Why is Legal Writing So Difficult?

3/6/2015
Hon. Gerald Lebovits
New York State Bar
Association
March 18, 2015
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Justice William Brennan
Why is Legal Writing So Difficult?
• No defense to poor legal writing.
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Why is Legal Writing So Difficult?
• Poor role models.
Chief Judge Benjamin Nathan
Cardozo
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The Goal
• Know your audience.
• Know the purpose of your document.
• Twin pillars: (1) make the court want to rule for
you and (2) make it easy for the court to rule for
you.
• Write for judges, not like judges.
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Why is Legal Writing So Difficult?
• Linguistic roots.
Why is Legal Writing So Difficult?
• Sociological roots.
• As Bismark said: “If you like law or sausages . . .
.”
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Why is Legal Writing So Difficult?
• Language of the law.
Why is Legal Writing So Difficult?
• History.
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Plain English
• Legalisms:
Harder to quit than smoking.
• What word can you remove?
“I enclose herewith a copy of my brief.”
“I enclose herewith a copy of my brief.”
• Archaic expressions.
• Foreign words (Latin, French, etc.).
• Sesquipedality.
• Count syllables.
• Don’t write it if you wouldn’t say it (“prior to,” “said,” “such”).
• But be formal: No clichés, colloquialisms, jargon, or
contractions.
• Write for an eighth grader.
Plain English
• Undefined and excessive abbreviations and
acronyms.
• The Plaintiff demanded ten dollars ($10.00) in
Small Claims Court.
• The Defendant (the “Defendant”), Mr. Smith
(“Mr. Smith”), filed a motion (the “Motion”).
• Excessive uppercasing: “The Lawyer filed a
Summary Judgment Motion in Court.”
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Flesh-Kincaid on WordPerfect
Readability statistics
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Tools.
Grammatik.
Options.
Analysis.
Readability.
Flesh-Kincaid on Word
Readability statistics
• Word 2003-2007:
• Tools; Spelling and Grammar; Options; Show
readability statistics.
• Word 2010:
• Click “Microsoft Office Button.” Then “Word
Options.” Then “Proofing.”
• Select “Check grammar with spelling.”
• Under “When correcting grammar in Word,”
select “Show readability statistics.” Select “OK.”
Hit F7.
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CRARC Method
Conclusion on the issue.
Rule, supported by authority.
Application of law to fact.
Rebuttal and refutation.
Conclusion stating relief you seek.
Controversies
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Controversies: Serial Comma
• Yesterday, the New York City Police Department
arrested five criminals three burglars and two
robbers. How many criminals did the New York
City Police Department arrest?
Controversies: Serial Comma
• Yesterday, the New York City Police Department
arrested five criminals: three burglars and two
robbers. How many criminals did the New York
City Police Department arrest?
• = five
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Controversies: Serial Comma
• Yesterday, the New York City Police Department
arrested five criminals, three burglars, and two
robbers. How many criminals did the New York
City Police Department arrest?
• = ten
Controversies: Hyphens
• In my pocket are ten dollar bills. How much
money do I have?
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Controversies: Hyphens
• Small claims arbitrator.
• Small-claims arbitrator.
• Real estate agent.
• Real-estate agent.
• Criminal justice system.
• Criminal-justice system.
Controversies
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Prepositions.
Split infinitives.
That/Which.
Innie or Outie?
Beginning sentences with “And” or “But.”
The conjunctive adverb.
Sentences.
Paragraphs.
Footnotes and endnotes.
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Persuasive-Writing Style
• Write concretely: Show, don’t tell.
Benjamin Franklin
King Solomon
Persuasive Writing
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Not law school.
Not law review.
Not moot court.
Not history.
Not mystery.
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Persuasive-Writing Tips
• Understate.
• Stress arguments, not citations.
• Visuals: Photographs, bullets point, charts, CD-ROMs,
photocopy cases.
• Bold, italics, underlining, quotation marks, question marks
(rhetorical questions), exclamation points, capitals.
• Emphasize and de-emphasize with sentence structure and
sentence length.
• Adjectives, adverbs, nouns, verbs.
