“The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.” Sometimes, despite our best intentions, Will Rogers’s statement is true. How can you avoid writing that will make you the subject of ridicule and likely result in your defeat?
Our readers—judges, juries or the public—are often skeptical about our motives and means. After all, we are paid to take a side, so how can our readers trust that we are telling the truth and not putting our spin on the facts or the law? There is no single answer to these questions, but I will share some pointers that I have learned from my practice.
First, decide what you need to say and what you cannot say. You need the law supporting your argument and the facts – nothing more or less. What is more? All the other good stuff you want to say but is not necessary to prove your case. That extra stuff must be cut to keep your readers focused and to stay within page limits.
What you cannot say is another issue. It is tempting to tell your client’s story with the perfect words to describe why your case is strong and you should win. However, sometimes you do not have that client or those facts. Ethical writers cannot change the bad facts or attempt to distract a reader from an adverse legal authority on point. Do not exaggerate your good facts or ignore the bad ones. Do not misstate any legal authority. Do not believe every word your client tells you. Rule 11 is good to read before you sit down to write a brief. Once you lose your credibility, you cannot buy it back.
Second, organize your writing to make your story clear and your case simple to understand. Your reader should know what your client is asking for and why you should win. You must explain the facts and why those facts compel a legal result in your client’s favor. After you have finished your research, make an outline before you begin writing. Stick to the outline and make sure your writing explains, first, why you win, and, second, the problems with the other side’s arguments or facts. Explain how their “facts” are untrue, exaggerated, or irrelevant, or how their legal analysis is off the mark. A focused argument flows naturally and the reader never feels lost. You must write to help your reader, not to impress with elegant words or long sentences.
Third, step back from your writing to see if it helps the reader understand why you should win. This next step requires editing, rewriting, simplifying, and deleting anything extra. Put aside your work and read it after a break. If you can, put it aside overnight and read it the next day. Does it still make sense? What is missing? What is distracting? Then ask someone else to read it and tell you if they understand it and if they are persuaded by it, or not.
Review it again to confirm that you followed your outline with each topic sentence guiding the reader to understand what each paragraph proves. Make sure each sentence is on point and written concisely and clearly.
When you think you are done, go back and edit it again. Get rid of as much legal words and jargon as you can. Then read it aloud. When you get stuck on something you are reading aloud, your reader likely would have stumbled as well. Proofreading your work again and again helps prevent embarrassing errors that detract from your argument and erode your credibility.
Etiquette and tone are also important considerations. If you would not say in person what you are writing, then do not write it. With time and the humility that comes from an occasional loss, your writing will be a refreshing treat for readers who await a story that makes sense and gets to the point. Will Rogers also said, “Good judgment comes from experience, and a lot of that comes from bad judgment.” So, if you lose, go back and read your work afterwards. Learning from mistakes is better than ignoring and repeating them. Good luck, and remember to take your work seriously, not yourself.
NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.
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