Write for Your Audience
Some lawyers have only one approach to legal writing that they try to use for various applications—briefs, research memos, letters to clients, and letters to opposing counsel. It’s typically part analysis and part advocacy, but it is not a particularly effective specimen of either. One size, as they say, does not fit all.
Rather, you must write differently depending on who will be reading it. As a junior lawyer, most of your writing will fall into two distinct categories: analysis and advocacy. When you are writing a research memo, you are presenting analysis. You are giving the answer to the question you were assigned to research. Maybe the law is in your client’s favor, maybe not. You must be objective. Sometimes junior lawyers are afraid to present a conclusion that is at odds with what they think the partner or the client expects, and they shade their writing to avoid presenting an unfavorable conclusion directly, or they dance around the question and never really get to a clear answer. This is a mistake. If you are reasonably certain that the client will violate the law by pursuing its proposed course of conduct, and you have substantial legal authority to back you up, say so. Don’t use hedging language such as “It could be argued that the client will be in violation of the law.” It’s better for the partner (and the client) to know now that the law is not favorable than to have them discover it after they have traveled some distance down the wrong road.
The same rationale applies to your written communications directly to a client. A partner might ask you to draft a letter to a client analyzing the client’s potential liability under various legal theories, or a client might ask you a particular legal question and ask you to send them a written response. You must give the client a clear and correct answer even if it is not what they are hoping to hear. In this context, you are not advocating—you are providing analysis that will guide the client’s actions. Preventing your client from making an error that will lead to liability is one of the most valuable services a lawyer can perform.
Initially, you will probably write research memos for partners or other senior lawyers in your firm. Determine how much formality your reader expects. Perhaps your reader wants a memo with the same formal structure as you learned in law school: (1) introduction, (2) statement of facts, (3) issue(s) presented, (4) analysis (broken down by headings and subheadings), and (5) conclusion. You might be expected to follow this format if you are drafting a memo for a client’s board of directors or executive team. Where internal research memos are concerned, a partner is less likely to care so much about the formality of your structure as the substance of your analysis, and perhaps a simple email will be preferred to a formal memo. Things move much more rapidly in a law firm than in law school, and it’s important now that you are a lawyer to get to the point quickly. When you receive a research assignment, ask the lawyer giving you the assignment what format they would prefer for your response.
Whether you are writing a research memo or an advice letter or email to a client, cite to the legal authority that is directly on point, whether it’s a statute, a regulation, or precedential case law. Often there will not be legal authority directly on point, and you must analyze how a court or government agency is likely to decide your case in light of the law that currently exists. Limit your discussion to that law, however. There is no need to start with a discussion of broad principles of law or decades-old U.S. Supreme Court cases. If the issue is whether the client will be liable for sexual harassment by a coworker where the victim of the harassment did not report it before she quit, there is case law in almost every federal circuit and in many states on this question. Move directly to discuss the case law in the relevant jurisdiction. Do not begin with a recitation that Congress outlawed sex discrimination in Title VII of the Civil Rights Act of 1964, and that in Meritor Savings Bank v. Vinson in 1986, the U.S. Supreme Court held that sexual harassment can be a form of sex discrimination. You might start an appellate brief in this fashion (although there are better ways to start appellate briefs). It wastes time and space in a research memo or client communication, however. By now, everyone knows that sexual harassment is generally unlawful.
If you are writing a brief to a court or government agency or a response to a demand letter, by contrast, you will be engaged in advocacy. You will not be presenting an objective analysis—you will be advocating for your client’s position. For example, you will argue that your client is not liable for the accident, or that the court should compel the dispute to binding arbitration. You will not want to ignore adverse legal authority, but instead of addressing it objectively, you will argue why it does not apply to the specific facts in your case.
