The Bright Line Business Law Blog

Legal Writing: Step 2 Now, Make Your Point

(Second in an intermitent series, see  Step 1, "Have a Point" here.)

Use a Structure to Organize

           The best way to make the point is to have an explicit framework outlining the document.  Whether it is a skyscraper or a human being, there is a skeleton that serves as the framework supporting the structure. One good way to make the point is to make that framework visible.  Since good legal writers work off of outlines, simply make this outline the visible framework to the reader, and you will quickly reinforce the point of your writing.  In all three forms of legal writing, the structural support can be shown by the use of headings and labels identifying the sections, the various contentions of the parties and specific legal points or authority.  A table of contents does the same thing for longer documents and is required by court rule in law and motion papers over 10 pages.

          Give away the mystery in the introduction. It doesn't need to be boring. Here’s a colorful example of explaining structure by Jared Diamond, in his book, Collapse.  In the book, he discusses the reasons for the failures of various civilizations.  Here is how he shows the structure:  “So that readers will have some advance idea where they are heading, here is how this book is organized. Its plan resembles a large boa constrictor that has swallowed two very large sheep.”  He then says that two major portions of the book discuss modern Montana and Norse Greenland as major case studies--the two large sheep. Smaller sections of the book cover Easter Island, the Maya and Anasazi and modern Rwanda.  His colorful outline accurately describes the book’s organization.

            Furthermore, in persuasive legal writing, there should be an introduction that summarizes the arguments you are about to make.  An example might read as follows:

“This motion for summary judgment argues:

1.            Plaintiff is not a corporation authorized to do business by the Secretary of State;

2.            Individuals do not have standing to prosecute this action on behalf of the corporation; and

            3.         The statute of limitations has expired.”

The judge, and the judge’s research attorney, both know after the first paragraph what the three main arguments will be.  Unfortunately, most legal briefs begin with a dreary and lengthy compound sentence simply describing the parties with accompanying “hereinafters” with substantial written equivalent of throat clearing and “ahems.”  Often a brief will have an introduction similar to:

“Comes now defendant X Box Corporation for itself and no other defendant

(hereinafter referred to as “X Box Corp.”) and brings the motion against

plaintiff’s first amended complaint of Alphabet Soup Corporation (hereinafter

“Alphabet Soup”) including a motion for summary judgment, or in the alternative

summary adjudication, of the issues on the first, second and third causes of

action as more fully and completely set forth in the accompanying memorandum

of points and authorities, papers, affidavits, exhibits and arguments that may be

permitted both oral and written.”

Boredom sets in before the point is ever made.

Helpful headings

            The headings can also be argumentative themselves.  When headings are used, they are often innocuously labeled “facts,” “statute of limitations,” or “plaintiff’s corporate status.”  The headings should make their own point.  Instead of “Statute of Limitations,” try “The Three Year Statute of Limitations Expired No Later than 2002, Two Years Prior to this Lawsuit.”  Subheadings could then be stated as follows:  “The Oral Statute of Limitations Expired in 2001.”  The next subheading could be, “The Statute of Limitations for Fraud Expired in 2002.”  And, the final subheading could be, “The Written Contract Statute of Limitations Expired in 2003.”  The use of argumentative headings will reinforce the overall point and help to focus the written argument. The best part is that these are simply part of the original outline and it requires little extra work to be more persuasive and easier to comprehend.

            With respect to informational writing, the same holds true.  For example, a discussion of  various legal courses of action and analyzing available options can be labeled,  “1.  Do Nothing,” “2. Arbitrate,” “3.  Mediate,” “4.  Litigate.”  Under the pros and cons of each recommended course of action, all factual and legal issues such as choice of law, evidence and juror pools can be discussed with parallel subheadings as needed.  The intended reader can get a grasp of the entire range of options, pros and cons, simply by looking at the headings. The structure of the headings serves to reinforce the advice being given.

            In operative documents, either Roman numeral subheadings or some other numerical system with descriptive headings will assist the document’s users to quickly locate key provisions by reading descriptive headings labeled, for example, “attorney’s fees” or “arbitration in case of dispute.”

Conclusion

          Showing the structure improves reading comprehension. Readers who comprehend will get the point. They are also more likely to retain information on the first reading and can easily navigate the documents on subsequent readings to find wha they need.

Step 1 Legal Writing Tips

1.         Have the point.

            

            Lawyers prepare three kinds of documents:  persuasive documents, information documents, and what I call “operative” documents.  Persuasive documents include legal briefs written to a judge or letters to opposing counsel advocating a client’s legal position.  If the point is not clearly made, the persuasive power of the document is lost.  In fact, if the judge or opposing counsel don’t grasp the point, persuasion is usually impossible.

Information documents are intended to provide information and legal analysis describing various potential courses of action and discussing potential remedies.  Information documents include research memoranda, status reports to insurance carriers and opinion letters to clients.  These documents are written to an audience, such as a board of directors or corporate office claims adjuster, who will make a decision to choose between one of several legal options being presented in the document.  Again, the key to informational legal writing is to clearly identify and to accurately describe the facts and applicable law applicable to each option.  If the client didn’t grasp each option and the basis for each option, the client won’t get the point of the argument and could make a disastrously poor legal decision.

