Martha & GeraldThe Employer’s Perspective
It’s your first week at work. Your client is fighting over a contract. Your supervisor asks you to review some letters and the contract to which they refer. Your supervisor wants you to prepare a short working internal and confidential office memo before her meeting later that day with the adversaries’ attorneys. You’re confident you’ll understand the letters: You’ve written and read letters your entire life. You’re more scared about the contract, even though you took contracts as a first-year law student. The contract makes sense when you read it. You identify the important clauses after you study the attorneys’ back-and-forth. You study the letters.
The issues are apparent because the contract is straightforward. You easily write a memo to your supervisor, being sure to spell check and proofread it. She then re-schedules the meeting for the next day. You seize on the extra time to re-read your memo. “Gee,” you think. “I’m an attorney now. Shouldn’t I sound more lawyerly?” That’s when the “hereafters” and “said contracts” creep in. Before you know it, your comprehensible, cogent advice has morphed into gobbledygook.
Just because you’re an attorney doesn’t mean you should abandon basic, common-sense writing tools and objectives. Precisely because you’re an attorney, you should cling to crisp, honest text. Your busy supervisor wants and needs a concise, easy-to-understand, and accurate assessment. Your memo serves as the foundation that expands a file with a potentially long life.
Although the dispute might settle quickly, your memo might be read repeatedly if the dispute goes to litigation. You should write your memo so that it can develop into a motion or a memorandum of law. You should write your memo so that if you’re out of the office and the file becomes active, your colleagues can rely on it to handle a telephone call with an adversary, to have a conference call with a judge, or to use it to prepare a related document.
If the underlying documents signal a particular legal issue, identify it. For example, if a statute of limitations might limit the ability to raise a breach-of-contract claim, you need to address this in the memo. You must include relevant case law, but you want to avoid including unnecessary information or details about the cases. Articulate what’s important about the law, include potentially controlling cases and determinative facts that could be problematic, and discuss how something troubling could interfere with your recommendations. You’re writing for a reader who needs to know quickly about the good and the bad.
The meeting takes place the next day. The matter doesn’t settle, but to reach an agreement the attorneys agree to each draft additional contract clauses. Your supervisor, who has just learned about a fire she must put out by the end of the day, asks you to draft the new clauses that support your client’s objectives. It doesn’t occur to you to complain: She’s not only busy, she’s your boss. Again – you took contracts in law school, and even a drafting clinic, so this should be okay. And it will be, if you focus on the issues and describe them in direct terms instead of trying to sound like a lawyer.
You don’t need to define each contractual term in accordance with Black’s Law Dictionary. But you want the terms of the contract to be clear. As you write the additional clauses, you add to the definition section where appropriate. Because the additional clauses might be the subject of further negotiations, your drafting should lean heavily toward your side, leaving room for compromise. You should stay focused on the objectives and write without clutter. As a practical matter, you ask your supervisor or a colleague in the office for samples of relevant contracts to avoid reinventing the wheel. You’ll be applauded for your efforts.
After you’ve added the clauses, you update the memo to reflect the new drafting. As the negotiations continue and you follow through with additional research, you keep the file memo up-to-date. Every time you do this, you remember to edit, proofread, and spell-check.
Effective writing reaches an unequivocal conclusion as it identifies pitfalls and weaknesses. Effective writing assesses the combined impact of the facts and the law, as synthesized from the correspondence and documents that form its basis. Effective writing eliminates unnecessary words with edits that simplify the information for which your busy boss is waiting.
The Court’s Perspective
Despite your best efforts, your client’s contract dispute can’t settle. Your client wants to sue. Your supervisor asks you to draft the pleadings. Drafting civil-litigation documents is not particularly difficult. But don’t just pull out a form book and fill in the blanks or believe your job is done by assigning a paralegal to the task. Your goal is to avoid boilerplate. Each case is unique; strategy is required. Structured, precise, and nonconclusory pleadings will lead clients to correct factual mistakes, adversaries to settle, and judges to rule favorably on your opponent’s motion to dismiss.
