The Ultimate Guide to Good Legal Writing

November 27, 2018 rawpixel-649906-unsplash

Writing well is a skill that transcends profession, but nowhere is it more necessary than in the legal profession, where good writing is essential to the practice of nearly every area of the law. And good writing skills are especially important for young lawyers who are just starting their careers: an American Bar Foundation survey of practicing lawyers found that “[o]ral and written communication skills are deemed to be the very most important skills necessary for beginning lawyers.”

Clear communication (or the lack thereof) can make or break your client’s case, so it’s no surprise that our clients routinely ask us to find candidates with superior legal writing skills. If you need a refresher, or simply want to kick some bad habits, read on for the tidbits, tools, and resources that can help take your legal writing to the next level.

Advice from the Experts

Use the Madman, Architect, Carpenter, Judge process to plan your writing.

In his book Legal Writing in Plain English, Bryan A. Garner (also editor-in-chief of Black’s Law Dictionary) suggests writers use a four-step process to plan their writing:

  1. Think of things you want to say—as many as possible, as quickly as possible (the Madman).

  2. Figure out a sensible order to those thoughts, and outline them (the Architect).

  3. With the outline as your guide, quickly write a draft (the Carpenter).

  4. After setting aside the draft for some time, come back to it and edit it (the Judge).

Write concisely, cutting out unnecessary adjectives and adverbs.

The Writing Center at the University of North Carolina has a great handout on conciseness that can help you eliminate redundancies in your writing. Words that don’t add to the substance of your argument, like “clearly” and “whatsoever”, don’t add anything to the persuasiveness of your writing; the same goes for speaking in the first person, such as “we argue that…

Compound constructions are another common offender that can make your writing unnecessarily lengthy. Columbia Law School’s Writing In Plain English offers some great examples and and suggestions to simplify your phrasing and cut down the wordiness:

Compound constructions use three or four words to say what can easily be said be one or two words. Not only do they waste space, but they make writing seem dry and boring. Lawyers tend to use compound constructions rather than plain English, which is a mistake. Below is a list of common compound constructions and their simple counterparts.

Compound:

Simple:
  • at the point in time
  • by means of
  • by reason of
  • by virtue of
  • for the purpose of
  • for the reason that
  • in accordance with
  • inasmuch as
  • in connection with
  • in favor of
  • in order to
  • in relation to
  • in the event that
  • in the nature of
  • prior to
  • subsequent to
  • with a view to
  • with reference to
  • then
  • by
  • because of
  • by/under
  • to
  • because
  • by/under
  • since
  • with/about/concerning
  • for
  • to
  • about/concerning
  • if
  • like
  • before
  • after
  • to
  • about/concerning

Source: Columbia Law School, Writing in Plain English

Pick your best or most persuasive issues to focus your writing on.

Related to conciseness, your writing should “focus on your best issues. Don’t bury a winning issue in ten other issues, when the other nine are not persuasive. Focus on your best one, pick your best horse, and ride that. And don’t repeat what you’ve said before. Many lawyers think that judges won’t get it unless an argument is repeated over and over. But judges do read briefs very carefully—and they do get it.” Judge Richard Gabriel, Quick Tips for Persuasive Writing

Lead from the top.

“The principle of leading from the top is the single most effective tool for strong writing. If you open your paper by telling your reader what is important, they will look for that information as they read.

And the principle of leading from the top is like a fractal because it applies on large and small scales. Lead a paper with your conclusion. Lead a section with a substantive heading. Lead a paragraph with a summary sentence. Lead an email with a strong subject line. Lead the message itself with a summary sentence. Leading from the top is the key to tight, logical writing.” - Marie Buckley, The Three Essential Rules for Writing

Tell a story. 

“Litigators often forget that judges are human beings just like themselves, and not simply legal computers that process data and facts only. Judges appreciate a good story as much as the next person. The statement of facts section of a legal brief is as important as the legal argument and should not be overlooked. This section of the brief should be used to craft a coherent, relatable narrative that others would find persuasive and understandable.” - Handel Destinvil, Four Tips from Creative Nonfiction for Better Legal Writing

Show, don’t tell.

