Use clear language instead of the dreaded legalese. A brief is a story and then an argument to support your “happily ever after” ending.
Consider the following statement in a fact section:
Counsel for Plaintiff sent a letter to Defendant dated May 4, 2016, as the requisite prelitigation notice concerning the ongoing dispute vis-à-vis certain amounts due and owing to the Plaintiff. It is attached hereto as Exhibit A and hereinafter referred to as the “May 4, 2016, Letter.”
What point is the writer trying to make? The point is that the plaintiff’s attorney sent the required demand letter in May 2016 and that the letter is attached. Yet, in reading the actual sentence, that simple point is lost.
Using plaintiff and defendant is not very compelling. What if there are multiple defendants? What if this is the fifth brief the judge has had to read today, and she cannot remember exactly which “story” this is trying to tell? Using names for the parties fixes that confusion.
Is the actual date important? If the plaintiff, let’s say Candice Jones, and her attorney sent more than one demand letter to the defendant (James Woods), then the May 2016 reference may be important; otherwise, the judge knows which demand letter we are talking about because there was only one.
Why is the exhibit citation/reference different from a case citation? If you write the sentence and reference “Ex. A” in a citation, it is safe to assume that we know you are referring to Exhibit A attached to your brief.
Finally, is Ms. Jones’s attorney a player in this story? If not, then why bring her into it? The demand letter is presumably sent by her attorney anyway, but if for some reason it was not, then that will be obvious by looking at the exhibit itself.
Now the edited version:
In May 2016, Ms. Jones sent the required presuit demand letter to Mr. Woods. Ex. A.
Notice that the differences are small, merely simplifying and rephrasing. However, the readability is exponentially increased. If you were a judge or a law clerk, which sentence would be easier to read and ultimately be more persuasive?
Another highly effective change is to eliminate string citations, confusing punctuation, and overuse of explanatory phrases.
Consider the following example of a string citation:
Jones v. Jones, 345 So. 3d 345, 347 (Fla. 2010) (quoting Williams v. Williams, 123 So. 3d 123, 124 (Fla. 1999) (“[S]ummary judgment is proper only when . . . the movant shows that no genuine issues of material fact exist between the parties. . . .”) (internal citation omitted)).
This citation is emblematic of three common problems. First, it cites multiple cases for a very basic premise about summary judgment. Second, it compounds the issue by using a quotation for that universally known summary judgment statement. Third, the quotation selected is littered with extraneous punctuation, diminishing its impact from not much to less than nothing. While you may think that more case authority and quotations only bolster your point, the opposite can be true as the reader will either skip over the subsequent cases or have their reading interrupted by the citation sentences.
A March 2017 article by Jack Metzler gives us a streamlined solution by adding a new signal to our legal lexicon: (cleaned up). This signal is meant to eliminate the quotes within quotes, ellipses, brackets, and internal citations that are not pivotal to the point the writer is making. Additionally, the signal eliminates (internal citations and internal quotation marks omitted) and similarly distracting phrasing.
The signal (cleaned up) has caught on to the point that you can search #CleanedUp on Twitter; read an entire Appellate Practice Journal article on it; and find examples of its use by judges across the country, including the obligatory explanatory footnote. See, e.g., Chassels v. Krepps, 235 Md. App. 1, 174 A. 3d 896, 901 n.3 (2017).
Now compare that original citation sentence with this one using (cleaned up):
Jones v. Jones, 345 So. 3d 345, 347 (Fla. 2010) (cleaned up).
My point is the same and the quote is the same, but the citation is much shorter and far less disruptive to the flow of my prose. Limiting extraneous and unnecessary information in your in-text citations greatly increases readability and, in turn, the likelihood that your brief will make an impact on the audience (i.e., the court).
No one is a legal writing saint. I often struggle with using 20 words when 10 will do. My writing can contain words or phrases that teeter on the edge of bourgeois. I spend more time on first drafts than most of the lawyers I know and even more time on editing subsequent drafts. I spend a good bit of that time paring down; refining turns of phrase; and reorganizing into shorter, more easily digestible sections.
And that’s the struggle—framing our writing as a human would read it instead of how a lawyer “should” sound. It takes time and vigilance to change your writing. We will not all be a legal Hemingway: pithy, concise, and memorable. So, start small. Use (cleaned up) in your next brief. Try writing a section and then having a nonlawyer (aka, a more sane and normal person) read it and give feedback. Investing time and effort in improving legal writing is good business. Not only does it help you communicate more effectively with judges, but it also helps you communicate more effectively with your clients.
Too often, we in the legal community forget a simple truth: The purpose of writing is for it to be read. In living that truth, remember that you read and wrote as a human before writing as a lawyer. Reclaim that part of your humanity; you’ll be glad that you did.
Jake Brainard is of counsel at Cinotti, LLP in New York, New York.