The level of formality in your writing of advocacy will vary depending on your audience. Writing a brief for the U.S. Supreme Court or your state’s supreme court, or for federal or state courts of appeals, requires a high level of formality. Those courts have rules that specify in detail what must be included in a brief and in what order. Writing a brief for a trial court requires less formality, as those courts have many cases on their calendar and must focus on the key issues quickly (there is generally no need to include an “issues presented” section, for example, and you should only include essential facts). Writing a brief to a government agency or an arbitrator or mediator often warrants less formality too. Writing to opposing counsel should be even less formal. “Less formal” does not mean that you don’t need to worry about spelling and grammar, or that it’s fine to use slang or satire. Less formal advocacy, such as briefs to mediators or responses to government agency investigators, may be presented in the form of a letter as opposed to in a pleading format.
Contract Writing Is Not Just a Different Animal, It’s a Whole Different Zoo
Most young lawyers will also write contracts and agreements at some point during their legal career. Settlement agreements are a fairly simple type of contract. Executive employment contracts and stock option agreements can be more complex. Commercial leases and corporate acquisition or finance agreements can be among the most complex you will encounter. If you are writing these agreements, you will want to follow the appropriate contract writing style, but do not use contract writing style for other types of legal writing! Contract writing is a type of writing distinct from analysis or advocacy. An essential element of contract writing is precision. Courts look at contracts to determine what the parties intended, so every phrase—every word—has meaning. As a result, to ensure clarity, lawyers who draft contracts usually include many defined terms. A defined term usually appears initially capitalized and in quotes and sometimes in parentheses: (“Defined Term”).
Defined terms are important for distinguishing between various parties and among other persons, entities, dates, and subjects that are addressed in an agreement. For example, you might write a settlement agreement starting as follows:
This Settlement Agreement (“Agreement”) is entered into by and among Plaintiffs John Doe (“Doe”), Mary Roe (“Roe”), and Thomas Toe (“Toe”) (collectively “Plaintiffs”), and Defendants Frank Flow (“Flow”), Gregory Grow (“Grow”), and Sarah Slow (“Slow”) (collectively “Defendants”), with Plaintiffs and Defendants collectively referred to as the “Parties,” with respect to the settlement of the lawsuit entitled John Doe, et al. v. Frank Flow, et al., in the Superior Court of Fulton County, Georgia (the “Court”), Case No. 22-02345-GLW (the “Action”).
In writing contracts, unfortunately, it is often necessary to write tedious and prolix sentences such as the one above in order to clearly define and differentiate the parties and the subjects of the agreement.
Sometimes junior lawyers who have had exposure to contract writing do not differentiate between writing contracts and writing analysis or advocacy, and they write something like this:
On July 16, 2023 (the “Subject Date”), Lily Larson (“Larson”), an employee of Big Corporation (“BC” or “Client”), entered the Nashville facility of BC (the “Premises”) using her employee badge and proceeded to the unoccupied security office (“Security Office”), where she disabled the security cameras monitoring the corridor of said Premises leading to the laboratory (“Laboratory”). She then proceeded to said Laboratory. Thereafter, she was found by a security officer (“Officer”) as she attempted to open the door to said Laboratory with what appeared to the Officer to be burglar tools. Larson was detained by the Officer until the Nashville Police Department (“NPD” or “Police”) arrived and arrested her.
Don’t write like this. Your reader will be exhausted upon finishing your first paragraph. Unlike in contract writing, you must use defined terms sparingly when writing analysis or advocacy. “Sparingly” means only where absolutely necessary. Most of the defined terms in the paragraph above not only are unnecessary but also clutter the narrative, making it difficult to follow. This reads much better:
In the predawn hours of Sunday, July 16, 2023, Big Corporation (“Company”) employee Lily Larson used her employee badge to enter the Nashville location of the Company. She went to the unoccupied security office, where she disabled the security cameras monitoring the hallway leading to the laboratory. She then walked down that hallway to the laboratory. Shortly afterward, a security guard caught her trying to open the laboratory door with burglar tools. He held Larson and called the police, who came and arrested her.
Another remnant of contract writing that sometimes finds its way into analysis or advocacy is writing numbers twice: “The truck failed four (4) inspections before the accident.” While a number might be written this way in a contract just to be sure everyone understands that the parties really mean four, it only clutters other forms of legal writing.
