Let’s start with this very simple premise: Your goal is to create an easy-to-comprehend document with information that will persuade the reader that your position is the correct one. A well-written legal document is one of the most important tools in a lawyer’s arsenal. No matter who your audience is or what type of writing you are doing, you don’t want your reader to struggle to understand what you are trying to convey.
Everyone has different approaches to writing a first draft. Some people like to write quickly, not looking back at what they have written and leaving notes on what to fill in later. Others set deadlines or goals, such as to have section X completed by a certain date. Whatever your approach is, don’t worry too much about spelling and punctuation, word choice, or “sounding good.” Your goal is to establish your main points, ideas, and reasoning in black and white. Revising and editing is the essential stage—that is when you craft a cohesive, competent, and easily understood document.
For most legal writing, you will know your audience. Whether it is your senior manager, a partner, or the court, write in a professional tone. The breezier you are, the less seriously you will be taken.
Organization has many elements, including structure, flow, and visuals.
Many writers find it helpful to create an outline before drafting. Even a short outline like the following will help guide you to where you want to go and the points that you want to make:
A. Issue
B. Answer
C. Facts
D. Discussion
1. First Cause of Action (discrimination based on race)
2. Second Cause of Action (intentional infliction of emotional distress)
E. Conclusion
For persuasive writing, consider the order of your arguments. Ask yourself what will make the biggest impact. Most of the time, use your strongest argument first. Other times, you may want to lead with the most contentious issue, getting that out of the way for less prickly topics later. Sometimes, a substantive or jurisdictional threshold question may affect the rest of your argument, so start with that.
Always keep your reader in mind. You may have been researching, contemplating, and musing with colleagues for several weeks or even months on the issues. But your reader must catch up with you in the span of several minutes. To ease the reader into your world, consider writing broadly and then gradually narrowing down your issues. Alternatively, think of starting with simple concepts and then advancing to the more complex. When possible, use examples to aid the reader’s comprehension.
The flow of a document helps guide the reader, so provide as many road signs as possible, including transitions, topic sentences, and headings/subheadings.
Use connecting or transitioning words and phrases liberally, between both paragraphs and sentences:
To express similarity: similarly, analogously, as, accordingly, likewise
To express contrast: but, in contrast, conversely, however, yet, nonetheless, despite, instead
To indicate examples: specifically, namely, such as, including, including but not limited to
To indicate explanation: thus, therefore, accordingly, consequently
To expand upon points: indeed, moreover, further, in other words, in fact
To indicate summarization: finally, in conclusion, in summary
Your building blocks are sentences and paragraphs. Sentences should connect to each other and then logically flow into paragraphs.
Paragraphs are your basic unit of composition. Don’t worry about their length too much (although you should avoid very long paragraphs that may make it hard for your reader to maintain her attention). Instead, focus on whether each paragraph represents a single idea. Generally, the first few paragraphs will give you the best return on investment, so they are the most valuable in terms of expressing your point.
Each paragraph should start with a topic sentence. A topic sentence will tell the reader what the rest of the paragraph is about. Here is an example:
Like the worker in Jackson v. Charter Industries, Alice Corcoran was not an employee because Cook County did not control the performance of her work.
Here, the topic sentence illustrates the author’s conclusion about the application of the rule to the facts of the client’s case. The rest of the paragraph would describe the reasons why Cook County was not in control of her work.
Finally, in any document longer than a few pages, use headings and/or subheadings. Think of headings and subheadings as signs on a highway, giving readers directions to guide them on the proper path to take in comprehending the subject matter of each section.
The layout of the document is important. Look at the two contracts below. The first one—a solid page of text with no white space—is intimidating and tiresome to read. This type of layout can impede the reader’s ability to comprehend the document. The second contract, is broken up with bolded headers, numbered paragraphs, and spaces between paragraphs. Your reader will appreciate the visual space.