“When you feel like writing ‘preposterous,’ ‘baseless,’ or ‘flies in the face of reason,’ go ahead and do so. But then delete the language as if you had written it in an angrily drafted email. Now add some reasoned analysis. Show the reader how your opponent is wrong, even if your reader and your opponent are one and the same.” Ross Guberman, Five Habits to Break in 2016

Stop writing in legalese.

The “‘traditional style’ of legal writing is notorious for its unnecessarily complex words, legal jargon, and convoluted sentences that can obscure meaning and create ambiguity. Laypeople have often criticized or ridiculed this style of writing, finding it difficult to read and comprehend. And many jurists have agreed. Judge Learned Hand once stated, “The language of the law must not be foreign to the ears of those who are to obey it.’” Cynthia Adams, The Move Toward Using Plain Legal Language

Always use active voice.

“We're reminded to write in the active voice so often we've become numb to the importance of this rule. Yet no other will point you more quickly in the direction of a clear, forceful style.

How to do it? Simply put, tell the reader who is doing the acting, and put the actor at the front of the sentence. Not the lease was broken but the landlord broke the lease. Not the statute of limitations was blown but the plaintiff's lawyer blew the statute of limitations.” - EvanSchaffer, Improve Your Legal Writing with Five Simple Rules

Read your writing out loud to identify errors.

“Reading aloud is something authors often don’t bother to do. After all, the readers probably aren’t going to. But those who don’t make the effort to read their writing aloud are missing an easy way to find and fix problems.” - Robert Wood, Why Reading Aloud Will Dramatically Improve Your Writing

Edit your paragraphs, then your sentences, then your words.

“The late Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit was a stickler for super-tight prose. Once, Eugene Gelernter (now a New York City litigator, then his student clerk), brought him a draft opinion and the great judge said: ‘Nice draft, Gene. Now go back and read it again. Take out every paragraph you don't need, then every sentence you don't need. Then go back and take out every word you don't need. Then, when you're done with that, go back and start the whole process all over again.’” - Bryan Garner, 10 Tips for Better Legal Writing

Read good legal writing, and read it often.

“The best writers are often those who are avid readers. As you read, pay attention to the tone, structure, and vocabulary.  Pay attention to how various thoughts are phrased and how certain documents are structured. Legal writing takes practice but you can learn a great deal by simply reading documents that others, who have mastered legal writing, have written.” Tonya Pierce, 9 Ways to Improve Your Legal Writing Skills

Credit to @andrewtneel on upsplash

Credit to @andrewtneel on upsplash

Inspiration for Improvement

While there’s no shortage of literature on improving your legal writing, here are few of our favorite long-form articles on the subject. Each lists a set of actionable guidelines to improve the structure of your legal writing, complete with concrete examples for every type of communication (including emails!).

Credit to @nickmorrison on upsplash

Credit to @nickmorrison on upsplash

Essential Resources for Every Legal Writer

  • LawProse Blog
    Bryan Gardner’s LawProse has an abundance of posts and lessons aimed at improving your legal writing; many of the resources he offers are free.

  • Marie Buckley’s Blog
    Marie Buckley’s blog, A Lawyer’s Guide to Writing, is one of the best resources for legal writers on the interwebs. In addition to authoring The Lawyer’s Essential Guide to Writing, Marie’s blog also provides information on how to proofread, conduct research, and develop effective writing plans.

  • Persuasive Litigator
    Persuasive Litigator, written by Dr. Ken Broda-Bahm, goes beyond just legal writing advice and also offers many tactics for improving communication skills that are useful to all lawyers and paralegals—not just litigators.

  • Legal Writing Pro Blog
    Ross Guberman received the Legal Writing Institute’s Golden Pen award in 2016 and his blog is full of good resources and tips for those who want to improve their writing and communication at work.

  • Typography for Lawyers
    A beloved resource of legal writers, Typography for Lawyers helps lawyers create documents that are well-designed and easy to read—an often overlooked element of quality legal writing.

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Still, it’s not enough to read about good writing—now you have to write! The best way to improve your legal writing is to practice, practice, practice. Recognizing and curbing bad writing habits, especially early in your career, can help you stand out as a rock star communicator.

Have a favorite software or tool that helps you in your legal writing? Let us know for a future blog post in the comments below.

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