Factual writing doesn't have to be a bore

By Lisa Healy

The Daily Record Newswire

"Let me write the statement of facts, and I care not who writes the law," former Supreme Court Justice Louis J. Brandeis wrote, echoing the sentiment of many judges, including the former chief of the 2nd Circuit, Irving Kaufman, who agreed that the statement of facts is the "most important part of the brief."

So why do so many of us leave it until the last minute? Or short-change it as unimportant?

I recently had lunch with a former attorney who is a great writer. He lamented that he had been a terrible "legal" writer, saying that he loved adjectives and adverbs too much to write in "boring" legal style.

Leaving behind the "clearly, fantastic and gripping legal writing must be chock-full of eye-catching adjectives" style doesn't have to be boring. Here are a few tricks to help you have more fun writing the facts:

Choose your point of view

When you are writing an objective-facts statement, chronological order is usually easiest. However, when you are writing persuasively, you should think carefully about which facts will be the first that your reader sees. You want to keep the reader reading and have her on your side within a page.

Decide who your narrator is: the defendant? The police officer? The victim? A public safety advocate in a consumer protection case? The scientist who developed the process at the heart of the dispute? How would this narrator tell the story? The answer to that question will help you decide where to start.

Allow the reader to make his own decision

This concept has been discussed before. The most persuasive writing is styled so that your reader feels involved and as if he is making up his own mind. You have two jobs in persuasive writing: to make your reader want to decide in your favor, and to provide him with the legal authority to do so.

"Show, don't tell," by choosing a clear point of view, pairing facts effectively and ordering facts in a certain way. This will help you leave out the adjectives and adverbs that make your reader feel pushed (and feel like pushing back). Which of these sentences is more persuasive?

You must learn to write effective, clear, concise and perfect prose or no one will ever read a word that you have written.

Last week, 90 percent of the job listings in Lawyers Weekly listed strong writing skills as an essential job qualification.

Pair facts to suggest conclusions

If I write the following sentences together, what conclusion do you reach?

In 1997, Starbucks introduced the paper sleeve that protects customers' hands from hot beverages. Starbucks sells approximately 4 billion cups of coffee per year. Between 1995 and 2005, exports of used paper products to China from the United States increased 500 percent.

All of these statistics are facts (according to Internet sources). None of these facts were used together or found in the same sources. However, by pairing them, the writer is insinuating that the little brown paper sleeve that you use to keep your venti nonfat no foam latte from burning your hand is responsible for a 500-percent increase in used paper exports to China.

I teach my students to deal with "bad" facts this way: If you think creatively about how to order and pair your facts, you can diffuse potentially damaging facts and use them to your advantage. You can also use non-facts to your advantage. Consider this example:

Officer Jones has received extensive drug enforcement training and has been a Drug Control Unit officer for 14 years. When asked whether he waited for a call from his partner, he responded, "I should have done that, but I didn't."

In this example, officer experience is a problematic fact for the writer (the defense attorney) who is arguing that this officer didn't have reasonable suspicion to stop her client. But pairing the experience (which is relevant to the legal standard, and has to be included in her Statement of Facts) with an admitted deviation from standard practice (a non-fact, because it was something he didn't do), diffuses it and turns it into a "good" fact for the defense.

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Lisa H. Healy is an associate professor of legal writing at Suffolk University Law School in Boston. She can be contacted at lhealy@suffolk.edu.

Published: Mon, Oct 31, 2011

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