A Young Lawyer's View on the Importance of Persuasive Writing

In the beginning of my internship, I was very intimidated by the idea of putting what were at the time my limited writing skills up against those of other, more seasoned attorneys. By the end of my time as an intern, being intimidated was no longer an option. Does that mean I consider myself a good enough writer to trade prose with the likes of Bryan Garner or Justice Scalia? Not yet. One day, possibly, but it will not happen if I do not continually work at improving my writing, just as I work toward improving every other skill I need as a trial attorney. I must be as confident in my writing as I am in my ability to stand in front of a jury and present my case. One is not more important than the other.

Many attorneys, however, do not devote to writing the level of attention it deserves. There is a vast difference between the practice of civil and criminal law in terms of motion writing. None of my colleagues who practice civil law every day would ever consider filing a memorandum devoid of a qualitative statement of facts or applicable legal analysis. In the criminal law world, however, this happens more often than many would admit.

One reason for this difference is likely the procedural differences between the criminal and civil worlds. Oral hearings, such as those addressing evidence suppression, seemingly happen much more frequently in criminal cases than in civil cases. Conversely, many more civil issues than criminal issues are settled on the briefs; critical decisions can be, and are, made based on written words.

Another likely reason civil attorneys seem to devote more attention to their briefs and memoranda is the nature of the issues being litigated. Often the issues dictate the level of writing required to handle a case. Civil summary judgment issues are very rarely decided on the same basis or set of facts. Suppression issues in criminal cases, however, all tend to hover around the same few issues and are thus more suited to being determined based on oral argument. These examples are all broad generalities and are not meant to be completely inclusive of all criminal and civil cases. Of course, there are plenty of cases in the criminal world demanding the utmost attention when drafting motions, and there are plenty of criminal defense attorneys devoting their undivided attention to those motions.

The prevalence of oral argument has undoubtedly left many criminal attorneys wondering why they should put any real effort into writing a brief that may or may not be read, but instead set for an oral hearing. That attitude, however, is the first dangerous step in a vicious cycle. Once that becomes a court's standard operating procedure, very few attorneys are going to put in the extra time and effort needed to write highly persuasive motions.

The result has the potential to be extremely damaging. A perfect example of this is a motion I found so devoid of effort, I framed and hung it on my office wall. It was written by a licensed and seasoned defense attorney seeking to persuade the court on a matter regarding expert witnesses. Below is the memorandum, verbatim and in its entirety sans the code section from the Ohio Revised Code.

MEMORANDUM IN SUPPORT
O.R.C. (cite omitted).

What do you think of that attorney? Would you consider him competent, or is he just going through the motions of filing the memorandum because he knows it will be set for oral hearings? What if the judge denied the request for the oral hearing and chose instead to decide the issue on the briefs? I can say with all the confidence in the world, had that situation presented itself, my memorandum contra would have prevailed.

There is no difference in the level of dedication and commitment to good writing that is needed to submit writing samples to potential employers. I searched for a job for almost two years after passing the bar. The vast majority of résumés I submitted had required writing samples attached. Even if a prospective employer did not require a formal writing sample, most asked for a cover letter, which is very much a writing sample. The reason employers want this information is obvious. Both cover letters and writing samples represent your first substantive impression, and nobody is going to hire somebody who cannot come across on paper as competent, intelligent, and proficient.

Lawyers are workers of words; it is their true medium. It does not make a difference whether those words are written or spoken. From my first day of legal writing in my first year of law school, it was pounded into my head that if I could not write, I would be dead in the water. My professor showed us a prosecutor’s brief that was written so poorly that the court refused to accept it entirely on the grounds that it did not even resemble what the court considered to be a brief. Most recently, in the Court of Appeals for the Seventh Circuit, a lawyer is facing potential disbarment hearings because his writing amounted to nothing more than "gibberish," according to the court. Stanard v. Nygren, No. 09-1487 (7th Cir. Sept. 19, 2011). The problems of poor writing occur time and again in courtrooms all over this country.

Because so much of our work is so heavily reliant on reputation, it does not make sense to practice law by proverbially tying one hand behind our backs. Often judges are presented with our written words before ever hearing those brilliant oral arguments we are convinced will turn the entire legal community on it ears. When you draft a brief or a motion or a memorandum, your audience is your judge. This is no different than when you are speaking to a jury in court. Skill with the written word should be just as highly developed as skill with the spoken word. With both, the audience decides whether your ability to persuade is enough to win the day.

The more intimately familiar we are with our cases, the better they are presented. I cannot think of a more effective way to become acquainted with the specific facts and nuances of a case than to present those facts to the court in one’s own personal style of writing. The more time you spend preparing a case, the more proficient you will be with that case. Regardless of the outcome, if you can walk away with the respect of the court, you have won.

Keywords: persuasive writing, developing writing skills, motion writing

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