If you ever catch yourself using contract writing techniques when writing analysis or advocacy, stop! Put the contract language away and go back to normal legal writing.
“Draft” Is a Widely Misunderstood Term
Many new lawyers make a fundamental error at the start of their careers because they misunderstand the meaning of the term “draft.” You might think of a draft as a document in rough form, to be reviewed and edited substantially before it becomes final. That’s not what it means in a law firm or to your client, however. To the partners in your firm and the firm’s clients, a “draft” means a document that is essentially perfect, except that the partner or the client might want to make a small change or a fact correction in a couple of places. You simply must not give a document to a partner or a client that is still in need of substantial revision or supplementation, or that still has spelling or grammatical errors that must be corrected. It is your job to take care of all of those things before you present the document to the partner or the client.
This means that you must give yourself plenty of time to get the document into pristine shape. Give yourself time to produce several successive versions of the document if necessary. If you need more facts or information to complete the document, get them from the partner or the client before you finish writing. Do not leave blanks in the document for the partner or client to fill in, and do not leave comments in the margins or notes in brackets saying such things as “[need full names of witnesses]” or “[need to verify dates].” Be sure that your draft is complete, and that it conforms to any applicable page limits too.
Always Start with an Outline
Once you have gathered all of the facts you need and have completed your research of the applicable law, don’t start writing the brief, memo, or letter just yet. Write an outline first. The outline will give you an overview of what the final written product will say. It is important that you know where you are going before you start writing. It is easy to tell when a document was not preceded by an outline. The document seems poorly organized and does not flow. You do not want your reader thinking that they are following your argument only to have it veer off in an unexpected direction.
Your outline should be the roadmap for the orderly progression of your argument. Suppose you are writing a brief in opposition to a motion to dismiss your client’s lawsuit against a former employee for misappropriating trade secrets and using them to divert your client’s customers to his new employer. The motion to dismiss argues that the information the former employee took did not amount to trade secrets, and that the former employee committed no legal wrong in contacting the customers he served when he worked for your client. Your outline of your argument might look like this:
- The defendant ex-employee took not only the customers’ names but also their contact information (including cell phone numbers and email addresses), their order history, and their pricing structure.
- The foregoing information has economic value from not being generally known by others, and your client took reasonable efforts to keep the information secret.
- The information taken also constitutes “confidential information” covered by the confidentiality and nondisclosure agreement signed by the defendant upon being hired by your client.
- The defendant used the information taken not merely to notify the customers that he moved to a new company but to solicit them to do business with his new company by offering them better pricing than your client offered.
- Seven customers terminated their business relationships with your client and moved their business to the defendant’s new employer, causing a loss of more than $300,000 in business for your client.
- The defendant’s conduct amounts to:
- a violation of the Uniform Trade Secrets Act;
- a breach of the defendant’s confidentiality and nondisclosure agreement; and
- tortious interference with contract and/or prospective business advantage.
If you take the time to write such an outline, it will be easier to start writing, and your writing will flow easily from one point to the next. The half hour or so you spend writing your outline will be a worthwhile investment, and it will make writing the brief go much more quickly than if you start writing immediately and lurch from topic to topic without an outline.
Cover Every Base
Too frequently when reading a draft of a brief, there is a sense that something is missing, even though all of the pages are there. What is usually missing is a response to some of the case law cited by the opposing lawyer, and even sometimes a response to some of opposing counsel’s arguments. Failure to address every argument and case cited by your opponent is unacceptable. Although you might not think an argument or case citation is worthy of attention, the court might disagree. And where will that leave you? A page limit is not an excuse to leave out important portions of your brief. If you are out of room, you will need to go back and edit the brief so that you have more room to fit in what you left out initially.
Even if one or more of your opponent’s arguments sound ridiculous to you, you still must address them in your brief. You need not spend much time on them. Simply cite a case or two on point that refute the argument and move on. You can even do so in a footnote if you are seriously short on space. You could also group all of your opponent’s apparent throwaway arguments and address them together at the end of your brief under a heading of “Plaintiff’s Remaining Arguments Are Without Merit.”
