Better legal writing now: Top mistakes to avoid; tips on nurturing young talent; more

Marie Buckley

Marie Buckley

Legalese can make a simple document seem dense, tangled and, worst of all, subject to misunderstanding. Writing coach Marie Buckley, author of The Lawyer’s Essential Guide to Writing, says that using plain English is one of the first steps in achieving sharp, clean writing that today’s judges and clients appreciate and understand.

Buckley recently met with YourABA, sharing other tips on powerful writing, suggestions on how to face the grammar police and advice on mentoring young writers.

If a lawyer could only read one chapter of your book, which one would you want her to read?

Chapter Three, “The Three Essential Principles for Powerful Writing,” is the foundation for the book. It lays out three guiding principles:

(1) Use plain English.
(2) Lead from the top.
(3) Tell your readers what to do next.

Leading from the top is the key to strong, confident writing so the book focuses on that principle. In a nutshell, it means that we should always lead with our conclusion.

Leading from the top tells our readers what to look for in the rest of the paper, much like the literary technique of foreshadowing. If we begin by telling our readers what is important, they will hunt for that information as they read and that information will click readily when we present it later. And because our readers know where the paper is going, we can spend less time on transitions later in the paper.

Leading from the top means different things in different mediums, but it works for all forms of writing. In email, for example, the subject line should lead for the whole message and the opening sentence is essential. In PowerPoint, earlier slides lead for later slides. In social media, the first encounter with the reader must lead for the rest of the written material.

What are some of the biggest mistakes lawyers make in their writing, besides some of the obvious concerns such as typos and failure to proofread?

Our writing issues are far more fundamental than typos or proofreading errors. Lawyers torture the language. We use jargon and legalese that make us sound pompous and superior. We write long sentences and endless paragraphs that contain a jumble of ideas.

Young lawyers are often afraid to reach a conclusion. A conclusion that says “maybe” is timid and not worth the cost of the research.
   
Lawyers often bury their conclusion at the end of the paper or put lead sentences at the end of a paragraph, so our readers have to search to find key points. And we often fail to tell our readers what they should do next.

On the flip side, what are some of the elements of good writing?

Strong writing conveys who the writer is as a lawyer and a person. The writer’s voice and intellect sing through and the writing conveys confidence and fosters trust.

Strong writing always considers the readers’ needs. It makes reading as easy as possible because it speaks in a language our readers already know and love—plain English. It avoids jargon and legalese and it uses brave, short sentences.

Good writing focuses our readers’ attention for them because it leads from the top by stating the conclusion at the beginning. Each paragraph begins with a strong lead sentence. Our readers should be able to understand the paper by reading only the first sentence of every paragraph.

Strong writing is concise, but thorough. It always gives our readers choices. Headings and topic sentences allow readers to choose not to read a section or paragraph or to flag a passage for later reading. Strong writing also keeps our readers’ eyes moving. It establishes a measured pace and maintains that pace. The logic flows smoothly and the paper flows.

Finally, good writing looks clean, attractive and professional. Headings, white space and careful alignment all make our papers easier to read. Proximity is also an essential design principle and it simply requires that similar information be placed close together.

What are some of the barriers preventing lawyers from being good legal storytellers?

Lawyers often get so mired in the facts that they forget the story. Story is the context in which facts happen. Stories involve real people and events, so they have emotional appeal. We forget facts, but we remember stories.

In legal writing, the story always turns on the parties. Who are the players? How do they know each other? What went wrong? While most legal issues ultimately turn on narrow facts, those facts will be lifeless and meaningless if they are not wrapped in the larger context of story. Therefore, every research memorandum or brief should begin with a few sentences that explain the context in which an issue arises.

Many law schools teach IRAC (Issue, Rule of Law, Analysis and Conclusion) as the format for memoranda. What would you recommend?

IRAC is upside down because it puts the conclusion last. It also leads to timid writing because it requires the writer to walk the reader through the analysis before putting the answer on the table. It’s as if the writer needs the reader to approve the reasoning before the writer will share the answer.

