McElhaney on Litigation

Legal Writing That Works


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Illustration by Edwin Fotheringham

Nick Wheeler stood up in front of everybody, beaming from ear to ear.

“Angus,” he said in his introduction, “I can’t tell you how happy I am that you’re giving this course on legal writing. And before you start this session, I want to show you one of the products of your teaching: a brief we just filed in Judge Gunn’s court on a hearsay issue.”

Everyone was in the conference room at the offices of Randolph and Wheeler, ready to get more of “Angus on Legal Writing.” Even though I was sitting way in the back, I could tell Angus was uncomfortable as he looked at the brief.

“I think you can take a lot of the credit for the quality of this brief,” Nick said.

Angus winced.

“Who actually wrote it?” said Angus.

“Five or six of us,” said Nick, still beaming. “It was a team effort, using the Angus method. Plain language. Short sentences. One point at a time. No double negatives. No footnotes. No passive voice. Real names instead of procedural titles. And we read it out loud again and again, polishing every sentence.”

Angus smiled half-heartedly. “Seems easy enough to follow,” he said. “But tell me. It deals with just one hearsay problem?”

“That’s right,” said Nick. “A declaration against interest.”

“Then why is it 57 pages long?” said Angus. “Doesn’t Judge Gunn have a 40-page rule for briefs?”

“Sure,” said Nick, “but nobody follows it. Besides, we wanted to make sure we covered every possible question, every conceivable issue.”

“But why?” said Angus.

“Because we’re lawyers,” said Nick. “That’s our job.”

“Maybe that’s a good place to start,” said Angus.

GO FOR THE LEAN LOOK

It’s not that you’ve got to say something— it’s that you’ve got something to say. The distinction is important.

Writing a brief is like trying a lawsuit. You start with your theory of the case—the basic idea that not only explains the legal theory and the factual background but also ties as much of the evidence as possible into a coherent, credible whole.

That means making choices. You throw out arguments that aren’t plausible.

You pick between the inconsistent legal theories. You cull out the weak points. You toss out whatever gets in the way. You discard what doesn’t need to be said, even if it doesn’t hurt.

What’s left is tight. Lean. Spare. It crackles with power because it’s undiluted with stuff that doesn’t matter.

Are there risks in that approach? You bet. Good legal writing is good writing. It’s also good lawyering. Good writing and good lawyering both involve taking risks.

That runs counter to our law school training, where we were rewarded with good grades for spotting and articulating every conceivable legal issue but were almost never expected to drop the ones that wouldn’t fly in the real world.

Nobody told us that failing to toss out the arguments that would not fly ultimately runs a bigger risk: creating a mishmash of legal theories that produces lumpy, sodden writing.

A good theory of the case is the product of lots of choices—each with its own set of risks. A good theory of the case is what gives you something to say.

One of the easiest ways to obscure your theory of the case is to get caught in the word processor trap.

The ease of electronic editing has created the notion that you ought to write everything down first, no matter how jumbled. Just get it in the word processor. Then you can fix it and clean it and cut it later.

The first problem with this is the puritan ethic: Waste not, want not. Deleting entire sections of a brief seems wasteful, especially after you’ve taken all that time to edit and polish.

And then pride of authorship becomes a factor. So you end up keeping all that material you were going to trim, figuring it can’t hurt to leave it in.

But it does.

Humans always have used the story to understand facts and resolve issues.

Everything in the law is a story. Every case, every motion, every brief is a story.

The winning brief needs to tell a persuasive story.

Lots of thoughtful judges admit they start to take sides—lean one way or another—as soon as they read statements of facts. The statement of facts is the most important part of the brief because it points the way to elemental justice.

While there are lots of ways to write a statement of facts, a good one passes two essential tests.

First, it stands alone. Anyone reading your statement of facts should understand what the case is about without having to look at anything else.

Second, the statement of facts should make the reader take your side. It should be persuasive without being argumentative.

Hold on, you say. That’s impossible. How can anything be persuasive without being argumentative?

The answer is the secret to persuasive writing.

Facts, not opinions, are what convince the reader. When you start interpreting the facts—characterizing what people said and did—you’ve stopped guiding your reader through the thicket of the lawsuit. Instead, you’ve popped out the legs on your traveling sales case, hung up the sign on the front of the case and wound up a dozen or so of your little walking dolls, hoping sales will be brisk.

But you don’t want to be the street corner huckster; you want to be the guide your reader can trust. So be careful about ev­­ery sentence you write.

Understate rather than overstate. Better yet, don’t eval­uate at all. Let your reader do it for you.

Avoiding characterization is one of the keys to good editing. When you go back over what you’ve written, cross out every mod­ifier—every adjective and adverb—you can. It’s sur­prising how words that were meant to lend strength to your message actually get in the way.

Nouns and verbs are the gut-stuff of a good story. Adjectives and adverbs are often discounted as the paid-for feelings of a professional advocate.

Principles only have meaning in the context of actual events. In other words, every rule is a story. Your job is to tell that story so it compels your reader to apply the rule the right way.

Second, common sense is a great leveler. Some ideas sound almost incomprehensible when they’re presented as great pronouncements:

“Authentication is no cure for irrelevance.” It is stated more comfortably in everyday language: “It doesn’t matter how reliable the proof is if it doesn’t have anything to do with the case.”

Third, take advantage of context. It is impossible to make each sentence a completely accurate statement of the law, so don’t try. You don’t have to list all the exceptions at the same time you nail down the general rule. They are easier to understand if you save them until they’re needed. And if they’re not needed, you can leave them out.

SOMETHING THE JUDGE WILL LIKE

You don’t have to say everything, so what you do say had better be good.

You don’t want your reader to react like the proverbial fifth-grader who wrote in his report: “This book told me more about penguins than I wanted to know.”

Besides, a brief is not a treatise. Every point should count. Resist the impulse to put your reader through everything you had to learn to write the brief.

Nor is a brief an initiation into a secret order. Don’t haze your readers by torturing them with extra rules of law that they don’t need.

Never make a dis­honest argument, an inapt analogy or an unfair comparison. If you do, the reader can’t trust you or what you have to say.

That is why you need to get rid of every weak argument you have. Weak arguments reflect on the credibility of the writer, so they drag the entire brief down to their level.

Think of how many dreary briefs a judge has to read in a judicial lifetime. What can you do to make your work sparkle, so that your judge actually looks for­ward to reading what you have to say?

Here are some ways to do it:

• First, have a theme—a strong central idea that underlies everything you have to say.

• Second, start strong and end strong. Even though you are determined to make only great arguments, start and finish with your best two.

• Finally, illustrate what you have to say. Every point worth making is worth making well. Every point worth making well is worth illustrating. One simple example sticks better than a whole book of abstractions.

Sidebar

McELHANEY AT HIS BEST

The ABA Journal is occasionally reprinting some of James McElhaney’s most popular columns from past years. This article, his 100th for the Journal, originally appeared in the January 1996 issue under the headline “The Art of Persuasive Legal Writing.”


James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.


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