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II. Different Types of Legal Writing (cont.)

D. Taming Legalese

The trap of using legalese comes not just from using certain words, but from how the writer arranges the words in a legal document, whether it be a letter, pleading or brief. Here are some tips to keep in mind when writing.

• The beginning of a sentence is a place of special emphasis. Don't waste it with useless information.
  
  
• The goal is short simple sentences with active verbs that convey crucial action in three lines or less.
  
  
• Be careful not to overstate your position. Do not volunteer to prove more than you need to prove.
  
  
• Avoid insulting your opponent or the court.
  Eschew phrases like:
  • Nobody could conscientiously contend that . . . .
  • Defendant's argument is ludicrous.
  • Here appellant abandons the strategy of distorting the record in favor of lying about it.⁽³⁾



• There are an infinite number of ways to get your point across in a far more subtle manner. Understatement can by a writer's ally.
  
  
• Avoid snide or patronizing language.
  • The law is an ass.
  • There are some facts of which you do not seem to be aware.
  
  
  
• Prefer 20th century English unless ceremonial register is expected.



• Avoid pomposity.
  
  
• Omit excess words. As Professor Strunk said, "Make each word tell."

Meaning words are words that convey a specific idea. Meaning words are nouns, verbs, adjectives, adverbs, and sometimes pronouns.

Function words indicate the relationships among meaning words. Prepositions, articles, conjunctions, helping verbs, and other such words are ordinarily function words.

The distinction is not always clear, but the best way to identify meaning words is to imagine the stereotyped caveman. The caveman speaks only in content words:

Although caveman syntax is to be avoided, you should also avoid a high ratio of function words in your writing. You will not make any points with the Court when your Brief is peppered with:

The function word "obviously" has no real function in that sentence. If the Plaintiff is a fool, the Court will be able to figure it out and the statement need not be stated. If the Plaintiff is not a fool, guess who looks like one now?

Lawyers hesitate to write simple, declarative sentences.⁽⁴⁾

Lawyers want to hedge, in case they've made a mistake. This is one of the classic symptoms of not being quite sure what you're talking about. And it shows.

Prefer the literal to the figurative.

In a related note, the following sentence is physically impossible, just plain wrong, and may instill the reader with a distrust of your perception or intelligence:

It would far more appropriate to say:

Prefer the concrete to the abstract.

Prefer the positive to the negative. The "not un-" construction should be used sparingly. It is not unannoying.

Prefer the specific to the general.

Put your writing in context.

Use literary devices such as rhyme, alliteration, puns, or poetic language very sparingly. That doesn't mean never use such devices.

The perfect quotation sometimes can convey an idea better than you will be able.

Certainly the passive is appropriate in moderation. Those who suggest the passive should never be used are extremists.

The passive may be used where the identity of the subject is unimportant, understood, or unemphasized. An occasional passive construction gives variety to sentence structure.

However, if you endeavor to apply the active voice to your legal writing as much as possible, your documents will convey a more forceful message to the reader.

Make sure your point of view is consistent.

Don't change the point of view in mid-sentence:

Make sure your register is consistent.

You should use formal register unless there is a good reason. Good reasons include:

Convey one idea per sentence. While short sentences are preferred, sometimes legal ideas are too complex for short sentences.

Vary sentence length to avoid monotony.

Foreign in law often refers to another state. In standard English foreign is something from another country.

Therefore means that a conclusion follows what has come before. Therefor is archaic or ceremonial English for "for it."

Wherefore is archaic for "why."

When Juliet says, "Wherefore art thou Romeo?" she's saying "Why are you Romeo?" -- not "Where are you, Romeo?"

E. Facts and Issues

One of the most effective ways to produce bad writing is to fail to understand your subject. So to avoid bad writing, you must first know what you are talking about, and what you want to say about your subject.

The first stage is to garner your facts. Do your research. Find out what you need to know, and what you have to do to know it. Sometimes research is appropriate. Sometimes investigation is needed. Sometimes you must deal with uncertainties.

Start by organizing your facts chronologically. However, if certain series of facts are unrelated until later, keep related facts together.

Remember you have to admit adverse facts or the other side will remind the court. Put your best foot forward, but admit unfortunate facts against you, and deal with them. The worst place to have to discuss unfavorable facts is in a reply brief.

Once you have your facts under control, you must organize your facts. Outlines are common. Most word processors make outlining easy. The Bananaberry problem can be outlined as follows:

This is just one example of an outline.