Your case goes to full-scale litigation. Now you must write a persuasive brief. As a lawyer, whether new or experienced, you’ll be writing for a busy, skeptical reader – the judge – who needs to make a decision. The judge will rely on you, or dismiss what you say altogether. Aim for the decisionmaker, not for your client or adversary.
You want to make it easy for the judge to rule for you and to make the judge want to rule for you.
To do that, you need to get to the point quickly and enunciate immediately and often the relief you seek. Write in plain English. Use simple, declarative sentences, with vigorous verbs and concrete nouns, not adjectives, adverbs, passives, and negatives. Be accurate, confident, and exact, not cowardly, general, or tentative. Follow the court’s rules. Be civil and professional, not belligerent and extravagant. Understate; never overstate or overpromise. Focus on the elements of your cause of action, defense, burden of proof, and standard of review. Write concisely and succinctly. In your organization, say it once, all in one place. Limit your issues to the two or three that count. Stress content, not style. Style distracts, while content persuades. Then stress rules, not cases. Cite after you give your rules, but don’t dwell on givens or history or try to impress with string citing and massive research. Argue facts, and then focus on the key to your argument: applying law to fact. Rebut in advance what your adversary might argue. Consider format: use plenty of white space and include exhibits. Don’t use block quotations unless you need the court to interpret a contract or statute or you want the court the see quickly the factors recited in a seminal case. Persuade with nonconclusory language.
The New Attorney’s Perspective
A judge will never teach you to write. Nor do you want to copy a judge’s writing style; you should write court documents for a judge, not like a judge. If a supervisor teaches you to write, it’s because doing so means a better product in the future. Supervisors and judges don’t care about your writing process. They care about results.
Your writing matters to judges and supervisors only because the better your work product, the better their final work product. The better your draft, the less work your supervisor will need to do to turn your work into something acceptable. The same is true for judges: The better your work, the less the judge will need to do to write the decision quickly and correctly.
But your writing process matters to you: Your writing will affect your clients and your professional future.
To make your writing as good as it must be in our writing-centered legal system, you must know the purpose of your document and who your reader is.
You must also take charge of your own writing. Taking charge of your writing as a new attorney means three things: study, care, and accepting criticism.
l Studying means skimming at least one good legal-writing text a year.
Regardless how busy you are, studying means better, faster writing and will save time in the end. Many texts will suit the purpose. We recommend William Strunk Jr. & E.B. White, The Elements of Style (4th ed. 2000), for grammar, usage, and style generally and, for lawyers specifically, Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well (2d ed. 2002). Studying also means taking an occasional legal-writing CLE course.
l Caring about legal writing means consulting a reputable guide whenever a question arises – and keeping the guide next to your computer. It’s not enough to use styles or formats that look or sound right or which someone years ago said is correct. We recommend Bryan A. Garner, The Redbook: A Manual on Legal Style (2002).
Caring also means ruthlessly editing your writing – skeptically reading and mercilessly improving your own work. Caring means starting early and editing often. You don’t need to know everything before you start. You’ll get writer’s block, an affliction no lawyer can afford. But you need to know everything by the time you’re done. Caring means outlining if your document is long or complex. Caring means experimenting with writing styles every time you write. Caring means practicing: Taking every opportunity to write.
l Accepting criticism means seeking out editing suggestions, not to show your editor how smart you are, but rather to improve your current document and your skills for the next time. You must write for your readers, not for yourselves; editors know that. You can’t be ego-driven or defensive.
Legal writing is the hardest legal art to master. It takes dedication and years to get as good as you can and is worth it if you, the new lawyer, want to succeed in the legal profession, do right by your clients, and affect the administration of justice. The effort is worth it.
Martha Krisel is Chief Deputy County Attorney for Special Projects for the Office of the Nassau County Attorney.
Honorable Gerald Lebovits is a judge for N.Y.C. Civil Court and an Adjunct Professor at St. John’s University School of Law.
Nassau County Bar Association ALL Rights Reserved
15th and West Streets | Mineola, NY 11501 | (516) 747 4070 | Fax (516) 747 4147