Similarly, you must address every citation of legal authority that appears in your opponent’s brief. You might find that some of them are quite far afield from the relevant issues in the motion, but you must still explain to your reader why they do not apply in your case. Again, use a footnote if you must, but do not leave any citation of authority unanswered. When you think you have finished the first draft of your brief, take a hard copy of your opponent’s brief and manually check off every argument and citation of authority that you addressed in your draft. If anything is left unchecked, go back and work a discussion of it into your brief.
Never Cut and Paste
Readers can tell when part of a brief was cut and pasted from somewhere else—a previous brief, an article or treatise, or the product of an AI legal research tool. The citation style is almost always different (e.g., citations to the “Superior Court” in the same brief appear as “Superior Court,” “Super. Ct.,” and “Sup. Ct.”), and the syntax and flow of the writing suddenly change. You should assume that partners and most judges can detect these shortcuts as well.
Not only does cutting and pasting make you seem like a lazy lawyer and undermine your credibility, but it is also dangerous. You don’t know if what you are cutting and pasting is actually correct. You don’t know if the author of what you are using even read the cases and applied them properly to the argument presented. You could be citing authority that is wildly off base (and perhaps itself cut and pasted). Another big problem with simply cutting and pasting language from a case from sources other than the case itself is that while the language from the case might be correctly transcribed, the holding in the case may be directly opposite of your position in your case. If you simply cut and paste the language from the case and add the case citation, you will not know this.
Let’s say, for example, that you are arguing in a brief that a consumer’s claim against the manufacturer of a defective product must be submitted to binding arbitration per the agreement she signed when she purchased the product, despite the fact that she now claims she did not know what she was signing. The law on this issue is fairly straightforward, so you lifted some case law and some language from one of the cases in a brief you found in your firm’s brief library, but you didn’t bother reading the cases you cited because you were running behind on meeting your deadline. Then, when you are standing before the court arguing your motion, your opponent says, “It’s interesting that the defendant cites the Morales case, because in that case although the court recognized that ordinarily a consumer who signs an arbitration agreement must arbitrate and cannot claim not to have understood what she was signing, the court held that where the defendant has created arbitration agreements in other languages and did not offer such an agreement to a consumer who cannot read English, the consumer is not bound to arbitrate. My client does not speak or read English, and she requested an agreement in Spanish that we know the defendant has prepared, but they never offered it to her.” At that point, you will have likely lost your motion and, worse, appeared to the court to be a careless or lazy lawyer.
Had you instead read the entire Morales decision before citing it in your brief, you might have chosen to cite a different case, or at least you would have been prepared to address the lack of an arbitration agreement in Spanish. Therefore, you must always read the cases you cite in your brief in their entirety.
Write Persuasively
When writing as an advocate, the goal is to convince the reader to see the case your way. This is the art of persuasion. You will want to persuade the court or agency that your argument produces the only lawful and equitable result. To get there, you will need to show your reader why your arguments are more sound than your opponent’s. Courts and government agencies read a lot of briefs, however. They approach your case with a healthy skepticism. They will not see it your way simply because you tell them that they must. Your opponent is telling them just the opposite. They will not be convinced if you simply repeat your points over and over again. They will definitely not be convinced by your use of colorful adjectives to attack your opponent’s position or by your yelling at them in print (more on this in the next section).
Persuasive writing has three components. The first is telling a coherent and compelling story. You must present the facts of your case in an orderly fashion that communicates a convincing narrative. It might be that a chronological account is the best means of doing so, but not necessarily. If your chronology is long and generally boring, focus instead on the most important events in your case in the order of their importance. You can add a sense of their timing later. If you are writing about an accident where you allege that both the other driver and the hospital were negligent, do not spend a lot of time introducing the characters or events preceding the accident. Start with the accident:
On August 14, 2022, Plaintiff Deborah Driver had the green light at the intersection of Route 60 and Jasper Road. Tom Trucker, distracted by a text message he received from his estranged wife, ran the red light and hit Driver broadside at a high rate of speed, flipping her SUV over three times until it landed off the road in a ravine. Driver was critically injured and was taken to Hometown Hospital. There, instead of airlifting Driver to University Medical Center, doctors who were not board-certified in neurosurgery treated her incompetently, leaving her brain-damaged and paraplegic.
