August 01, 2016 article

    Four Principles to Help Guide Your Legal Writing

    By Jillian Singer

    The term “trial attorney” can appear misleading because most cases settle before trial and many issues are disposed of through pretrial motions. This makes legal writing extremely important. In my transition from public service to civil litigation at Balestriere Fariello, I’ve had the opportunity to revisit my writing skills and understand where I need to improve and how to improve. Refining and improving legal writing never stops for any attorney, but my experience has taught me that it should be guided by these four principles: Be clear, be concise, be engaging, and aim for elegance. 

    Be Clear

    Speech belongs half to the speaker, half to the listener. 
    ―Michel de Montaigne

    For an advocate writing a brief or motion to persuade a judge to decide in the client’s favor, little is more important than clarity. To that end, it is important that your words make sense not just to you but also to your reader. In practice, grammar, punctuation, and word usage are essential so you can write what you mean and mean what you write. Constantly evaluate your writing to make sure it’s clear. I find it helpful to reread drafts after I’ve finished working on them for the day, with fresh eyes. I often catch the most typos and realize which points need further development while sitting on the subway on my way to and from work. 

    Be consistent with terms used, even when your instinct may be to use a synonym to avoid sounding repetitive. In legal writing, the reader is aware that terms often have a precise operational definition. By using a slightly different word to explain the same thing, you risk confusing the reader, who may now think you are referring to something slightly different.

    Forget the legal jargon and opt for simple, plain language where appropriate. While precise terms are necessary at times for an attorney to accurately convey the law or an argument, always evaluate your writing to determine when it is necessary to use a precise legal term and when it is not. 

    Be Concise

    It is my ambition to say in ten sentences what others say in a whole book.
    —Friedrich Nietzsche

    As many lawyers have experienced, it is easier to comply with a higher page limit for a brief than it is with a lower page limit. Legal advocacy and interpretation of the law can lend itself to long-winded, meandering writing. As an advocate, avoid that. Make arguments that get to the point, including detail when necessary. Always evaluate your writing to determine if there is a more succinct way to tell the reader what you want the reader to know. 

    Be Engaging

    You’re not allowed to use the sprinkler system to keep your audience awake.
    —Ted Goff

    It will not matter how clear and concise your writing is if you fail to engage the reader. Legal writing tackles challenging and sometimes dry subject matter, but there are ways to build your sentences through shifting sentence length and syntax variation to keep your audience engaged as you make your point. Every sentence should not be the same length, nor have the same structure. Some sentences should be long, perhaps stringing together minor points made previously or setting the foundation for more substantial points to be addressed in the sentences to follow. Other sentences should be shorter. Keep your reader invested in your point by making your writing lively. 

    Own your writing by having an authentic voice. After reading several cases and statutes, it’s easy to be susceptible to the dry artificial tone that characterizes some court opinions. Prevent this by reviewing your writing to see if you can hear yourself in it. If you can’t, reword it. 

    Aim for Elegance

    Like all magnificent things, it’s very simple.
    —Natalie Babbitt

    If you can explain complex legal issues in a simple, concise, and engaging way, then you have done a good job. If you can do it with elegance, you’ve done a great job. Striving for elegance makes legal writing a creative endeavor, making the writing process an interesting challenge throughout your career. However, it is important to master good legal writing before focusing on writing an elegant brief. When I’m able to simply, concisely, and engagingly lay out the points in a brief by the filing date, I consider elegance in my writing. For me this includes reading a variety of cases on a particular topic and noting how each court summarizes the issue, paying attention to which words are most easily and deeply understood by me as the reader. I can then make subtle changes to my writing, injecting turns of phrase to more artfully make my point. 

    Keywords: litigation, solo practitioners, small firms, legal writing 

    Jillian Singer is an attorney with Balestriere Farielloin in New York City, New York.

    Navigant Consulting is the Litigation Advisory Services Sponsor of the ABA Section of Litigation. This article should be not construed as an endorsement by the ABA or ABA Entities.

    Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).