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December 16, 2014 Articles

The Young Litigator's Approach to Legal Writing

By Courtney E. Walter

All lawyers have been there—the first “official” day as a lawyer at a brand new job. While undeniably exciting, it may also be overwhelming. For some, your new law firm will host an orientation and provide you with a structured training program. You will be given all the details on your role, your responsibilities, and the resources you may use. For others, you are thrown into the mix: no training program, no orientation, and no idea where to start. As an attorney, no two days are the same. One day, you may be answering phones and responding to e-mails, while the next day, you may be sitting alongside a partner during jury selection. Each day offers another opportunity to learn something new in a training program that continues throughout your career.

As a young litigator, however, there is one responsibility that is inevitable: you will write, and you will write a lot. The partners for whom you work will depend on your ability to convey ideas clearly and concisely on paper, whether in legal memoranda, correspondence, motions, appellate briefs, or even e-mails. When more senior associates or partners handle oral arguments, newer associates are often tasked with the responsibility of building the underlying legal framework and creating the written argument. Good legal writing is even more important in federal courts, which often do not schedule oral arguments at all. Your approach will differ for each assignment, attorney, and law firm. But your writing must always be persuasive, powerful, and supported by relevant and credible legal authority.

In the legal community, where reputation is everything, judges often remark that credibility and reputation may be built on (or destroyed by) filings with the court. As the Supreme Court of Minnesota cautioned in In re Disciplinary Action Against Hawkins, “[p]ublic confidence in the legal system is shaken when lawyers disregard the rules of court and when a lawyer’s correspondence and legal documents are so filled with spelling, grammatical, and typographical errors that they are virtually incomprehensible.”

Understanding the importance of developing your writing skills is the first step. Using the legal memorandum from your second-year legal writing and research class as a guideline to organize your pleading may not be the right answer. It will take time to identify what works for you, your boss, the judge, and your client. Take a deep breath, know that you are capable of doing this, and begin to develop a personalized approach that works.

In your first few years, there are key points that every young litigator should know.

Know Your Boss
When you start a new job, make a conscientious effort to learn your boss’s approach to legal research and writing. Learn what makes her tick. New associates often complain about the lack of communication between partners and associates when it comes to assignments. But it is only natural that the partner will not have unlimited time to explain an issue. Some of the burden is on you. Analyze the previous pleadings and see how your boss writes. While some lawyers are verbose, others are short and to the point. On paper, you and the partner share one voice. So learn to adapt to her style when you draft a pleading. Do not be afraid of constructive criticism, and ask your boss for feedback on your drafts. She will not be happy if the same mistakes need to be corrected every time. 

Know Yourself
After three years of law school, many of us know our strengths and weaknesses when it comes to writing. Some of us have already thrown up our hands in despair when we received less than satisfactory grades in legal writing class. Fortunately, as lawyers, we are no longer graded on our writing. But the quality of our writing now affects the lives of the clients we represent. To improve your writing, focus on the weaknesses you have identified, as well as those a boss or colleague points out to you. As a new attorney, I kept a running list of the issues that I needed to work on. Before I handed in each draft, I made an effort not to repeat my previous errors. Have pride in your work, and it will show in your writing.

Know the Issue
Before you sit down to begin writing, make sure that you understand the assignment. Do not leave the partner’s office without knowing what he wants, and do not be afraid to ask questions. You may be concerned that a partner will get mad and assume you are “dumb” if you ask too many questions, but senior attorneys agree that the more questions you ask, the better. No one wants to waste time redoing an assignment from the bottom up. If you are asked to draft only the memorandum of law, do not draft the entire motion. If you are asked to research one issue, do not provide background on other, peripheral issues. In a law firm, time is money, and money is time. If you think the law says something different from what the partner expected, let her know that as soon as possible.

Know Your Audience
Your audience will dictate your approach to an assignment. It will determine whether you should be argumentative, persuasive, or neutral. It will determine whether you should be formal or informal. It will determine whether you should be reverent, or whether you have a little more room for wiggle.

Know Your Deadline
Remember to ask for a deadline! The most important commandment for new attorneys is to know the deadline, and also to know what might affect the deadline. Know your local rules. Know how a particular form of service may alter a deadline. Know whether extensions are given, and know when you need to swallow your pride and ask for one. Factor in whether your boss requires a number of drafts prior to the final submission. Know whether the client needs time to review your drafts. And always give yourself more time than you think you need.

Know Your Priorities
Your biggest mistake in setting priorities may be expending time and energy on an assignment that piques your interest but is not actually due for weeks, at the expense of an assignment that needs to be done quickly but is a bit on the dull side. Be sure that you have a handle on your calendar and your boss’s calendar, and that you have factored in time for emergencies. Inevitably, two drafts will be due at the same time on the same day. Contrary to popular thinking, however, you are only one person, and you can do only one thing at a time. When a judge pushed up a motion hearing by two weeks in one of my cases, and I had not yet drafted a response, I had to reprioritize. I looked at my to-do list and identified the other tasks that could wait. I e‑mailed the partners who had assigned those pleadings, explained the situation, and asked whether their deadlines could wait. In another case, I asked opposing counsel to agree to an extension of time to file a response.

Know the Law
Before you sit down to write an argument, make sure you understand the law. Do the causes of action arise under statutes or under common law? What are your remedies? Understand the procedure. Often lawyers want to argue the facts. Sometimes, this is appropriate, but in other circumstances, the facts may not be relevant. Drafting a motion to compel will be different from a motion to suppress or a motion for summary judgment. When a judge recognizes that you are not operating within the proper legal framework, your writing will lose credibility. And judges appreciate it when a lawyer can concede points for the sake of efficiency that do not adversely affect her client’s position.

Know Your Argument
Be sure to outline your argument. This step is crucial to your success. Know where your argument is going, and decide how much space should be allocated to each issue. Identify which issues are—and are not—important. If you are passionate about your client’s position, you may become too focused on issues that are less important to the court. Do not become sidetracked by these irrelevant issues. Sometimes, a good night’s sleep will refresh your mind and help you prioritize, or even identify issues that you had not previously considered. Be sure to double-check citations and proofread your assignment. Proofread once, twice, even three times.

Know Where to Look
Some young attorneys are inundated with resources, especially at larger firms. At other firms, you will be forced to “figure it out.” Naturally, you’ll use your legal research database to determine what the law is. But people at your law firm may be your greatest resource. Do not be afraid to ask other associates for assistance. You can also ask the paralegals and legal assistants for help. Know where to find them. They can save you time and energy in the long-term. When you do ask a partner or another associate for guidance, be sure to convey that you have tried to find the answer for yourself. There is nothing worse than a new attorney walking into a partner’s office saying, “I can’t find what you were looking for,” simply because she did not make the effort. You want to make a good impression.

Know That This Is No Longer Law School
Your legal research and writing professors will not give you daily guidance, and there are no office hours. Deadlines are not neatly identified in a syllabus; they may change. No one will force you to learn to improve your writing. The ball is in your court. It takes patience and perseverance to identify your best approach to legal writing, but the long-term rewards will make it all worthwhile.

Keywords: young lawyers, legal writing, briefs, motions

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