Instead, we should start with the story and state the conclusion up front. Since we are in the land of horrid acronyms, I suggest FICA or FICAR:

  • Facts (meaning Story)
  • Issue
  • Conclusion
  • Analysis
  • Recommendations

In a casual paper, we can condense the Facts, the Issue and the Conclusion into a single section and simply call it the Introduction.

Under any format, the “opening” is the key part of the paper and it must do three things. First, it should set the stage by explaining the story. Second, it should make the issue clear, even if it does not state the issue separately. Finally, it should explain the conclusion and highlight why the writer reached that conclusion.

In a research memorandum or brief, we should “open” in a page and a half. In that first page and a half we have the sacred gift of our readers’ attention—whether we deserve it or not. We should use that prime real estate to convince our readers that we are worth reading.

Back to top

When working with other writers on a team, especially young attorneys, what are some tips for ensuring the quality of the final product?

Thank you for phrasing the question in terms of a team, because working with young writers should be about building a team. The success of your young colleagues will ultimately reflect well on you, so you should always make the effort to nurture young talent. As a mentor, your job is to work with the writer, not just the writing.

You must give out the assignment in a thoughtful, productive way. Go beyond explaining the narrow legal issue. Explain the facts of the case or your colleague will not be able to determine what cases are the most relevant.

Make sure that your colleague understands what the assignment will be used for and what you already know about the law. Our clients should never have to pay for a young lawyer to reinvent the wheel.

Provide models and be clear about expectations. Many errors are formatting errors, so providing a model ensures that the final paper will follow an approved style and format.

Be clear about deadlines. If you are not confident in your colleague’s work, ask your colleague to check back occasionally. Avoid getting blindsided by problems late in the game.

How would you suggest giving comments?

Most lawyers know how to fix a paper, but many don’t know how to mentor the writer. They simply throw up their hands in frustration and try never to work with a struggling young writer again. But all lawyers should nurture young talent.

The trick is to give constructive comments in a way that promotes learning and collegiality. I’ll share some trade secrets. Give comments in person. You can couch concerns in an appropriate tone if you take five or ten minutes to meet face-to-face or at least chat by phone. Sit next to the person and have the paper between you. The paper gives you something to look at other than each other, so that the medicine goes down more easily. Say we, instead of you. We language is less personal, so it diffuses tension.

Begin by saying something positive. Find the one time that the writer wrote a strong lead sentence to a paragraph. Explain how that technique impressed you and suggest that they use that technique elsewhere. Comment on the thoroughness of the research, the strength of a certain passage or even just the terrific typing. You can always find one nice thing to say.


About the book

The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques is a new writing handbook for lawyers that equips them with the essential tools they need to become great writers.

According to author Marie Buckley, founder of the Legal Advocacy Workshops, the book provides a systematic approach to all forms of written communication. “The principles it suggests apply to all mediums that lawyers use today."

“I hope the book helps lawyers to become better writers themselves, but I also hope it helps lawyers understand how to coach their young colleagues to become better writers.”


Then focus on two or three teaching points. By limiting your comments to the most important points, you ensure that this writer will remember the key points and will be more likely to apply those points to the next paper.

Anything else?

Say “thank you.” People work for the recognition of their peers, so thank the young writer for his effort, even if the final product wasn’t quite what you had hoped for.

Is it your goal to get lawyers to stop sounding like lawyers when they write? Why is that?

My goal is to encourage lawyers to use the same language that the rest of the world is using. Plain language shows our humanity so it fosters trust and trustworthiness is any lawyer’s most valuable asset. Dense, impenetrable language and sloppy writing breed confusion. And it’s not only civilians who don’t understand our writing. Lawyers themselves often struggle with other lawyers’ writing, so our strange writing habits are not serving anyone well.

Our dense writing style has serious consequences in the real world. Poor writing leads to poor decision-making. Even more troubling, our impenetrable style defeats our most basic values as a society. We are a nation founded on the rule of law, so people should be able to understand the laws and rules that govern our society. The least we can do for a nation that often questions the value of lawyers is to write in a way that adds value—a way that makes legal thought accessible and that regular folks can understand. Clean, clear writing promotes justice and order.

