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OK, so you just graduated from law school. As Shania Twain might warble, “That don’t impress me much.” Can you write? Writing is, after all, a lawyer’s most potent weapon. It is what we do, it is how we function. And all of us, from seasoned veteran to first-year associate, can sharpen and improve our writing. Writing, including legal writing, is a process of thought. Writing concentrates the mind. A lawyer does not know what the argument really is until he or she writes it. In this sense, writing for the lawyer is an adventure. It means discovery: we discover what we want to argue in the process of writing. The main excitement of the adventure comes in the writing. The heart of good legal writing is clarity. Above all other qualities, clarity is what you aim for. Be sure that what you write accurately reflects what you think and what you mean to say. Writing almost always clarifies what we are thinking. The act of writing forces us to be more precise. Beware of abstractions. Legal writing is often about abstract concepts — negligence, jurisdiction, mens rea, for example — that spawn hazy and vague verbal formulas that sound nice yet are anything but clear and precise. Ambiguity has its place in law as well as in poetry, but legal ambiguity is mainly for drafters of constitutions and great Supreme Court Justices. Until you become another Holmes or Cardozo, aspire to clarity. It is the first step in making yourself understood, and unless you make yourself understood, you cannot persuade a court, jury, adversary, client or senior associate or partner to do what you want. TRY THESE THINGS OUT To persuade somebody to do something, you have to write clearly, concisely and cogently. Here are some general suggestions. You learn to write by writing. You learn to do legal writing by writing legal papers. Write as many of them as you can. Turn nothing down. Think of each project as an opportunity. It is. Don’t write like a lawyer. Write as a person unspoiled by the law. Write conversationally. Speak what you write; see how it sounds. Don’t try to show off by sounding like a lawyer. Avoid legalisms; avoid Latin phrases. Write to be understood. Always be aware of your audience. Prefer short words to long ones, and short sentences to long ones. Favor strong nouns and verbs over adjectives and adverbs. Use action verbs. “The rule applies here” is better than “The rule is applicable here.” Use the active voice rather than the passive voice. Employ strong topic sentences. Cut unnecessary words. Avoid self-reflexive phrases like “as discussed (demonstrated) (shown) below.” Avoid unnecessary, courtier-like phrases such as “we respectfully request that … “ Avoid wasteful, useless, tentative, throat-clearing lead-ins like: “We think … ,” “we believe … ,” “we submit … ,” “it is to be noted that … ,” or “the Court is undoubtedly well aware of … ” Just say whatever it is you have to say without the time-wasting run-up. Keep paragraphs relatively short, no more than four or five sentences each. Use many heading and subheadings. Little pieces are easier to read. Avoid footnotes; they distract and interrupt. Avoid hyperbole and personality attacks. Show, don’t tell. Use demonstrative evidence in your writing: charts, diagrams, graphs and visual aids. As for correspondence, the first rule is: Keep it short and simple. Lawyers and judges are busy people, without time or inclination to pore over letters that go on for page after page. “Litigation by letter” is wasteful and, more important, ineffective. Exercise self-control. Most letters in law practice need not run more than a page, often not more than a paragraph. (Exceptions: opinion letters and accountants’ letters.) The first sentence of your letter should identify who you are (if not known to the addressee) and why you are writing. Example: “As defendants’s counsel, I write to ask the Court to … ” Don’t write a long letter and wait until your last sentence to tell your addressee what you want. Frontload. Never use the phrase “the above-referenced matter.” It is a hideous locution, thoughtlessly repeated in much legal correspondence, that can always be replaced by “this matter” or “this case.” Never refer to yourself as “the undersigned.” GO FOR THE BRIEFS If you like expository writing, briefs and memos are where you get to show your stuff. The first paragraph of a brief should be as attention-getting as any other lead in a piece of writing. You want to draw the reader in. You want it to be interesting. You want to be creative, to promote your argument and show that you have some style. Opening and Organization. Avoid the boring, tiresome, ridiculously uninformative opening line — used habitually by many brief writers: “This brief is submitted by (plaintiff)(defendant) in support of (in opposition to) the motion for … ” Granted, some very few briefs do not lend themselves to a first line more imaginative than that old legal warhorse. But it is so bad that it should be avoided if at all possible. Many briefs easily give rise to interesting, fun, opening paragraphs. For example, in a post-trial brief involving a Broadway show, defendant’s counsel wrote: “The time has come to bring down the curtain on