You need your opening paragraph to pack a punch, not be tangled up in irrelevant details and defined terms. You can get to those later if you must. Focus instead on telling a story that will make an impression on your reader. If you are able to tell your story in such a way that your reader becomes emotionally aligned with your side before even reading your legal argument, you are writing persuasively.
You’re probably thinking, “Well, that’s not possible in every piece of legal writing. Poorly answered interrogatories do not carry the same emotional impact as a terrible vehicular accident.” Perhaps not, but that does not mean you cannot draw your reader in and make your subject interesting. Instead of the usual plodding narrative found in briefs addressing discovery disputes, try something like this:
Plaintiff alleges in this case that her being fired from a job she held for only four months was so traumatic that she has been unable to bring herself to seek a new job and that she might never be able to work again. Yet, when Defendant sent Plaintiff interrogatories seeking details regarding her alleged injuries and any treatment she received, she initially responded only with objections that Defendant was trying to invade her privacy. When pressed for substantive responses, Plaintiff answered that she does not remember the names of any of the doctors she saw or where they are located. She failed completely to answer questions regarding the number of treatment sessions she had, what diagnoses she received, and whether she was prescribed and took any medications. Defendant simply cannot defend itself against Plaintiff’s serious allegations in this case without this important information.
A judge reading this paragraph will likely conclude that the plaintiff and her counsel are playing games, and that a forceful response from the court is in order before ever reaching your legal authorities.
You must be careful not to exaggerate your facts to try to make them seem more exciting than they really are. Doing so will ruin your credibility with your reader. You do not need to exaggerate, however. Communicate the importance of your issue in your presentation of your facts. Include all of the factual details necessary to support the arguments you will make, but tell your story in a compelling way.
The second component of persuasive legal writing involves the way you present the legal authorities supporting your position. On occasion, there might be binding precedent that compels only one result. If it were that clear, you probably would not be before the court, but in the event you are, simply tell the court that the U.S. Supreme Court’s Gunderson case is on point and requires a ruling in your favor. There is no need for the underlining, all-caps, bold, and italics that accompany many lawyers’ informing the court that there is a case on point. Screeching to the judge that “As the Supreme Court in Gunderson made abundantly clear, this Court MUST grant Defendant’s motion!” is not going to be any more convincing to the court than a simple statement that Gunderson is on point. It will only make you appear to be unhinged.
In most of your cases, though, there will not be controlling authority on point, so you will have to construct an argument using the existing authorities that will convince the court that the result you seek fits better with existing law than the result your opponent seeks. This is legal analysis. The best way to do this is to make the authorities in your favor come alive. If there is a statute or regulation that strongly supports the result you seek, don’t just paraphrase it, quote it verbatim. If you can, avoid block quoting it. If its length requires a block quote, then block quote it, but quote only the language that is relevant to your issue. Again, go easy on the italics, bold, etc. If there are some words that are particularly important, italicize them (and indicate that you have added the emphasis), but you don’t need to italicize, bold, and underline them.
When discussing cases that support your position, make the cases come alive as well. When a lawyer makes a statement of law or quotes some language from a case and then merely cites the case and moves on without providing any further context, opportunities for persuasion are lost. Instead, discuss the key facts of the case and how they are similar to the facts in your case. Then discuss how the court reached the result it did, and how the result you seek is similar to the result in the case you cite. Quote some of the court’s language in the case you cite to illustrate the court’s reasoning. Then do the same thing with respect to the case that next most supports your position, and so on. You probably don’t need to discuss more than three cases in this fashion to support a particular point in your argument.
Avoid long string citations. They are not persuasive, they just take up space, and they might not even say what you are representing that they say. If there are multiple cases supporting a point you are making and you do not have room for a full discussion of each, cite two of them after your presentation of the principal case and include a parenthetical for each case explaining why it supports your position.
