Writing is the core of legal practice, although not the focus of many students after they complete their 1L legal writing course. As a result, there’s a temptation to “brain dump” what you learned in 1L legal writing. The skills you were taught in your first-year writing class really do prepare you for practicing law. Here are some tips you may have forgotten.
Simply because you no longer write for your 1L writing professor does not mean you can forget the quintessential legal writing structure. Whether it was CREAC or IRAC or CRAC or something else, you likely learned some version of this format in law school. This format’s utility does not disappear when you transition from school to practice.
As a practicing lawyer, you have the flexibility to deviate from the rules. Different writing formulas are all grounded in the same common structure: rule before analysis. Avoid the trap of trying to explain the law while you are applying it to the facts. Injecting a discussion of facts into the discussion of precedent without first establishing that precedent can be confusing.
Best case scenario: this “explanalysis” muddles your argument by forcing your readers to process everything at once. Worst case scenario: it creates the impression of motivated reasoning. Instead, explain the existing law first (the rule and how courts have applied it). Once your readers understand the lay of the land, show them how those rules apply to your particular facts.
Credibility is a nonrenewable resource. Make sure that you accurately cite cases. While you might get away with taking liberties and stretching precedent initially, there will eventually be a reckoning. Look no further than the Ninth Circuit’s epic “bench slap” in Swinomish Indian Tribal Community v. BNSF Ry. Co., 18-35704, 2019 WL 3074050, at *1 (9th Cir. May 22, 2019). Following a hearing where the panel expressed “serious concerns with the integrity” of the brief, the panel issued an order identifying sections of BNSF’s brief and directing counsel to address apparently misleading statements.
Unsurprisingly, BNSF lost its case. Once a court has determined your integrity is suspect, you cannot unring that bell. Make sure your quotes and paraphrases accurately represent the sources you cite.
Another common mistake is failing to recognize the role the weight of authority plays in your argument. Remember that courts are only bound to follow the rules within their jurisdiction. While there’s a role for persuasive authority, all too often, lawyers attempt to use favorable law from another jurisdiction instead of doing the more challenging work of finding and using binding authority. It seems like a simple point, but it is an important one, nonetheless. Courts are bound by binding authority; do not over-rely on persuasion.
As a new attorney, you will quickly learn that bad habits abound. Many citation forms used in practice would make your law review editorial board cringe with embarrassment. Be that as it may, you need every additional signal of credibility you can muster. An easy way to build credibility—even if just a little bit—is to get your citations right. Fair or not, there’s often an implicit assumption that if you know your Bluebook rules, you can also be trusted to figure out other forms of authority.
Grammar is even more critical. While relatively few clients are savvy enough to call you on your understanding of legal authority, significantly more clients understand the distinction between “there” and “their.” Even small typos can have a significant impact on how your work is perceived. Make sure to spend time polishing your work, and pay particular attention to your captions and other above-the-fold parts of your work.
Starting a legal career can often be incredibly stressful. For many of you, your legal writing professor’s critiques were the most detailed you had experienced. In practice, that level of critique will only become more intense. Your work will likely be passed from associates to senior associates to partners, each with a different sense of good writing. Often, the method of critique will be less than charitable. This process will make you a better writer, even if unpleasant.