• Punctuation.
• Parentheticals.
• Direct mail solicitations.
The Passive Voice
• Single Passive.
• Double Passive.
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The Passive Voice
President Richard M. Nixon
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E-Filing and E-Documents
• New York State Courts Electronic Filing System
(NYSCEF).
• Court requires PDFs due to the security needs of
legal documents.
• Tips: hyperlink, CD ROMs, enable skimming,
omit needless words, make it simple, use lots of
white space, put the most important content at
the top left of the page.
Myths About Legal Writing
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Start early.
Edit late.
Revise.
Knowing everything before you start.
Writer’s block.
Take breaks.
Write in a comfortable setting.
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Revision Tips
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Novices focus on words choice only.
Write for the reader, not yourself.
Write for the ear, not for the eye.
Improve macro-organization: each paragraph must
develop one point only.
Improve your large and small-scale organization:
order of paragraphs and sections.
Edit on hard copy, not on computer.
Read out loud, backward.
Use an editor.
Do C&S work-up.
Spell checker, grammar checker, Bluebook checker.
Ethics of Writing Persuasively
• Exaggeration.
• Emotional writing.
• Pinpoint citations.
Smith v Jones, 99 AD3d 100, 101
(1st Dept 2011), lv denied 91 NY3d
103 (2012). Or (Smith v Jones, 99
AD3d 100, 101 [1st Dept 2011], lv
denied 91 NY3d 103 [2012]).
• Cite what you use. Use what you cite.
• Dealing with the Rambo adversary.
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Organization
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Say it once, all in one place.
Thesis paragraphs: the roadmap.
Topic and thesis sentences.
Use headings and subheadings.
Citing
• Bluebook: Nineteenth edition.
• Right for federal, multi-state, and
international sources and for
law-journal editors and readers.
• Wrong for lawyers who write to or
for New York State courts.
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Citing
• ALWD.
Citing
• Tanbook: 2012.
OFFICIAL EDITION
New York Law Reports Style Manual
Prepared by the New York State Law Reporting
Bureau.
http://www.courts.state.ny.us/reporter/new_st
yman.htm
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Citing
• Limit string citing to three cases except when
you must document the sources necessary to
understand authority or a split in authority.
• Cite only to apply rules to facts or to distinguish.
• Citing well makes you credible.
• Use pinpoint citations.
• Never cite headnotes or syllabuses.
Citing
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Signals:
No signal (direct support).
“Contra” (direct contradiction).
“Cf.” if your citation supports your proposition by analogy.
“See” if your citation supports your proposition indirectly or
by inference.
• “But see” if your citation contradicts your proposition
indirectly or by inference.
• “E.g.” if your citation gives one or more examples to support
your proposition directly.
• “Id.” and “see id.” as short-form citations that refer
unambiguously to a single, immediately preceding citation.
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Quoting
• “Quote me as saying I was misquoted.” Groucho
Marx.
• Block quotations.
• Lead-ins.
• Alterations [ ].
• Omissions . . . .
• Quotes within quotes.
• Copy-and-paste on WordPerfect: Copy, home page,
edit, paste special, unformatted text.
• Copy-and-paste on Word: Copy, home page, paste,
paste special, unformatted text.
• On WordPerfect: Home page, view, reveal codes.
Clarity
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More important than concision.
Give foundation: Introduce before you explain.
State the rule before the exception.
Give the exception only if relevant.
Raise the issue before answering.
Answer before explaining.
State the point before the details.
Write directly, not indirectly.
Don’t generalize.
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Modifiers
• Keep your modifiers next to the words they modify. (“Don’t go to
a lawyer with legal problems.”)
• Don’t separate subject from predicate.
• Squinting modifiers. Where does “only” go: “The prosecutor
wanted to cross examine the defendant.”
• Dangling modifiers: word or phrase that modifies the wrong
phrase or describes something not in the sentence. The solution
is to write in the active voice. Identify who is doing what to
whom — subject, verb, object — and your modifiers won’t dangle.
• Example: “Last night, I shot an elephant in my pajamas. How it
got into my pajamas I’ll never know.”