You must also distinguish case authority that is not in support of your position. Some will tell you that if you are the moving party, let your opponent discuss the opposing authority and you can address it in your reply brief. It’s better to play offense than to play defense, however. If you mention unfavorable authority in your opening brief and distinguish it from your case, you will bolster your credibility with the court, and you will force your opponent to play defense. You can usually distinguish unfavorable authority by showing how different the facts are in that case compared to your case. Also, look at whether courts in subsequent cases have distinguished an unfavorable case or chosen not to follow it. Even if a bad case has not been overruled, it might have fallen out of favor.
The third component of persuasive writing involves convincing the decision-maker that the result you seek is the right result. Unless there is controlling authority directly on point, a court will not side with you simply because you have legal authorities that support your position. The court will want to reach a just result, not simply reward the smartest lawyer with the best research skills. You must further convince the court that the result you seek is the most equitable result under the circumstances. There are a number of themes that you might invoke. With respect to discovery, it might be: “Plaintiff brings serious charges in this case, and due process requires that Defendant gain access to Plaintiff’s medical records to defend itself.” If you are opposing a motion to dismiss, it might be: “Plaintiff should have the opportunity to conduct some discovery regarding her claims before the court takes the drastic step of dismissing her case.” If there is a preliminary injunction at stake, the argument might be: “This court must order Defendant to cease contacting Plaintiff’s customers using Plaintiff’s trade secrets, as her continuing to do so is destroying Plaintiff’s business.” If you are on the other side of that case, your theme might be: “This court should deny the injunction because Plaintiff is trying to prevent Defendant from earning an honest living in the only profession she knows.” Explain to the court why your client must prevail, apart from your argument that the legal authorities require it. In most cases, if you can convince the court that you should win as a matter of the equities, the court will find a rationale in the law to rule in your favor.
Shockingly, You Shouldn’t Write Like That!
Judges hate it when attorneys launch ad hominem attacks on each other in the courtroom. They equally dislike it when attorneys do so in their briefs. There is an unfortunate tendency among some lawyers toward assuming that the lawyers on the other side of the case are bad people simply because they represent the opposing party in a lawsuit. There is an even greater tendency to jump to the conclusion that opposing counsel are dishonest or unethical merely because they do not agree with you about the merits of the litigation or the propriety of certain attempts at discovery. You must resist this state of mind when writing as an advocate.
Avoid making bombastic statements such as “Plaintiff’s discovery requests are shockingly overbroad.” They might well be overbroad, but overbroad discovery requests are hardly “shocking.” Likewise, avoid using such terms as “a joke,” “laughable,” or “comical” to describe your opponent’s position. Avoid characterizing your opponent’s conduct or arguments with over-the-top words such as “abominable,” “appalling,” “despicable,” “disgraceful,” “dishonest,” “deceitful,” or “shameful.” Use of such language almost always raises the temperature of a case, and it runs the risk of alienating the court.
Also, avoid words such as “tellingly” or “suspiciously” where an opponent has failed to address a point that you think should have been addressed: “Tellingly, Plaintiff fails to address the Frostingham case.” It suggests, without proof, that your opponents were deliberately attempting to hide something from the court, or that they were afraid to address the case. Maybe they never found the Frostingham case. By all means, point out to the court that your opponents ignored Frostingham, but avoid suggesting an ulterior motive.
You need not be so polite in your critique of your opponent’s position that your writing is bland and your advocacy is ineffective, however. You can do better than merely stating, “Plaintiff’s argument lacks merit.” You may attack your opponent’s position and arguments with words such as “groundless,” “frivolous,” “devoid of merit,” “dubious,” “peculiar,” “wrong,” or even “absurd” to make your point forcefully. For example, you can say, “Plaintiff makes the absurd argument that a public entity is not entitled to invoke the attorney-client privilege.” That’s different, though, from suggesting that your opposing counsel is a liar, a fraud, or a terrible human being.