            Operative legal documents include contracts, judgments, wills, trusts, articles of incorporation, legal disclaimers and settlement agreements, for example.  The point of these documents is to resolve a client problem through the legal power of the document itself, without the need to resort to further adversarial legal proceedings.  We want our carefully drafted will to be probated without challenge.  We want our contracts to successfully control the enterprises without litigation over the terms of the contract and we want homeowners and the homeowners association board of directors to be able to understand the CC&R terms the same way, as much as possible.  If the operative document is unclear, then the result will be  unnecessary and expensive litigation.

            Whether a legal document is persuasive, informational or operative, if the purpose of the document is clear, it is more likely to be effective – a goal desired by all lawyers - to be effective, make the point clearly and soon.  In the next section, I discuss some means to make that point.

Why is legal writing so bad?

A client once gave me a legal document and told me it was written in Klingon. I read it too and couldn’t decipher it, either. Since there are so many lawyers, I now see why Klingon is the fastest growing language in the galaxy.

I once read a judge’s order on a proposed stipulation prepared by an attorney in our firm: “The parties have entered into a stipulation. After careful study, I cannot determine what it is they are agreeing to. They seem to be discussing arbitration and there is an arbitration clause in the contract attached to the complaint. Accordingly, the matter is ordered to arbitration. The parties can file objections to this order if it is not what was intended.” My curiosity piqued, I went to the file and read the confusing stipulation. It was written in a form of sixteenth century English and could have been re-written into a single sentence: “The parties agree to arbitration.”

Execrable examples abound and not just in the legal field. In fact, one reason I began this weblog was to improve my own writing. Good legal writing is very much a “use it or lose it” skill and it’s easy to develop bad habits. Public writing is one way to keep honest.

I have a few ideas why legal writing has generally been so bad.

First, there is the long history of the use of Latin, such as “locus in quo” and the use of archaic phrases and “legalese” such as “trespass to chattels,” “aforesaid” “aforementioned” and the ever popular “hereinafter.” The development of an insider language—jargon-- is common to all occupations. The jargon can be humorous or even poignant. In my career as a Coast Guard search and rescue officer, the targets of our efforts were either called “sinkers” or “floaters” that is “boats losing buoyancy” and “dead bodies.” The single word description allowed the rescue crew to plan the appropriate response before they arrived on scene. Jargon at its best promotes efficiency. For example, the hearsay doctrine is wrapped up in a single word saying volumes to lawyers but incomprehensible without a lengthy explanation to a nonlawyer. It is efficient to use the single word “hearsay” when talking to another lawyer, especially a judge, when lodging an objection.

Jargon, improperly used, however, leads merely to confusion and puzzlement and should be eliminated. Are all the Latin phrases necessary or do they interfere with communication? Is it ever helpful to refer to the “said” contract and the “said” traffic accident? I suspect the use of this kind of jargon/legalese is done simply to maintain some perceived exclusivity of the profession. I admit that "De minimis non curat lex” just rolls off the tongue better than “The law does not deal in trifles.” Surely, “nota bene” sounds more erudite than “important point.” We want our clients, especially potential ones, to be impressed with our erudition. Despite that, we often only confuse them, living down to their expectations that lawyers charge by the word and intentionally complicate the paperwork unnecessarily. The first thing we do is kill off legalese.

Second, we are verbose when shorter is almost always better. They’re called “briefs” for good reasons. As Mark Twain said, “I didn’t have time to write you a short letter so I wrote you a long one.” It is difficult for lawyers to balance time and money considerations in their legal writing. For lawyers, time and money are different forms of the same substance just as matter and energy were for Einstein. Practice is the cure. Re-writing to achieve brevity in the long run results in more understandable and persuasive writing, which turns out to be more cost effective for the client than writing which may cost less but fail to achieve a reachable goal. Losing a case through bad writing is incredibly expensive. Here are examples of real cost savings in various industries.

Third, there is simple training through the education process. We all begin our journey towards reading and writing literacy in first grade. Lawyers end this journey more than a decade later after at least eight years of high school and college term papers. And that’s where we begin to pick up bad writing habits (among others). How many of us have spent weekends attempting to write a minimum 10-page term paper by Monday when we have only 4 pages of intelligent thoughts? How do we do it? By a concept I call “word expansion” and others would call word “weaseling.” Unfortunately, word expansion is easily accomplished by meaningless word repetition, restatement of the same concept in different language, liberal use of chain adjectives, use of garbage words, and the use of passive voice, which will usually get you at least five extra words per sentence. The imaginative use of these techniques can quickly turn four pages of ideas into a 25-page tome, even without the “advanced” techniques of adjusting margins and font size.

I’ll discuss recommendations to improve legal writing in future posts. Be sure to check out the writing resources on the left rail.