Elmore Leonard died last month. The Peabody Award-winning novelist and screenwriter was hailed as a national treasure. Just the first few pages of any of his novels show that he was an author speaking with an unusual voice: lean, neat and unique.
In his 2001 New York Times essay “Easy on the Adverbs, Exclamation Points and Especially Hooptedoodle,” Leonard set out 10 rules for good writing. They are noteworthy, because nobody cut to the chase better than Leonard.
So what does this have to do with lawyers? Legal writing is seldom lean or neat and often does not cut to the chase. One notable exception is the highly influential Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, whose opinions read like a Leonard chapter. For all other lawyers, there is much to learn from Leonard, and his 10 rules apply equally to us, if we listen. But if, as he wrote, “the sound of your voice pleases you … you can skip the rules.”
- Never open a book with the weather. This means to avoid starting with: “On a dark and stormy night.” There is a legal equivalent. Do not open with the tired and the ordinary. You have one best chance to capture the reader’s attention. This is it. Don’t waste it. Get to your point immediately. Otherwise, Leonard said, “the reader is apt to leaf ahead.”
- Avoid prologues. Leonard said this “can be annoying, especially a prologue following an introduction that comes after a foreword.” For lawyers, do not begin with a procedural history. So often briefs start with: “The complaint was filed. … The answer was filed. … Discovery was taken. … Comes now plaintiff/defendant with a motion … blah … blah … blah.” Get to the point. Start your argument with your very first sentence.
- Never use a verb other than “said” to carry dialogue. For lawyers, this means stop overusing “stated,” an unduly formal verb. However, lawyers should have some flexibility to describe a witness’ statements by using synonyms that better elaborate; think “testified,” “admitted,” “conceded,” etc. But don’t get carried away. Leonard wrote: “I once noticed Mary McCarthy ending a line of dialogue with ‘she asseverated,’ and had to stop reading to get the dictionary.”
- Never use an adverb to modify the verb “said” . . . he admonished gravely. For lawyers, take this instruction and apply it more broadly. Adverbs add clutter and diminish the action of the verb.
- Keep your exclamation points under control. Leonard said: “You are allowed no more than two or three per 100,000 words of prose.” This rule applies to lawyers! A brief written by one of my adversaries had so many exclamation points, bold fonts and underlinings that I wanted to tell him that reading his brief made my ears hurt. Don’t do that!
- Never use the words “suddenly” or “all hell broke loose.” For lawyers, the corollaries are “clearly,” “obviously” or other self-serving terms. Gary Kinder of WritetothePoint.com surveyed judges and clerks for their reactions to the use of “clearly.” He reports that the overwhelming majority said when they see that word, they think that the lawyer is hiding something. Argumentative words can alienate the reader.
- Use regional dialect, patois, sparingly. Substitute “legalese” for “dialect, patois,” and you get the point. We were taught in law school to mimic the legal writing styles of judges in American and British courts from the early 1900s. That’s not how people speak today. So, it’s not how you should write.
- Avoid detailed descriptions of characters. Long descriptions of witnesses, events or legal arguments often add little other than wasted pages. Tell the reader only what he or she needs to know in order to understand the role of a “character” in your argument.
- Don’t go into great detail describing places and things. See the last rule. Recite only the facts needed to prove your points. The rest can be confusing. You don’t want the reader asking himself or herself: “Why did this lawyer spend so much time describing facts that do not appear again in the argument?”
- Try to leave out the part that readers tend to skip. As Leonard said, “Think of what you skip reading a novel, thick paragraphs of prose you can see have too many words in them. What the writer is doing, he’s writing, perpetrating hooptedoodle.” Keep it tight. Don’t add sentences just because you’re writing. Keep your paragraphs and your arguments short. You should not spend five pages describing the summary judgment standard. Every judge knows it. It will not be read. The same goes for repetitive quotations from legal cases. And footnotes. See, Aside: “The Common Law Origins of the Infield Fly Rule,” 123 U. Penn. L. Rev. 1474 (1975) (five footnotes in the first 37 words). As New Jersey Supreme Court Justice Robert Clifford wrote in a three-sentence concurrence following an 18-page majority opinion, in Bernard v. I.M.I. Systems, 131 N.J. 91, 109 (1993):“
An offer of employment ‘at the rate of $80,000 per annum to be paid semi-monthly’ so obviously contemplates an employment at will rather than for a fixed term that I see no need to imperil the nation’s forests in making the point. ‘Our life is frittered away by detail. … Simplify, simplify.’ (Henry D. Thoreau, Walden 91 (J. Lyndon Chanley Ed., 1971) (1854)).”
Leonard closed his article by saying that the most important rule is the one that sums up the 10: “If it sounds like writing, I rewrite it.” And if it sounds like a lawyer wrote it, definitely rewrite it.
Steven W. Suflas is managing partner of Ballard Spahr's New Jersey office. He concentrates his practice in the representation of management in all phases of labor and employment matters, including collective bargaining and traditional labor law issues, employment litigation, trials and appeals, ERISA, and wage-and-hour law. He is a trustee of the New Jersey State Bar Association, a former chair of the NJSBA's labor and employment law committee and a member of the New Jersey Supreme Court's advisory committee on professional ethics. He can be reached at firstname.lastname@example.org or 856-761-3466.