Write Like a Regular Person
Can you imagine going to a restaurant with friends or family and announcing to your dining companions: “If the server delivers the meal I requested, I will have no alternative but to consume it”? Or telling the neighborhood kid who walks your dog: “Please cease and desist forthwith from any further walking of my canine”? Or calling to make an appointment with your doctor and when asked what is wrong, stating: “I have been rendered sick, sore, lame, and disabled”? People don’t talk like that, and you should not write like that, either.
I am always amused when a demand letter reads: “If your client does not pay my client the sum of $100,000 by April 1, 2025, we will be forced to file a lawsuit against your client without further notice.” The lawyers never say who will “force” them to file a lawsuit. It seems their kidnappers already are quite lenient in allowing them to write such letters while in captivity, and so they probably won’t force the lawyers to file lawsuits against their will.
Similarly, it is amusing when opposing counsel who does not like our discovery responses writes: “If you do not supplement your discovery responses by Friday, May 2, 2025, we will have no other option but to file a motion to compel further discovery.” This is not a true statement, however. Opposing counsel has plenty of options if we do not send them discovery responses more to their liking by their unilaterally imposed deadline. Those options include picking up the phone and calling me to try to work out a compromise, or simply leaving it alone and scheduling a Rule 30(b)(6) deposition to try to obtain the information another way.
Don’t use this silly language when you communicate an ultimatum to your opposing counsel. Do not tell them you will take them to court if you do not mean it. If you mean it, simply tell them that if they do not provide complete responses to your discovery requests by a given date, you will file a motion to compel discovery. If they fail to do so, file your motion, but don’t suggest that you are being controlled by unseen forces.
Likewise, when you write, avoid using archaic words such as “hereinabove,” “hereinbelow,” “hereinbefore,” “hereinafter,” “herewith,” “therewith,” “whereupon,” “thereupon,” etc. If you use these words, you might as well start every piece of your legal writing with “WITNESSETH . . .” Avoid using the word “said,” as in “said agreement,” “said injury,” or “said accident.” Avoid referring to the “underlying action.” No one truly knows what the action is lying under.
Also, avoid doubling- or tripling-up with words that are synonyms, such as “cease and desist,” “each and every,” “part and parcel,” “terms and conditions,” “null and void,” “undertake and agree,” “all and sundry,” “due and payable,” “goods and chattels,” “possession, custody, or control,” and “right, title, and interest.” “Any and all” are not synonyms, but they regularly appear together as well. Why would you settle for just “any” when you can have “all,” though? So just ask for “all.” Use of these words was common in legal writing generations ago, and it still sneaks into our legal writing today. Their redundancy is unnecessary, however. If you reduce the number of words you use to describe the same thing, you’ll have an easier time meeting the page limit for your brief.
Similarly, avoid the unnecessary use of Latin terms. No one outside of the Vatican speaks Latin, so unless you are writing to the College of Cardinals, use Latin terms sparingly. “Ad hoc,” “alter ego,” “de novo,” “ex parte,” “in pro per,” and “pro se” are probably unavoidable. “A fortiori,” “ab initio,” “ad infinitum,” “arguendo,” “de facto,” “in absentia,” “ipse dixit,” “ipso facto,” “modus operandi,” “nunc pro tunc,” “persona non grata,” “post hoc, ergo propter hoc,” “sui generis,” and “vel non” will only make you sound pretentious, if not overly proud that you took Latin in high school and aced it.
Finally, write in the active voice, as opposed to the passive, wherever possible. You would not say in real life, “A cheeseburger is wanted by me.” You would say, “I want a cheeseburger.” You would not say, “A trip to New York will be taken by me.” Instead, you would say, “I will take a trip to New York.” As ridiculous as the passive voice sounds when it is spoken, it is still used way too much in legal writing. “The statute was violated by the defendant.” “A serious injury was suffered by the plaintiff.” “Polluted water was leaked by the factory into the river.” On rare occasions, you will want to use the passive voice for emphasis. For example, “The plaintiff was fired for stealing” is more emphatic about the reason for the plaintiff’s termination than “The employer fired the plaintiff for stealing.” “The truck axle was removed for examination after the accident” is more emphatic regarding the suspected cause of the accident than “The company removed the truck axle for examination after the accident.” If you have a good reason to use the passive voice in a particular sentence, use it. If you do not, try rewriting the sentence in the active voice.