Terms and Conditions
- Term and Rent. Lessor leases to Lessee the above Real Property for a term of 3 years, commencing October 1, 2018, at the annual rental of 4,000 Dollars ($), payable in equal installments in advance on the first day of each month for that month’s rental, during the term of this Lease. All rental payments shall be made to Lessor at the address specified below. 2. Option to Renew. Provided that Tenant is not in default in the performance of this Lease, Tenant shall have the option to renew the Lease for one additional term(s) of 6 months commencing at the expiration of the initial Lease term. All of the terms and conditions of the Lease shall apply during the renewal term except that the monthly rent shall be the sum of $4,200. The option shall be exercised by written notice given to Lessor not less than 30 days prior to the expiration of the prior Lease term. (If no other time is inserted, notice shall be given ninety (90) days prior to the expiration of the prior lease term.) If notice is not given in the manner provided herein within the time specified, this option shall lapse and expire. 3. Use. Tenant shall use and occupy the Real Property for the commercial purpose of office space. The Real Property shall be used for no other purpose.
Terms and Conditions
- Term and Rent. Lessor leases to Lessee the above Real Property for a term of 3 years, commencing October 1, 2018, at the annual rental of 4,000 Dollars ($), payable in equal installments in advance on the first day of each month for that month’s rental, during the term of this Lease. All rental payments shall be made to Lessor at the address specified below.
- Option to Renew. Provided that Tenant is not in default in the performance of this Lease, Tenant shall have the option to renew the Lease for one additional term(s) of 6 months commencing at the expiration of the initial Lease term. All of the terms and conditions of the Lease shall apply during the renewal term except that the monthly rent shall be the sum of $4,200. The option shall be exercised by written notice given to Lessor not less than 30 days prior to the expiration of the prior Lease term. (If no other time is inserted, notice shall be given ninety (90) days prior to the expiration of the prior lease term.) If notice is not given in the manner provided herein within the time specified, this option shall lapse and expire.
- Use. Tenant shall use and occupy the Real Property for the commercial purpose of office space. The Real Property shall be used for no other purpose.
Most advice about writing will urge you to be concise. In the immortal wisdom of authors William Strunk Jr. and E. B. White in Elements of Style, “[v]igorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts.” While editing and revising, you’ll see a vast improvement after deleting unnecessary words and phrases. This decluttering process is essential.
Two particular ways in which to make a document more succinct include eliminating nominalizations and avoiding negative constructions.
A nominalization is a phrase that uses an abstract noun to do most of the work. Most of these vague nouns contain a hidden verb, and a verb is always the better choice. Here is an example of a sentence using a nominalization:
This memo will give an analysis of the dispute between the county and the vendor. (15 words)
That sentence can be improved by replacing the nominalization with a verb:
This memo analyzes the dispute between the county and the vendor. (11 words)
Look for the following nominalized phrases and replace them with verbs, as shown:
Nominalization: Conducted a careful examination
Concise Verb: ScrutinizedNominalization: Issued an announcement
Concise Verb: AnnouncedNominalization: Offered a suggestion
Concise Verb: SuggestedNominalization: Gave a report
Concise Verb: ReportedNominalization: Resulted in an increase
Concise Verb: Increased
Positive constructions are usually shorter than negative ones. Here are some examples:
not different = similar
not allow = prevent
not many = few
not include = omit
Additionally, negative constructions are confusing and difficult to understand. Consider the following sentence:
It’s not that our clients are ungrateful. But without additional funds and unless there are no fewer than five people to work on the project, it would be impossible to meet the deadline.
Can you quickly work out what it means without having to translate the negatives in your head? Here is a better way to reword that sentence:
Our clients are grateful. But they need additional funds and at least five people to meet the deadline.
Ahhh, legalese. You may think that legalese makes you sound like a lawyer. And it does—a pompous one. Just because you attended law school for three years and then had the wherewithal to pass the bar does not give you a free pass to use legalese. At its best, legalese is verbose; at its worst, it is confusing and patronizing. Forget about trying to sound like those cases you read in law school. They were written eons ago. Remember the premise we opened with: Your goal is to create an easily understood document.
Try to avoid wordy idioms. Here are some examples of less wordy alternatives:
despite the fact that = although
for the period of = for
until such time as = until
Also avoid redundant legalisms, where one or two words can do the work of three or four: full and complete becomes full, null and void becomes null, and true and correct becomes true.
