asking the court to do.
A notorious example of legal debris (and Eakin’s pet peeve) is the ubiquitous doublet: “the two (2) defendants.” The usage developed to prevent the fraudulent alternation of handwritten transactional documents ($1,000 to $11,000). There’s not much danger of judges tampering with your numbers.
Garner devotes dozens of pages to simply identifying legalese and its close relations, “latinese” and “bureaucratese.” Among the more obvious yet common examples, replace the “the instant action,” with “this action,” or simply “here.” Does “and/or” clarify anything? Eakin asks, “Which do you mean?” There are dozens if not hundreds more, from “aforementioned” to “assuming arguendo” to “wherefore.” All are part of an accrued jargon that is toxic to good writing and a frequent signal of bad writing.
Eakin cautions lawyers that if he could edit briefs, he “would chop a quarter of nearly all of them, and three-quarters of some.” When picking up a brief, the first thing that Judge Patricia M. Wald looked at was its length. If long, Wald would tend to read quickly; if short, less quickly, or even slowly. If you are the author, you want slowly. Although commonly ignored, these judicial warnings against verbosity and repetition should be heeded.
Write Only to Persuade
In 1936, Yale Law School Professor Fred Rodell complained that “there are two things wrong with almost all legal writing. One is its style. The other is its content.” Legal writing experts nonetheless disagree about the source of the problem. Eakin suggests that the root cause lies with our email and texting culture, but bad legal writing well predates the Internet. Stark traces the source of legalese to economics and the belief that obscurity and vernacular somehow elevate and insulate the profession. Yet, it’s hard to grasp what interests are advanced through writing that fails to persuade.
There may be another explanation: that lawyers simply feel institutionally compelled to mimic their predecessors’ style. But the judges and experts recognized above universally agree that our predecessors’ style has worn out whatever purpose it may have served, if any, and that legal writers must focus their efforts on the singular agenda to persuade. And these experts collectively agree that the persuasive power of any legal writing is tied inextricably to its clarity and brevity. •
Thomas E. Groshens is a litigator with Sprague & Sprague, specializing in e-discovery issues and the application of emerging technologies to the legal practice.