When you have finished your first cut of a legal document, go back over it and look for examples of archaic language, passive voice, pointless repetition, and useless legalese. Ask yourself, “Do people talk like this today?” If the answer is no, go back and update your language for the 21st century.
Write Economically
Always look for ways to express yourself using fewer words. You might have a 15-page limit for a brief, but if you can say it in 10 or 12 pages, your reader won’t complain. How do you accomplish this?
First, eliminate unnecessary repetition. Too often, drafts of briefs spend three paragraphs of the introduction telling the reader what happened in the case, and then spend two more pages in the statement of facts recounting the same thing. You really only need to say it once.
Second, look for run-on sentences and break them up. If a sentence runs for more than three or four lines, it’s probably too long. Sentences that go on and on are difficult to follow. Broken into smaller pieces, their meaning is much clearer, and you can usually eliminate a few words.
Third, focus only on the facts and law that are germane to your memo or brief. Unless you are writing or responding to a motion for summary judgment, not all of the facts of a case are relevant or need to be addressed. Limit your facts to those that bear on the issue at hand. Likewise, limit your discussion of the law to that which is most relevant to resolving the legal question or questions presented. Once you have answered the question, stop. Unless your assignment is specifically to leave no stone unturned, avoid spending time on throwaway arguments or issues. If the issue is whether an executive breached his employment agreement by working on a competing startup in his spare time, answer that question. Don’t go off on a tangent speculating that the executive also might not have properly accounted for some sick days he took.
Fourth, tighten up your presentation by eliminating unnecessary words. Instead of saying “the instant case,” simply say “this case.” Switch “after” for “subsequent to.” Instead of saying “the defendant proceeded to download the documents,” say “the defendant downloaded the documents.” Instead of “the agency made the determination,” say “the agency determined,” or better yet, “the agency decided.” Instead of “the argument made by opposing counsel,” say “opposing counsel’s argument.” Instead of “the company was supportive of,” say “the company supported.” You get the picture. By eliminating excess words, your writing will be cleaner and easier for your reader to absorb. Your reader will be grateful, and you will start to build a reputation in your firm as an excellent writer.
Fifth, eliminate words such as “clearly,” “obviously,” and “undoubtedly.” You don’t add anything by saying “clearly, the plaintiff is wrong” instead of simply “the plaintiff is wrong.” If, in fact, it’s clear that the plaintiff is wrong, you weaken your argument by adding the extra word just to remind the reader. If it’s not really clear, you damage your credibility with the reader by using the word to suggest that it is.
Proofread!
Proofreading your documents is essential. Submitting sloppy written work will derail your career as a law firm associate. You can use various online tools and AI applications to check your spelling, grammar, and syntax, but do not rely on those tools exclusively. You must still read and reread your work carefully to catch errors missed by your technology, or errors created by your spell-checking program. Also, use your proofreading to ensure that your document reads smoothly, that your points are presented coherently and in order, and that transitions between paragraphs and sections of your document flow. Finally, proofread for tone. Is your tone appropriate? Especially if you wrote a motion or memo immediately following a particularly exasperating exchange with opposing counsel, your writing might contain some sharp edges that would be better sanded down. You can attack your opposing counsel’s position or arguments without attacking your opposing counsel personally.
Don’t just proofread a document from the beginning. Start proofreading halfway or two-thirds of the way through the document, and then go back to the beginning. You are more likely to find errors using that method than if you always proofread from the beginning of a document.
You should let your finished work sit overnight, if possible, so you can review it one last time with a fresh eye the next day. Not until you are certain it is correct, coherent, and complete should you submit it.
Conclude with a Conclusion
You should always close your brief, memo, or letter with a short conclusion. If you are short on space, at least say, “The Court should grant Defendant’s motion for the reasons set forth above.” If you have more room, add a couple of sentences summarizing your analysis or argument, but do not repeat everything that you already said. Just bring it back into final focus.
Master these techniques of legal writing, and you will be well on your way to early success as a counselor and advocate.