Document Design
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Follow court rules.
Word count and page limits.
White space.
Spacing between sentences and citations.
Single space or double space?
Right-ragged margins.
Font: Prefer Century to Times New Roman,
Courier, or Calibri (11 point) (the default in
Word).
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Document Design
• Use a reasonable font size:
▫ 12-point type is a minimum.
▫ 14-point type is required by many courts.
• Margins (allow plenty of white space.)
• Italicize case names. Red v Green OR Red v
Green?
• THIS SENTENCE IS DIFFICULT TO READ
BECAUSE IT IS WRITTEN IN ALL CAPS.
Adverbial Excesses
• Clearly.
• Obviously.
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Cowardly Qualifiers
• Generally.
• Usually.
Concision and Succinctness
• Line editing.
• “There is,” “there are,” “there were,” “it is.”
• Example: “There are three cases supporting the
rule.”
• Watch for doubles: “Advance planning.”
• Don’t excessively define, qualify, or
overchronical.
• Make your citations speak to save space.
• It’s more important to be precise than concise.
• Miscue: “The ball was thrown by me to her.”
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Precision and Concision
• Fresh fish sold here today.
• Fresh fish sold here today.
• Fresh fish sold here today.
• Fresh fish sold here today.
• Fresh fish sold here today.
• Fresh fish sold here today.
Nominalizations
The fine was far in excess of.
(The fine was excessive/far exceeded.)
She has a tendency to.
(She tends to.)
I have knowledge that.
(I know.)
Defendant committed a violation of.
(Defendant violated.)
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Nominalizations
The judge was of the belief that he would be affirmed.
(The judge believed.)
The intention of the parties was to reach an
agreement.
(The parties intended to agree.)
The District Judge gave a description.
(The District Judge described.)
The Court Clerk has a preference for the submission
of documents.
(The Court Clerk prefers that documents be
submitted.)
Nominalizations
The establishment of the discovery violation might
be difficult.
Establishing the discovery violation will be
difficult.
Plaintiff will have difficulty proving that defendant
violated the court’s discovery order.
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Metadiscourse
• Writing about writing.
• “Having studied the case carefully and giving due
consideration to all the evidence, the court
respectfully concludes that . . . .”
• “Another aspect of the case that ought to be
considered is that . . . .”
• “In dissent I propose to argue that . . . .”
• “In our opinion . . . .”
• “It is hornbook law that . . . .”
• “It is well settled that . . . .”
• “It is the court’s conclusion that . . . .”
• “The court recognizes that . . . .”
Gender Neutrality
• A gourmet likes her coffee black. Not: “A
gourmet likes their coffee black.”
• Make it plural:
• “G0urmets like their coffee black.”
• Or delete the antecedent:
• “A gourmet likes black coffee.”
• No “he or she,” “him or her,”
“s/he,” or worse.
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Vague Referents
• “It,” “they,” “him,” “her,” “them.”
Write in the Positive
Fix the following:
Do not write in the negative.
(Write in the positive.)
This argument is not without support in the cases.
(This argument is supported by the cases.)
(The cases support the argument.)
We remand for proceedings not inconsistent with
this opinion.
(Consistent with this opinion.)
Exceptions.
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Mechanics
• Numbers, numerals, and figures: spell out zero
to ninety-nine and use figures for 100 and above.
• References: Give the pages at which the
reference begins and ends, separated by an en
dash (–) or hyphen (-).
• Example: “(People v Wilson, 44 NY2d 224225).”
Mechanics
• Typographic symbols:
▫ Paragraph (¶) and section symbols (§).
▫ Double the section or paragraph symbols when
referring to consecutive sections or paragraphs.
• The ampersand symbol “&” (and).
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Do’s and Don’ts
Do’s:
Don’ts
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Right tone.
Get to the point fast.
Give context.
Love simple
declarative sentences.
• Respect deadlines.
• Add visuals.
Pomposity.
Inconsistency.
Attacks and rudeness.
Redundancies.
Legal Method
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Memorandum opinions.
Concurrences
Dissents.
Majority opinions.
