The Bad Habits of Legal Writers, and Why Young Lawyers Should Avoid Them
Robert J. Luck is an attorney in Miami, Florida. You can contact him at firstname.lastname@example.org
One day, a young girl was in the kitchen watching her mother cook a brisket for dinner. As the brisket was being prepared for the oven, the girl saw her mother cut off one of its ends with a knife. The girl asked her mother, “Mom, why did you cut off the end of the brisket?” Her mother replied, “Because that’s how my mother made it.” Curious about her mother’s answer, the girl called her grandmother and asked, “Grandma, why do you cut off the end of the brisket before putting it in the oven?” The grandmother replied, “Because that’s how my mother made it.” Still curious, the girl called her great-grandmother and asked the same question. The great-grandmother responded, “Because my pot was never big enough to fit the entire brisket.”
The moral of the story is that sometimes we do things out of habit that no longer make sense with time. Just because our mothers, or grandmothers, or great-grandmothers prepared their briskets one way doesn’t necessarily mean that we should prepare ours the same way—the size of our pots and pans may be different. Likewise, just because our law school professors and mentors at work write one way doesn’t mean that we should pick up their tics and conventions and styles blindly. They may be obsolete.
Too many young lawyers are still cutting off the end of the proverbial brisket—still following the anachronistic writing habits of the past—because that’s what they see their elders doing. We should instead ask ourselves one question: Is my writing going to effectively persuade the reader? If not, then the writing habits we picked up from our law school professors or firm partners should go the way of great-grandma’s brisket recipe, regardless of how long they have been marinating.
Here are a few examples of old writing habits that young lawyers still cling to, but shouldn’t:
- Over-footnoting. Lawyers use too many footnotes and use them ineffectively. Over-footnoting causes the reader to constantly look away from the main text, which is never what a brief writer wants. Also, lawyers put important and even dispositive arguments in their footnotes, where there is a greater chance that they will be ignored or overlooked. To avoid these footnote problems, the rule of thumb is that footnotes should be rare and used only for emphasis or to bring an interesting, albeit tangential, issue to the court’s attention. If it’s important, put it in the text; if it’s not, take it out. Extraneous material should not detract from the important stuff, like winning your case.
- Overcapitalization. Young lawyers tend to write too many sentences like this one: “The District Court erred in granting Appellant ABC Insurance Company’s Motion for Summary Judgment on the Damages Issue.” Overcapitalization is distracting to the reader; it puts emphasis on words that should not be emphasized and detracts from the important points. The sentence looks much cleaner and smoother if it is written without the capitals: “The district court erred when it granted the insurance company’s motion for summary judgment.” Same sentence substantively, but more pleasing aesthetically.
- Over-abbreviation. Attorneys tend to over-abbreviate. Party names become initials—Jones Insurance Company and American Executive, Inc. become JIC and AEI, respectively; the district court becomes DC; and summary judgment becomes SJ. The resulting sentence in the brief looks like this: “JIC appeals the DC’s decision to grant SJ for AEI.” The alphabet soup is confusing to the reader and detracts from the content of the brief. Instead of focusing on the substantive points, readers must look up the abbreviations—especially in multiparty cases—to make sure they have them all straight. Better to pick one proper or descriptive name to refer to the parties; abbreviations for anything else should be avoided if possible. Using this rule of thumb, the sentence should instead read: “The insurance company appeals the district court’s decision to grant summary judgment for American.” This way, there’s no need for the reader to go rooting around the brief looking for the key to the abbreviations.
- Overuse of jargon. Finally, too many lawyers tend to rely on legal jargon or old Latin phrases to press their client’s case. A typical sentence may read: “The court, ergo, can sua sponte assume arguendo that the plaintiff has established a genuine issue of material fact on the similarly-situated element of the prima facie case, inter alia, for purposes of summary judgment.” Even assuming that the reader doesn’t have to dust off a copy of Black’s Dictionary to figure out what the sentence means, it still looks clunky and complicated. Avoid complicated words where simpler ones are available. Legal concepts and analysis are difficult enough for the reader to grasp without having to mine the sentence for nuggets of meaning. The better practice is to present your client’s case as simply and clearly as possible so that the reader will understand the point you are trying to make, absorb it, and then move on to the next one. To that end, the sentence is more effectively written as: “Therefore, the court can assume, without deciding, that the plaintiff has presented a genuine issue of material fact on all the elements of his Title VII claim to defeat the summary judgment motion.”
This is by no means an exhaustive list. These examples are instead illustrative of bad writing habits that get passed on from old lawyer to new, like a mother passing on to her daughter the stack of note cards with the secret family recipes. Our duty as young lawyers representing clients is to look through the stack with fresh eyes, keep the gems, and put aside those that are outdated and inapplicable.