By the way, plain English does not mean simple English. We are entitled to use our massive vocabularies, but we should use them to convey precision and nuance rather than to show off.

Back to top

Could you provide some advice around using case law in writing?

Talk about the facts of the cases. Judges and senior lawyers usually know the general rules of law, but they don’t know how those general rules play out in individual cases. So focus on facts. If you can’t work the facts into prose, share them in a parenthetical. Parentheticals are clunky, but it is better to use a parenthetical than to lose factual information about the cases.

Give a global picture of the research. Often the most important part of your research is what you did not find. If no court has ever ruled against your position, then you miss an opportunity if you simply cite the 1,001 cases that favor your position. Explain that No reported case has ever held that against this position.

Let your readers know the weight of every case you cite. Is a case the most recent case? Is it the leading case or the most analogous case? Does it take a different position than other cases? Or does it narrow a concept or simply provide an example or repeat earlier authority? Use signal words, such as recently, in the leading case, in an analogous case, by contrast, however, in particular, for example, also or again.

You must also understand the trends in the case law. Thinking of cases in narrow legal categories, such as intent or fraud, is not enough. Divide your cases into two piles—cases that hurt and cases that help. Then dig into each pile and uncover the factual trends that distinguish the two groups.

Finally, don’t separate citations from text by putting them in footnotes. Dropping citations to footnotes violates the essential design principle of proximity and it requires the readers to jump back and forth to piece together the complete reference. Someday, we will be able to simply hyperlink to cases, but for now the best solution is to keep the citation intact.

What are some dos and don’ts when it comes to using bullets?

Bullets are a modern, effective writing tool. They allow us to write without transitional words, so they are a good technique for presenting simple material or lists. But be careful not to simplify complex material to fit in a bulleted format or you may find yourself sacrificing content for form—the fatal flaw of many PowerPoint presentations.

And know your medium. Bullets work well in emails, letters and informal memoranda, but they may be too informal for court filings. Never use bullets to simply present a list of cases or your paper may end up looking like a simple transcription of your research notes, rather than a thoughtful analysis of a body of law.

Bullets also suggest that there is no hierarchy to your list. If some elements are more important than others, use numbers instead.

Many people make grammatical errors when using bullets or they style them incorrectly, so I’ve covered those technical details in the book and on my blog at mariebuckley.com.
 
You encourage people to start a sentence with “however, and, but and because.” Aren’t you afraid of the “grammar police?”

I’m not afraid of the grammar police, but I am frustrated with them. We can all agree that our writing needs to be perfect and that grammatical errors in legal writing are inexcusable. But good writing is about much more than perfect grammar. The grammar police shift the focus away from the real factors that drive excellence in legal writing and simply leave us to shrivel in fear of violating some obscure rule that we learned in sixth grade. I’ve tried to address the common rules that keep lawyers awake at night in the Grammar, Usage and Punctuation Guide at the end of the book.

I have also tried to dispel some of the more archaic notions. You can certainly begin a sentence with and, but, yet or nor. Supreme Court justices do it all the time. These words help us control the pace and rhythm of our writing and they bring our writing down to a human scale. Of course, you have to understand your medium. While these techniques are grammatically correct, they may not fit every medium. For example, beginning a sentence with and may be too artsy for formal briefs.

And there is no modern rule that says that you may not begin a sentence with however. The question of where to put however in a sentence is simply a style choice.

Back to top

 

 

EYE ON ETHICS

A day in the life…

TECHNOLOGY TRANSLATORS

Public Wi-Fi and the cost of "free"

FIRST FOCUS

Better legal writing now: Top mistakes to avoid; tips on nurturing young talent; more

AROUND THE ABA

High-profile litigators on high-profile cases in media

Dos and Don’ts for LinkedIn success

State rules leave virtual law offices vulnerable to misconduct

Court best practices for avoiding a “mistrial by Google”

Providing benefits to same-sex spouses of employees: Legal issues, best practices

A new day for the Office of Special Counsel, say panelists at ABA program

Global risks report on today’s changing landscape

Advice on working for Uncle Sam

ABA files amicus brief in Filarsky v. Delia

MEMBERSHIP

Maximize your membership: Join an ABA section, division or forum