Even the best outline will be adjusted as you think through your problem. Sometimes you will see that entries under one topic should be moved to another. The outline should never be considered complete.

Never sacrifice clarity of your writing for the sake of sticking to your outline.

The outline is a tool, not a straight jacket.

"Brief" is an "antagonym." It means "short" and "a document filed by a lawyer in court." Briefs are usually not brief. Organization is essential to writing a "brief brief" -- which is not necessarily an oxymoron.

You must organize by topic. You must use judgment to impose higher level structure in your legal writing. Topics often have headings and subheadings.

A good rule is to have a heading or subheading for at least every five pages of text, according to Maggie. I think every three pages is better. If you have five solid pages of text, your topic may be too large to put under one heading.

Structure your document. Structuring a document calls for judgment.

Tell the court what the case is about. You must remember to give enough background. You cannot assume that the judge knows the facts.

Refer to evidence that supports your version of the facts.

A simple structure for short briefs is the "PS" or "Problem, Solution" structure.

A structure you can impose in longer briefs is the "IRAC" structure. That is: "Issue, Rule, Application, Conclusion."

The issue is the question. The rule is the applicable rule of law. Application requires you to apply the law to the facts. Then you recommend a solution in the conclusion.

Put your best foot forward. Pick the argument you believe the court is most likely to accept and start with that argument. The court will expect you to start off with your best argument. If a court rejects your first two arguments, you have very little chance on your third.

If your arguments are equally strong, organize your topics by levels of difficulty.

The procedural point stands or falls regardless of the facts, and sometimes regardless of the merits of the claim.

The purely legal point may have merits, even though you construe the facts in the light most favorable to your opponent.

The factual point will involve the type of complicated facts that are found in real cases.

In Bananaberry v. Robinson, assume Mr. Robinson files a Motion for Summary Judgment in Mr. Bananaberry's claim against him. Robinson alleges that the summons and complaint was delivered by the process server to a janitorial robot at his home. He further alleges that Mr. Bananaberry's Complaint fails to state a cause of action because Arkansas does not recognize the tort of computer programmer malpractice. Finally, Robinson submits an affidavit from six other programmers that they have examined Mr. Robinson's work and found nothing wrong with it.

The logical order of Mr. Robinson's motion is as follows:

1. Inadequate service of process.

2. The complaint fails to state a cause of action.

3. The complaint is meritless on its facts.⁽⁵⁾

First topic

The first topic does not involve the substantive law or the facts.

It is the least difficult. The issue there is: Does service on a household robot comply with the requirements of Rule 4 (d) of the Arkansas Rules of Civil Procedure?

If service on a robot does not comply with this Rule of Civil Procedure, it does not matter whether Arkansas recognizes the theory of programmer malpractice. It also does not matter whether Mr. Robinson actually committed malpractice.

All that matters is whether a janitorial robot is a "person" "residing" at his house.

There may be a question of the age of the robot.

As far as level of difficulty is concerned, this is the simplest argument, mainly because the issues surrounding proper service are well defined in Arkansas law.

Second topic

The second topic involves the substantive law, but it really does not involve the facts.

Even taking the facts in the light most favorable to Mr. Bananaberry, if Arkansas does not recognize the tort of programmer malpractice, that claim must be dismissed. This is the next level of difficulty. It does not matter whether Mr. Robinson actually committed malpractice.

Third topic

The most difficult and complex topic is the third one, that Arkansas does not recognize programmer malpractice.

That requires the analysis of at least eight factual affidavits filed by Mr. Robinson. Mr. Bananaberry will likely file eight factual affidavits in response.

Therefore, the logical order of this argument is:

1. Procedural

2. Legal

3. Factual.

The order strongest to weakest is almost always correct, but even here use judgment.

The order "procedural, legal, factual" is not always the correct one. Sometimes the factual argument can be relatively simple. A procedural argument can be highly complex. The order should proceed from the simplest argument to the most complex.

If you convince the court with your simplest argument, the court does not need to bother itself with the more complex arguments.

Do not forget to end by telling the court what you want the court to do.

It is amazing how often lawyers write brilliant arguments and then fail to tell the court what remedy they seek.

Do you want the Court to deny the Defendant's Motion? Do you want the Court to grant attorneys fees? Do you want the Court reverse the jury verdict and enter a judgment in favor of your client?