Bryan Garner on Words
10 tips for better legal writing
1) Be sure you understand the client's problem. When given an assignment, ask plenty of questions. Read the relevant documents and take good notes. Learn all you can about the client's situation. If you're a junior asked to write a memo or a motion but you aren't told anything about the client's actual problem, ask what it is in some detail. You must be adequately briefed—and that's partly your responsibility. There's almost no way to write a good research memo in the abstract. As you're reading cases and examining statutes, you'll be in a much better position to apply your findings if you know the relevant specifics.
2) Don't rely exclusively on computer research. Combine book research with computer research. Don't overlook such obvious resources as Corpus Juris Secundum and American Jurisprudence. Look at indexes, digests and treatises to round out your understanding of the subject matter. And when it comes to computer research, don't forget Google Books (especially the advanced-search function): It can open up a great variety of fresh resources in addition to what you find with Westlaw or Lexis.
3) Never turn in a preliminary version of a work in progress. A common shortcoming of green or hurried researchers, especially when a project is slightly overdue, is to turn in an interim draft in the hope of getting preliminary feedback. That can be ruinous. What busy supervisor wants to read serial drafts? Besides, you should never turn in tentative work—it's better to be a little late than wrong. That goes for turning in projects to impatient clients as well. But keep your supervisor (and, if warranted, your client) updated on the status of your work.
4) Summarize your conclusions up front. Whether you're writing a research memo, an opinion letter or a brief, you'll need an up-front summary. That typically consists of three things: the principal questions, the answers to those questions and the reasons for those answers. If you're drafting a motion or brief, try to state on page one the main issue and why your client should win—and put it in a way that your friends and relatives could understand. That's your biggest challenge.
If you're writing a research memo, put the question, the answer and the reason up front. Don't delay the conclusion until the end, as unthinking writers do, naively assuming that the reader will slog all the way through the memo as if it were a mystery novel. And never open with a full-blown statement of facts—despite what you may have learned elsewhere. Why? Because facts are useless to a reader who doesn't yet understand what the issue is. Instead, integrate a few key facts into your issue statement.
5) Make your summary understandable to outsiders. It's not enough to summarize. You must summarize in a way that every conceivable reader—not just the assigning lawyer—can understand. So don't write your issue this way: "Whether Goliad can take a tax deduction on the rent-free space granted to Davidoff under I.R.C. § 170(f)(3)?" That's incomprehensible to most readers because it's too abstract and it assumes insider knowledge. Also, it doesn't show any mastery of the problem.
You'd be better off setting up the problem in separate sentences totaling no more than 75 words: "Goliad Enterprises, a for-profit corporation, has granted the Davidoff Foundation, a tax-exempt charity, the use of office space in Goliad's building free of charge. Will the Internal Revenue Service allow Goliad to claim a charitable deduction for the value of the rent-free lease?"
Then provide the brief answer: "No. Section 170(f)(3) of the Internal Revenue Code disallows charitable deductions for grants of partial interests in property such as leases."
Front-loading the information, with a comprehensible question before the answer, is more helpful to your senior colleagues because it achieves greater clarity. Don't presume that your colleagues will (or can) translate your obscurity.
6) Don't be too tentative in your conclusions, but don't be too cocksure, either. Law school exams encourage students to use the one-hand-other-hand approach: The outcome could be this, or it could be that. Even experienced lawyers sometimes hedge needlessly. This approach can look wishy-washy. What's wanted is your best thought about how a court will come down on an issue.
7) Strike the right professional tone: natural but not chatty. Some lawyers, especially less experienced ones being encouraged to avoid legalese, end up turning blithely informal and flouting the norms of standard English, especially in email messages. For example, they might write "u" instead of "you" and "cd" instead of "could." Some even use emoticons. Even if you find yourself working for a firm where some people do these things, exercise restraint. Use conventional punctuation and capitalization in your email messages. Your colleagues won't think any less of you, and your supervisors will appreciate your professionalism.
8) Master the approved citation form. Find out what the standards are for citing authority in your jurisdiction. In California, lawyers follow the California Style Manual. In New York, they should (but frequently don't) follow the New York Law Reports Style Manual. In Texas, every knowledgeable practitioner follows the Texas Rules of Form. Other states have their own guides. And, of course, The Bluebook and the ALWD Guide to Legal Citation are widely used as defaults (and sometimes required by court rules). Even if you're not inclined to care much about these things, you'd better learn to obsess over them. Otherwise, you'll look unschooled.
9) Cut every unnecessary sentence; then go back through and cut every unnecessary word. Verbosity makes your writing seem cluttered and underthought. Learn to delete every surplus word. For example, general consensus of opinion is doubly redundant: A consensus relates only to opinions, and a consensus is general by its very nature. You can replace the phrase a number of with several or many. And in order to typically has two words too many—to can do the work alone. So instead of in order to determine damages, write to determine damages.
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, when his student clerk, Eugene Gelernter (now a New York City litigator), brought him a draft opinion, 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." We should all have such a mentor.
10) Proofread one more time than you think necessary. If you ever find yourself getting sick of looking at your work product and starting to do something rash such as throwing your hands up and just turning it in at that moment, pull yourself up short. Give it a good dramatic reading. Out loud. You'll still find some slips and rough patches—and you'll be glad you did. Better that you find the problems than your readers do. Learn the lesson that mutilating and reworking your own first drafts actually builds your ego as a writer and editor.
Let's say you're a 30-year lawyer, like me—not a new lawyer. These same pointers hold true. It's a good reminder: Don't take shortcuts.
Bryan A. Garner is the president of LawProse Inc. He is the author of many books and the editor-in-chief of all current editions of Black's Law Dictionary.