If possible, don’t use Latin phrases. Yes, we know that the legal profession is replete with them and that they are sometimes terms of art and cannot be avoided, but often your reader will have to scramble to Google them. Use perfectly good English words/phrases instead:
a priori = from earlier
bona fide = in good faith
de facto = in fact
inter alia = among others
locus = place
sub modo = subject to modification
Briefs and motions are chock-full of highfalutin words even though easier words are a better choice. You may think that fancy words will make you sound important, but simpler words will improve reader comprehension. Do you want the reader to have to read a sentence twice to understand it? Instead of behavioral dynamics, use behavior. Instead of predicated and initiated, use decided. Instead of Sturm und Drang, use turmoil. Instead of sub rosa, use performed in secret.
Passive voice can trip up new writers. Passive voice occurs when the object of an action is turned into the subject of the sentence. Huh?
Let’s untangle this knot with an example of passive voice:
The county offices were damaged by fire.
A better way to write this sentence would be in active voice:
Fire damaged the county offices.
To identify passive voice, ask yourself who or what is doing the action. Is the person or thing doing the action (active voice) or having the action done to it (passive voice)? In the first example sentence above, county offices is in the subject position even though it is the object of the action (damage). Because the fire is doing the action, it should be at the front of the sentence as the subject, as it is in the second example sentence.
To spot passive voice, look for a form of the verb to be (e.g., am, are, is, was, were, have been, had been, will be, will have been, being) plus the past participle (a verb that typically ends in ed). In the above example, the phrase were damaged indicates passive voice.
Strunk and White urge writers to use active voice because it is “usually more direct and vigorous than the passive.” It is also usually more concise. So why is passive voice used? One reason is to deflect culpability:
Mistakes were made by our client. (6 words)
This sounds a little less blameworthy than the following, which is in active voice:
Our client made mistakes. (4 words)
Sometimes, passive voice is preferable, but we will leave the politics and ethics of that for another day. The important point is to know the difference between active voice and passive voice and to stick with active voice most of the time.
Revising is the most crucial phase of writing. Strunk and White said, “Revising is part of writing. Few writers are so expert that they can produce what they are after on the first try. Quite often, you will discover, on examining the completed work, that there are serious flaws in the arrangement of material, calling for transpositions.”
In the fourth edition of Elements of Style, Strunk and White urge writers to use the cut-and-paste function of a word processor (obviously not in play when the little treatise was first published in 1959) and to “not be afraid to experiment with what you have written.” Make a new version, dating it or using some kind of naming convention (e.g., “Brief edit 2”) so you can keep track of your various versions. Edit line by line and cut unnecessary words. If you don’t like your edits after a day or two, you can always go back to a previous version.
Read your work out loud at least once to gauge the rhythm. Are there spots that trip you up? Your ear might be more attuned than your eye to clunky construction.
Also think about sentence endings. Writers sometimes think that the most prominent position in a sentence is the beginning. Actually, it’s the end of a sentence that usually has the most impact. For example, look at the following sentence:
The City of Springdale respectfully asks this court to enter a summary judgment and find that there is no reason to delay enforcement or appeal under Rule 304.
Now look at this revision:
The City of Springdale respectfully asks this court to enter a summary judgment and to find under Rule 304 that there is no reason to delay enforcement or appeal.
See how the second version pops a bit more? End your sentences emphatically, and you will create oomph.
If possible, allow edits and revisions to percolate in your brain for a day or so—that is, “sleep on it.” Then, give your piece a comprehensive final proofreading. Double-check spelling. Revise punctuation. Review grammar. Don’t rely on spell-check or your word processor’s grammar feature. Ask a colleague to proofread one last time before submitting, especially if you have revised many times and are sick to death of looking at your work. You may be surprised at the number of errors that he will catch.
Whether you are right out of law school or a grizzled veteran, legal writing is no easy task. A well-crafted legal document is one of the most important tools of a lawyer. Edit robustly; experiment liberally; and always, always remember the goal: to transmit easily comprehensible information to your reader.
This article is an updated version of one that originally appeared in The Public Lawyer, Summer 2018, volume 26, number 2.