Plurality opinions.
Decrees.
Orders.
Seriatim opinions.
Per curiam opinions.
En banc opinions.
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Grammar
• Use a possessive to avoid a fused participle.
• “The client did not object to his trying the case.” Not “him
trying the case.”
• “I appreciate your filing the brief.” “Not “you filing the brief.”
• Delete “by and the first pronoun.”
• “The case was argued by Fred and she.” “Argued by her.”
• “Bill went to court with Fred and I.” “Went with me.”
• Run-on sentences.
• “He wrote the brief, she argued in court.”
• Comparisons: “The case is better.”
• Superlatives: “[I]n order to form a more perfect union . . . .”
• “A” vs. “The.”
Punctuation
• Use a question mark at the end of a direct
question and a period at the end of an indirect
question.
▫ Direct: Judge X said, “I am deciding the case
today.”
▫ Indirect: “Judge X said that he was deciding the
case today.”
• Use one period, not two, when the sentence ends
in an abbreviation. Not: “Ms. Packman, J.D..”
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Punctuation
• Introductory comma: “After the microwave blew up
Mary sued.”
• Colons. They go after an independent clause or
before a list on a separate line.
• “The area codes he calls are: 212, 718, 917, and 347.”
• Semicolons. They go between two closely related
independent clauses.
• Apostrophes. Write as you speak: “Lebovits’ book”
or “Lebovits’s book”?
• Em dashes.
Tense
• Past is past:
▫ “The suspect ran [not runs] from the police.”
• State current rules in the present tense.
• State past facts with current rules in the subjunctive:
▫ “This court has held that . . . .”
• State permanent, immutable truths (truths that never
change) in dependent clauses in the present tense:
▫ “Albert Einstein proved that E equals mc².”
• State permanent, immutable truths in independent
clauses in the past tense:
▫ “Albany was where Chief Judge Kaye presided.”
▫ “He was a former judge.”
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Elegant Variation
• There’s power and clarity in repetition. Use
different words to mean different things. Don’t
use different words for the same thing.
• “The prosecutor wanted to indict the defendant.
That’s why the Assistant District Attorney [the
prosecutor] secured a grand jury true bill
[indictment] against the suspect who was
arraigned [the defendant].”
Brief Writing
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Cover
Brief: Questions Presented
• Weak method: The objective “whether” statement.
• Good method: (1) “Under,” (2) “law,” (3) did” (or
“may,” “should,” “will,” “can,” etc.), (4) “court” (“this
court” or “the trial court” or “party,” (5) “issue,” (6)
add a comma, (7) “given that” (8) add 2-3 facts (only
facts, no conclusions) helpful to you (and unhelpful
to your opponent).
• Best method: The deep issue.
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Brief: Facts
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The most important consideration: Theme.
All arguments can be reduced to “We win because . . . . ”
What follows “because ” is your theory.
A smart high-school student should understand it.
It should appeal to your emotions: It’s about right and wrong.
Include every important and helpful authority, fact, and issue
that supports your theme or contradicts your adversary’s theme.
Write persuasively, not objectively.
Use only facts: No law or conclusions.
Organization: Halo effect.
Order of facts: Storytelling. (Chronologically? By issue? By
witness?)
Brief: Facts
• Start with something helpful to your client: The
protagonist.
• Use past tense.
• Perspective: How to refer to clients and opponents.
• How many facts? Less is more. (1) Eliminate
irrelevant details. (2) Compare facts in Facts section
to facts in Argument section. (3) Add “bad” facts.
• Include record references.
• End with procedure.
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Brief: Argument
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CRARC
Cite only as relevant.
Footnotes.
String citations.
Point headings and sub-point headings.
Set out the court’s jurisdiction, the burden of
proof to be applied by the trial court, and the
appellate standard of review.
Brief: Conclusion
• Tell the court what you want.
• Include a proposed order when permitted.
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Before Filing
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Check for compliance with certifications.
Include proof of service.
File papers timely
Courtesy copies.
Rhetorical Devices
• Parallel structure.
• Antithesis.
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Conclusion – Questions?
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