Common courtesy of good legal writing

Good legal writing involves a kind of courtesy. It identifies what matters and concisely and fully explains why it does.

It is a courtesy because it anticipates the needs of the reader and meets them with generosity. Generally, such writing follows at least four basic principles: it obeys the fundamentals, answers the question, thickens the law and ramifies the issues. Each principle serves the twin goals of comprehension and earned credibility, both of which will serve you well in your career.

Obey the fundamentals

As a courteous legal writer, in addition to following the rules of grammar, you will supply a well-organized document replete with crisply written headers to identify the ideas of each sub-section and guide the reader through an analysis that moves sensibly from point to point.

That minimizes the distraction of translating your idiosyncratic phrasings and thought-patterns into the commonly shared language of logic and formal written English. (There is a place for "Ulysses," but not in a law firm.)

Answer the question posed

This less obvious point is sometimes lost on newly minted associates and law clerks. Tossed into a turbulent sea of unfamiliar facts and law, you may have an irresistible temptation to grasp for the one bit of analysis that seems clear.

The result may be a memo that fails to answer the question posed while answering a much easier question of little or no relevance. Or it may be an "overview" type memorandum that demonstrates your successful first phase of research, in which you (admirably) have obtained a comfortable handle on the general field of law in play (e.g., the order of priorities in secured transactions), but have failed to address the narrower issue that the partner or judge actually asked about (e.g., the effect of a mechanic's lien on a secured perfected party's interest in the collateral).

Accepting that anguish and struggle sometimes go along with § to belabor the aquatic metaphor § swimming yourself to safety, as a courteous writer you will avoid both outcomes by answering the question.

Thicken the law

Go beyond Lexis or Westlaw to find the treatises, restatement provisions, model codes, C.J.S. and Am. Jur. sections, even CLE practice manuals that help elucidate and contextualize the caselaw.

For any former 1L, it goes without saying that these general authorities will help jumpstart your research into a novel area of the law. But including such secondary authorities can help to develop a depth of understanding that would otherwise elude you.

Quoting the pertinent language from these sources in parentheticals is also a good idea. It shows the reader, particularly one who is new to your work, that the law says what you say that it says § a courtesy because it spares Judge Blackstone of the nagging need to double-check your work.

(You know that you have successfully internalized this form of courtesy when you find tactile pleasure in typing nested parentheses in a Word document and are aesthetically stimulated by the sight of a densely packed page of underlined case names and italicized treatise titles.)

Ramify the issues

This is a bit like washing an entire window when you have been asked to burnish only a foggy spot in the middle. Refine and expand the question to see how it resonates through your case as a whole.

While researching the substantive elements of a trespass claim, for example, remind yourself to scan for potentially decisive defenses that you learned about in property law, such as a fatal counterclaim of adverse possession.

And while researching the basic elements of adverse possession, consider also exploring the limitations of that doctrine. Does your jurisdiction prohibit adverse possession against the public? If so, is there any indication that a public entity has any ownership claim whatsoever to the parcel or that the public has long used it as a beach for swimming? If so, does this qualify your client for the exemption from an adverse possession claim?

(Sometimes ramification is a bad idea. If a partner poses a very focused question under significant time pressures, do not ramify. Generally, however, ramification makes sense.)

The fruit of ramification may be a small footnote, an additional section in a memo or simply an oral report or cover e-mail on issues that warrant further exploration. Sometimes there will be no fruit. But the process of ramification will, in almost every instance, solidify your understanding of your analysis as a whole.

These four techniques are by no means exclusive. Applied diligently, however, they will improve your prose and lay a solid foundation for a career of good writing. At times to your surprise, your readers will thank you.

Published: Mon, Mar 8, 2010

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