this farce.” An appeal brief for an actress fired for unpopular views started: “In a free society, people’s livelihoods should not depend on their holding ‘correct’ political views, as defined by their government or by their employer.” Either in the preliminary statement or right after it, try to summarize, in a few paragraphs or lines, why the court should grant the relief you are seeking. Assume that judges, law clerks and partners only read the first four pages of your brief or research memorandum. Get all you absolutely need to say in these first four pages. The statement of facts is where you often win or lose. Spend time on this section. Use chronology for the narrative and try to tell a compelling story. Use time sequence rather than witness-by-witness account unless you are purposely attempting to create a Rashomon-like description. Organize your presentation in terms of persuasiveness, not logic. Put your best argument first, even if it is not logical to do so. Point Headings. Many lawyers treat point headings in a brief as if they were vague subject markers in an outline rather than steps in an argument in a brief. The point heading should be a concise argumentative statement applying a specific principle to the facts of the particular case. It should be a clear and complete statement forcefully written. It should not be a statement of an abstract principle of law. It should be interesting and informative. Argument. It is common in legal briefs, especially a brief in opposition, for lawyers to set up their arguments by paraphrasing their opponent’s arguments in the topic sentence of a section of a brief. They will start the section along the lines of: “Defendant argues that … Defendant is wrong.” And then the brief goes on to explain why. But why start a section of your brief with a restatement of your adversary’s argument? Rather, state your side’s argument affirmatively. Frame the question in a way that admits of only one answer — yours. Don’t let your adversary define the legal issues. It becomes a crutch that is transparent, unimaginative and ineffective. Even in your opening brief, you should deal with your adversary’s anticipated counter-arguments, at least the main ones. In this sense, the brief is a form of dialectic. Of course, you may want to save something for reply or lead your adversary into a trap. Think hard about your argument. Use your facts as best you can. Beyond simple analysis of case precedent, broaden your argument in terms of fairness, history and policy considerations. Conclusion. Most conclusions in briefs essentially say no more than “we win, they lose.” This is phrased slightly more elegantly as: “For the reasons given, plaintiff’s motion should be denied.” Such bare-bones conclusions are missed opportunities. Use the conclusion as a chance to continue your argument, much as you would in the concluding paragraph or two of an expository essay. Recapitulate your arguments and then add a few lines about the broader public policy implications of the issue, how your adversary’s position is another symptom of the decline of Western Civilization, etc. The point is to use the conclusion as something more than just a tag line. THOSE OTHER DOCUMENTS Briefs and memos differ from pleadings and motion papers, but not as much as many lawyers think. For all of these litigation documents, clarity, simplicity and conciseness are the goals. Fed.R.Civ.P. 8, for instance, requires pleadings to be “short and plain” statements of claim. Similarly, CPLR 3014 says, “Every pleading shall consist of plain and concise statements in consecutively numbered paragraphs.” Although pleadings and motions are not as expository as briefs and memos, they also tell a story and are governed by similar basic rules. Drafting pleadings is an art form, a genre unto itself. When it comes to pleadings, bigger is not necessarily better. Less can in fact be more. A pleading, like a mathematical proof, can be elegant in its simplicity. Much of what has been said above about legal briefs and memoranda of law applies to motion papers. In addition, think in terms of the function of each of the relevant parts of a motion: (a) notice of motion (or order to show cause), (b) supporting or opposing affidavits, and (c) briefs. As with legal briefs and memoranda, so too with affidavits: frontload, avoid name-calling. Supply the needed factual basis. Be specific and concrete on those facts. Shape the affidavits around the relevant legal standards. The aim is to persuade. The compelling need for brevity is heightened by the page-limit rules being adopted by more and more individual judges in both state and federal courts for both briefs and affidavits. Such page limits put even more pressure on litigators to write as concisely as possible, which means truly focusing on the essence of what you have to say. It is more difficult to write a really effective short brief than it is to compose a brief without page limits. We often feel like saying: “I didn’t have the time to make it shorter.” To go back to Shania. “Who do you think you are, Benjamin Cardozo?” Daniel J. Kornstein, a partner with Kornstein Veisz & Wexler, writes frequently on legal subjects.

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