Writing skills have fallen victim to texting, email shorthand and the acronyms of social media. Spellcheck and automatic grammatical suggestions make us lazy writers. All of this, btw, may be fine for your bff, but it is not so good in court. LOL.
Particularly in the appellate world, writing is what matters most. The written brief is the first exposure a judge has to the case. It is the primary tool of advocacy sometimes it is the only advocacy the judge gets. For better or worse, your pleadings and briefs go to people that read and write for a living, people who will be discerning and less tolerant of poor writing.
While there is a marked difference between opinions and briefs, lawyers can still take something from judicial writing. An opinion is an explanation, an exposition of the reasoning that led to the decision. While judges are gratified if everyone agrees with the opinion, agreement is not its goal. The writing styles reflected in opinions are as varied as judges themselves, but remain relatively constant in that explanatory objective.
A brief should not be a minor law review article or treatise, nor a tome designed to impress the client or the opposition. Neither is it wholly explanatory. A brief is a persuasive writing designed to help the judicial reader agree with a proposed result. The writer absolutely wants the reader to agree that is the very objective of the brief. Despite these different purposes between opinions and briefs, there are traits from good judicial writing that the advocate can apply to most any legal writing.
The central attribute of good legal writing is clarity. An opinion explains its rationale to bench and bar and establishes guideposts for future cases it is of little help if the opinion is oblique. Likewise, if a brief is not clear, its purpose is not met. A court wants to ascertain the precise issue and the logic that leads to the correct result. If a sentence has to be reread to be understood, the reader is frustrated. Such writing is not clear enough. It is of no use if the reader cannot be sure what you mean, or cannot tell if you mean A or B.
Simple words are most clear and least confusing. If 50 dollar words have a place, it is a small place. A good writer uses "after" instead of "subsequent to," and "because" instead of "in light of the fact that." Understanding is also promoted by using names or roles, not abstractions. "Party of the first part" has no place in a brief, and calling someone "the appellant" tells the reader only that this person lost in the previous round.
Clarity is advanced by concise writing "brief" is not a misnomer. The average sentence has 17 words make that a ceiling, not a floor. You may explain in detail at some point, but there should first be a condensed version that allows comprehension of what you are going to explain. More words lead to more vagaries, creating more latitude for different readers to understand your meaning differently.
The good opinion and the good brief both allow the reader to grasp the matter early. A helpful exercise: write several sentences about the subject, then rewrite the same sentences using 20 percent less words. This is particularly worthwhile if you can shorten your statement of the issues less truly is more there. Framing the issue is crucial, but trying to squeeze your argument into that framing is normally a bad idea.
Judges do not want to read what they already know. Do not start a brief with Marbury v. Madison; history lessons and odes to the Constitution are as helpful as telling a motorist asking directions how the car was invented. While opinions sometimes trace the development of the law, opinions have a different purpose. A brief should get to the point. Do not write about the irrelevant if the issue concerns jury instructions, the court does not want the dates of all the pretrial motions.
Wordiness is perhaps the biggest sin of legal writing, and judges are not immune. Most of my editing of rough drafts from clerks involves deletion of words, adjectives, sentences and whole paragraphs. If I could edit briefs, I would chop a quarter of nearly all of them, and three quarters of some. If you cannot write succinctly, you are in trouble.
Concise writing should strive to eliminate redundancy, exaggeration, verbosity, hyperbole and redundancy. Limit introductory phrases ("I should like to point out that..."), redundancies ("the reason was because..."), string cites and long block quotes. Footnotes should be minimized because they interrupt the reader. The use of "and/or" is an ambiguity on its face which do you mean? Finally, a personal pet peeve after writing a number, do not put numerals in parentheses. A judge who reads "twenty-five" does not need an added "(25)" to comprehend the number.
Cousin to wordiness is overstatement, the next biggest sin. Words that may light up a jury argument will not work in a brief. Calling the case a tragedy of epic proportions is going to evoke only a dismissive chuckle from a judge who sees and reads of bad things all the time. Hyperbole is annoying and almost condescending.
Write in English not Latin, not legalese. You are not writing to impress the reader with your erudition; you are writing to persuade. You paid a lot of money to learn big legal words, but so did the reader. Your writing should not be in slang, but it should avoid pretentious and ceremonial language.
Specialization in the practice of law creates jargon. Clear writing minimizes that jargon and its neighbor, the acronym, as much as possible. These terms are often awkward for readers who may not be fluent in that specialty. Shorthand is counterproductive if the reader has to stop to translate it.
Metaphors and analogies can be good tools, but be sure they are apt and understandable. Do not say "fig leaf" if you mean "olive branch" both are biblical, but they evoke very different visuals. As someone pointed out, even if a mixed metaphor sings, it should be derailed. Again, understanding is the goal, and a well-conceived analogy can evoke helpful pictures in the reader's mind.
Civility of tone is mandatory. You can be firm and zealous, and take issue with your opponent, but there is little to be gained by castigating the other side if it is apparent they deserve it, you do not need to do so; if it is not apparent, you will be seen as whining and bitter. We are professionals and should not be treating our work as ice hockey in business suits. Write as a professional, not a scorched earth advocate.
Finally, proofread for typos and for content. Opinions are vetted by many, which is not always the case with briefs. Have non-lawyers read for comprehension if civilians do not understand what you are talking about, it is not clear enough. Too many errors typographical or contextual bespeak sloppiness and may give rise to a presumption that your reasoning may be sloppy as well. It also shows a certain disregard for the product given the court, and disregard can indicate disrespect.
A typo will not cost you the case, but it will distract a professional reader, which hampers your persuasive efforts, and a significant mistake may find its way to my PowerPoint presentation on "What NOT to do on Appeal." That is something you want to avoid!
Courts just want to be right to the advocate that means, of course, your result. If you want to guide the court there, craft your brief with an eye toward your distinct purpose and maximize that which is important to the reader.
The Honorable J. Michael Eakin was elected to the Supreme Court of Pennsylvania in 2001, after serving six years on the Superior Court of Pennsylvania. Last month, he was retained for another 10 year term in a statewide election. He served three terms as District Attorney of Cumberland County from 1984 to 1995, served as president of the Pennsylvania District Attorneys Association from 1992 to 1993, and was that organization's Education Chair for nine years. In 1970, he received an undergraduate degree from Franklin & Marshall College, and received his law degree from the Dickinson School of Law in 1975.
Suggested citation: J. Michael Eakin, The Necessity of Clarity and Brevity in Legal Writing, JURIST - Sidebar, Dec. 29, 2011, http://jurist.org/sidebar/2011/12/michael-eakin-legal-writing.php.
This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org