Better Legal Writing

Katherine Mikkelson
For most legal writing, you will know your audience. Whether it is your senior manager, a partner, or the court, write in a professional tone.

For most legal writing, you will know your audience. Whether it is your senior manager, a partner, or the court, write in a professional tone.

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Legal writing is a skill. And as with any skill, you must practice to improve. Your goal is to create an easy-to-comprehend document with information that will persuade the reader that your position is the correct one. A well-written legal document is one of the most important tools in a lawyer’s arsenal.

First draft. When writing a first draft, your goal is to establish your main points, ideas, and reasoning in black and white. Revising and editing is the essential stage—that is when you craft a cohesive, competent, and easily understood document.

Audience. For most legal writing, you will know your audience. Whether it is your senior manager, a partner, or the court, write in a professional tone. The breezier you are, the less seriously you will be taken.

Structure. Many writers find it helpful to create an outline before drafting. Even a short outline like the following will help guide you to where you want to go and the points that you want to make: (1) issue; (2) answer; (3) facts; (4) discussion; and (5) conclusion.

For persuasive writing, consider the order of your arguments. Ask yourself what will make the biggest impact. Most of the time, use your strongest argument first. Other times, you may want to lead with the most contentious issue, getting that out of the way for less prickly topics later. Sometimes a substantive or jurisdictional threshold question may affect the rest of your argument, so start with that.

Always keep your reader in mind. To ease the reader into your world, consider writing broadly and then gradually narrowing down your issues. Alternatively, think of starting with simple concepts and then advancing to the more complex.

Flow. The flow of a document helps guide the reader, so provide as many road signs as possible, including transitions, topic sentences, and headings/subheadings. Use connecting or transitioning words liberally between both paragraphs and sentences.

Paragraphs are your basic unit of composition. Don’t worry about their length too much (although you should avoid very long paragraphs that may make it hard for your reader to maintain her attention). Instead, focus on whether each paragraph represents a single idea. Generally, the first few paragraphs will give you the best return on investment, so they are the most valuable in terms of expressing your point.

Each paragraph should start with a topic sentence. A topic sentence will tell the reader what the rest of the paragraph is about. Here is an example: Like the worker in Jackson v. Charter Industries, Alice Corcoran was not an employee because Cook County did not control the performance of her work.

Here, the topic sentence illustrates the author’s conclusion about the application of the rule to the facts of the client’s case. The rest of the paragraph would describe the reasons why Cook County was not in control of her work.

Finally, in any document longer than a few pages, use headings and/or subheadings. Think of headings and subheadings as signs on a highway, giving readers directions to guide them on the proper path to take in comprehending the subject matter of each section.

Succinctness. Most advice about writing will urge you to be concise. In the immortal wisdom of Strunk and White, “[v]igorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences” (William Strunk Jr. and E. B. White, The Elements of Style, 4th ed., 2000). While editing and revising, you’ll see a vast improvement after deleting unnecessary words and phrases. This decluttering process is essential. Two particular ways in which to make a document more succinct include eliminating nominalizations and avoiding negative constructions.

Eliminate nominalizations. A nominalization is a phrase that uses an abstract noun to do most of the work. Most of these vague nouns contain a hidden verb, and a verb is always the better choice. Here is an example of a sentence using a nominalization: This memo will give an analysis of the dispute between the county and the vendor (15 words). That sentence can be improved by replacing the nominalization with a verb: This memo analyzes the dispute between the county and the vendor (11 words).

Avoid negative constructions. Positive constructions are usually shorter than negative ones. Some examples: not different = similar; not allow = prevent; not many = few; not include = omit.

Additionally, negative constructions are confusing and difficult to understand. Consider the following sentence: It’s not that our clients are ungrateful. But without additional funds and unless there are no fewer than five people to work on the project, it would be impossible to meet the deadline. Here is a better way to reword that sentence: Our clients are grateful. But they need additional funds and at least five people to meet the deadline.

Legalese. At its best, legalese is verbose; at its worst, it is confusing and patronizing. Forget about trying to sound like those cases you read in law school. Remember the premise we opened with: Your goal is to create an easily understood document.

Try to avoid wordy idioms. Here are some examples of less wordy alternatives: despite the fact that = although; for the period of = for; until such time as = until.

Also avoid redundant legalisms, where one or two words can do the work of three or four: full and complete becomes full; null and void becomes null; and true and correct becomes true.

If possible, don’t use Latin phrases: a priori = from earlier; bona fide = in good faith; de facto = in fact; locus = place; sub modo = subject to modification.

Avoid the use of fancy words and foreign phrases. Briefs and motions are chock-full of highfalutin words even though easier words are a better choice. You may think that fancy words will make you sound important, but simpler words will improve reader comprehension. Do you want the reader to have to read a sentence twice to understand it? Instead of behavioral dynamics, use behavior. Instead of predicated and initiated, use decided. Instead of Sturm und Drang, use turmoil. Instead of sub rosa, use performed in secret.

Passive voice. Passive voice can trip up new writers. Passive voice occurs when the object of an action is turned into the subject of the sentence: The county offices were damaged by fire. A better way to write this sentence would be in active voice: Fire damaged the county offices.

To identify passive voice, ask yourself who or what is doing the action. Is the person or thing doing the action (active voice) or having the action done to it (passive voice)? In the first example sentence above, county offices is in the subject position even though it is the object of the action (damage). Because the fire is doing the action, it should be at the front of the sentence as the subject, as it is in the second example sentence.

To spot passive voice, look for a form of the verb to be (e.g., am, are, is, was, were, have been, had been, will be, will have been, being) plus the past participle (a verb that typically ends in ed). In the above example, the phrase were damaged indicates passive voice.

Strunk and White urge writers to use active voice because it is “usually more direct and vigorous than the passive.” It is also usually more concise.

Revisions. Revising is the most crucial phase of writing. Strunk and White urge writers to use the cut-and-paste function of a word processor and to “not be afraid to experiment with what you have written.” Make a new version, dating it or using some kind of naming convention (e.g., Brief edit 2) so you can keep track of your various versions. Edit line by line and cut unnecessary words. If you don’t like your edits after a day or two, you can always go back to a previous version.

Read your work out loud at least once to gauge the rhythm. Your ear might be more attuned than your eye to clunky construction. Also think about sentence endings. Writers sometimes think that the most prominent position in a sentence is the beginning. Actually, it’s the end of a sentence that usually has the most impact.

If possible, allow edits and revisions to percolate in your brain for a day or so—that is, “sleep on it.” Then, give your piece a comprehensive final proofreading. Double-check spelling. Revise punctuation. Review grammar. Don’t rely on spell-check or your word processor’s grammar feature. Ask a colleague to proofread one last time before submitting, especially if you have revised many times and are sick to death of looking at your work.

This article is an abridged and edited version of one that originally appeared on page 8 of The Public Lawyer, Summer 2018 (26:2). The Public Lawyer is a publication of the ABA Government and Public Sector Lawyers Division.

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Katherine Mikkelson is the associate director of the ABA Government and Public Sector Lawyers Division. She is a former federal agency attorney.