Imagine my astonishment when my first mentor handed back my maiden trial brief with the admonition: “You need to rewrite this. Just use short sentences. And keep it under two pages.” Those three sentences taught me all I needed to know about legal writing:
- There is no good writing, only good rewriting. A lot of rewriting.
- Put each concept in its own sentence. Use each sentence as a step toward your ultimate argument. Then, state the final argument in one summary sentence.
- Be succinct, which takes a lot of rewriting. Mark Twain once said, “I didn’t have time to write a short letter, so I wrote you a long one.”
Be Aware of Your Audience
Direct, clear advocacy is necessary when considering your audience, such as a judge. This is not to say that judges cannot understand complex legal issues. However, judges have limited time, energy, and attention spans. Judges are still humans like us. They hear hundreds of cases every year covering a vast array of issues, so they cannot possibly understand your case as well as you. You know the facts and the law and the arguments that meld the two together. SPELL IT OUT. If a judge needs to go back to reread a sentence, then you have lost the judge’s valuable time and energy. Short sentences that build to an ultimate argument will “walk” the judge to your (winning) position.
Consider Integrating Bullet Points for Clarity
My friend, a trial judge, said that when she was on the bench, all she wanted to know was: What do you want, and how can I give it to you? This sounds easy enough. But putting it in writing, clearly and succinctly, is not so easy.
Dr. Seuss states it well: “Sometimes the questions are complicated, and the answers are simple.” I have found that in the TikTok years, when attention spans are particularly short, bullet points are an excellent way to state the law, define the law, and apply the law to the facts of your case. Writing in a way that makes the relief you seek simple and easy for the judge to follow is key. For instance, if you must prove four elements to establish your case, write your brief as follows:
- Element of the law that needs to be proved
- Case law defining or explaining the element
- Facts that conform or don’t conform with the case law.
There is no need for transitional words or time spent searching through paragraphs to find the key points of your argument. But this type of writing should be limited to lower court briefs. Appellate briefs should be more formal; however, I am not above a good bullet point even in my Supreme Court briefs, as long as it helps the Court determine how to give me what I want.
Formal Writing Can Still Be Straightforward
All written advocacy must show respect for the tribunal. Accordingly, there is a formality to written advocacy even while being straightforward. An axiom among many new lawyers suggests that legal writing should include archaic transitional words to create formality—when they just need to be clear and concise. Winston Churchill once said, “Broadly speaking, the short words are the best, and the old words best of all.”
In the end, the goal should be clarity. “Notwithstanding” this article, I don’t use contractions when writing briefs. I understand, however, that contractions are a matter of personal style. I like starting a sentence with “and” or “but” if it assists in making a point more definitive. I stay away from folksy language, but if the perfect phrase involves a horse, water, and the inability to make it drink, then by all means, use it.
Practice Helps Improve Writing Skills
The beauty of written advocacy is that you control the medium. You decide the approach, the flaws of the case, and how to deliver the perfect words perfectly. No one is interrupting you, asking questions, or deflecting the proper focus. Words on the page can be just as passionate, inspiring, and powerful as the words spoken. The use of punctuation directs the reader to STOP. And think about what was just written. Or it can just keep moving on to the next point without allowing any emphasis on your weaker points. The trick, again, is to take the time to write and rewrite. With that being said, it’s always important to remember:
If you have an important point to make, don’t try to be subtle or clever. Use a pile driver. Hit the point once. Then come back and hit it again. Then hit it a third time –a tremendous whack.