Whether or not you are a master writer, effective legal writing is an essential skill for lawyers. Lawyers cannot be successful advocates if they cannot form the strongest argument. Becoming a resilient writer—who does not fear the red ink—is achievable with practice over time.
Purpose and Audience
Understand your purpose. What outcome are you trying to accomplish, and for whom? Structure, tone, and voice change based on the document you are drafting. Judges, another attorney, or a client all have expectations in your writing. Familiarize yourself with the courts or attorneys’ tone, style, pet peeves, etc. While a judge will almost always be a member of your audience, a judge will rarely be the only member.
Legal writing requires attention to detail while incorporating legal precedent. The first step in any research process is ensuring that you understand the issue. Understanding the question can be as difficult as answering it. Do not be afraid to ask questions if you need help. Do not commit the fatal error of excluding relevant cases because it does not support the conclusion you want to reach. Research should present an accurate assessment of the relevant law with an honest prediction of how the client’s facts are likely to come out under that law.
State your point directly and clearly using active voice. Avoid double negatives, and depending on your audience, do not use two spaces after the period unless required. Be consistent. If the document is longer than a few pages, use headings/subheadings as signposts. Just as the legal research mentioned above is a process, legal writing with clarity is also a process.
When submitting something to a partner, supervising attorney, or the court, you are making an impression. It is imperative to take proofreading seriously to produce high-quality work and to maintain professionalism. Those not proofreading their work should start immediately. It is also important to remember that under the ABA Model Rules of Professional Conduct and Professional Responsibility, Rule 1.1 states that a lawyer has a duty to be competent in the representation of a client. Not only do lawyers have a duty of competency, but they should also take pride in their work product; thus, proofreading is critical.
Tips and Tricks for Proofreading
This involves just clarity, organization, and flow. How does this written work product feel as a reader?
Be Honest about the Facts
Inaccurate characterization of the facts of your case will get you nowhere. It is best to present the facts in chronological order while candidly disclosing negative facts.
Formatting might not seem exceptionally important; however, it is one of the things that a reader will notice right away. Does this conform with my expectations as a reader as to what this should look like? When filing a document, motion, or memo with the court, there are rules about what it should look like and how long it should be. Make sure you are meeting those expectations. If the very first reaction is, “This ’doesn’t seem right…”, you have already made a wrong first impression on the reader.
Read Out Loud
You will be amazed at how many errors you will find when reading aloud, such as odd word choices that ’didn’t seem that odd when you wrote them. Reading out loud can be a great way to catch many proofreading errors.
Commitment to excellence, acute attention to detail, and perfectionism are characteristics attributed to the best lawyers. It can be challenging to manage all the expectations, particularly as a new associate or attorney tasked with handling different assignments. Manage your expectations of what your work product looks like. Perfectionism can be a good thing, but it can also be detrimental if you let it get out of control. If you find yourself cycling through the perfectionism loop, take a step back and look at the big picture. Recognize when or what triggers perfectionism. Law is a learning profession, and you are never going to be perfect.
The Red Pen
Accepting constructive criticism on the work product is a great challenge. Receiving red ink signifies that someone important took the time to fix your mistakes or offer a more concise way to draft your memorandum or motions. If you are getting feedback from someone, they care about you and want to help you grow. Always ask for feedback to make your work a good reflection of your dedication and time spent drafting that work product. Feedback ’isn’t always the easiest thing to give or receive, especially when you invest hours upon hours to produce the motion or memorandum.
Every young lawyer knows imposter syndrome in legal writing. It feels like you are an incompetent fraud, and it is just a matter of time until someone finds out. Finding your footing in legal practice and developing your voice as a legal writer takes time, patience, and practice. Trust your judgment. Remind yourself you are your harshest critic. Focus on improving your writing every day and continue to read and accept help when needed.
You can hone effective legal writing skills with lots of practice and editing. Consistency is key. Strive for clarity. Do not try to reach perfection, but practice makes perfect. You will make mistakes. Legal writing is not easy. Proofread everything several times. Finally, red ink makes us better, and imposter syndrome affects everyone at some time during their career. These simple tips can vastly improve your legal writing, making you a resilient lawyer.
Resources for Writing
- "How to Write: A Memorandum from a Curmudgeon," Herrmann, Litigation, Fall 1997
- "Thoughts on Legal Writing from the Greatest of Them All: Irving Younger" (Parts I and II), Lebovitz
- "25 Ways to Write Like John Roberts," Guberman
- "If You Can Give Good Directions, You Can Probably Write a Good Brief," Garner, ABA Journal
- Exemplary Legal Writing Awards, The Green Bag
- The Winning Brief, Garner
- The Elements of Legal Style, Garner
- Point Made, Guberman
- Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation, Truss
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