Archive | Writing

Trial filings are the Ugly Ducklings of written advocacy. Rarely do judges say, “Ross, I just read the most incredible motion in limine” or “Wow, you’ve got to see this memorandum in support of partial summary judgment that I just devoured.”

Let’s face it, although most litigators hang around the trial courts, most of the name-brand brief writers are known for their appellate work.

That said, if you dig deep enough, you can find terrific writing in even the most mundane cases and filings.

I share three techniques below.

Add headings to your fact section and put them in the present tense.

Between the never-ending record cites and the long blobs of uninterrupted text, many fact sections are a turn off. One underused trick is to pepper your fact section with the same sort of meaningful headings that you would use in your argument section. By doing so, you can both break up the monotony and, as long as you keep the tone neutral, add some persuasive effect.

Also consider putting your headings in the present tense to help them come alive.

Here’s an excellent set of headings in an opening brief for Lucent before the District Court of Delaware. The bankruptcy-related brief was signed by former Solicitor General Seth Waxman, lawyers at Cravath, and others:

A.  The Parties Begin A Strategic Relationship Intended For Mutual Benefit
B.  The Parties Execute The “Subcontract” And Thereafter Engage In “Pass-Through” Transactions To Finance The Build-Out Of Winstar’s Network
C.  Winstar Assists Lucent In Meeting Revenue Targets; Lucent Provides Winstar Reciprocal Benefits
D.  At The Height Of The Telecom Boom, Winstar Obtains More Favorable Financing Terms
E.  The Lucent And Winstar Relationship Further Deteriorates

Use bullet points to contrast your opponent’s claims with your own.

Particularly in opposition or reply briefs, this technique [...]

State v. Willan (Ohio June 12, 2013) involves statutory construction; the court rules, 4-3, that the statute under which defendant was convicted unambiguously applies to defendant, but the dissent argues that the statute is ambiguous and that defendant should prevail because of the Rule of Lenity. The statute reads as follows:

Except when an offender commits a violation of section 2903.01 or 2907.02 of the Revised Code and the penalty imposed for the violation is life imprisonment or commits a violation of section 2903.02 of the Revised Code, if the offender commits a violation of section 2925.03 or 2925.11 of the Revised Code and that section classifies the offender as a major drug offender and requires the imposition of a ten-year prison term on the offender, if the offender commits a felony violation of section 2925.02, 2925.04, 2925.05, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, or 4729.61, division (C) or (D) of section 3719.172, division (C) of section 4729.51, or division (J) of section 4729.54 of the Revised Code that includes the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana, and the court imposing sentence upon the offender finds that the offender is guilty of a specification of the type described in section 2941.1410 of the Revised Code charging that the offender is a major drug offender, if the court imposing sentence upon an offender for a felony finds that the offender is guilty of corrupt activity with the most serious offense in the pattern of corrupt activity being a felony of the first degree, or if the offender is guilty of an attempted violation of section 2907.02 of the Revised Code and, had the offender completed the violation of section 2907.02 of the Revised Code that was attempted,

In my First Amendment Amicus Brief Clinic this Fall, students will naturally be told to write clearly, concretely, and precisely, with sound reasoning and in a calm, credible tone. But while that’s important, it does help to have some flair, some wit, and even some eloquence, if it doesn’t undermine the other requirements.

Naturally, this sort of thing doesn’t come easily even to experienced writers, much less to students Indeed, attempts at wit and eloquence often backfire, for instance if they sacrifice a precise description for a more colorful but imprecise one, or if they make the brief seem strident or exaggerated. They also risk distracting the reader instead of winning him over. At the same time, a colorful and memorable way of putting something, especially when it captures the moral or practical truth at the heart of the argument, can help move the reader to see things your way.

I’d therefore like to show students some particularly effective passages, from briefs filed in court, that have a suitable (which I think in this case must mean subtle) wit or eloquence. Can any of you recommend some examples? Please post the relevant passages in the comments, together with a citation to the brief itself. I am not looking for such passages from judicial opinions; judges can get away with things that lawyers cannot. I’m also not looking for entire briefs — I’ll have my students read several briefs that are generally quite effective, but for this part of their education I’d like to give them just short excerpts. Many thanks to those of you who can help with this. [...]

David Post faulted Justice Scalia’s footnote 1 in Monday’s City of Arlington v. FCC (see also this follow-up), so I thought I’d mention my own thought on the subject, because I think there’s actually a useful lesson to law students there.

The footnote, which accompanied a sentence that began, “In July 2008, CTIA—The Wireless Association,” stated:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

And my sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

I’m [...]

Law review editors: If you publish the abstracts to your articles in italics, please stop. Big blocks of italics are harder to read than ordinary Roman text; that’s why you don’t see books, articles, or newspapers printed all in italics.

There are many ways that you as publishers can use to set off the abstract from the rest of the article — spacing, indentation, borders, and more. There’s no reason you have to use italics for this, and there’s ample reason not to use italics. Nor is there some deeply entrenched custom of using italics: many law reviews indeed don’t print abstracts in italics, but unfortunately quite a few still do. If you’re on the Dark Side of this, come over to the right side. [...]

Some time in the next several months, I’ll be putting together the fifth edition of my Academic Legal Writing book. If you’ve used the book in your writing, or supervised students who have, are there any additions, changes, or other improvements that you could recommend? Many thanks! [...]

I just stumbled across the following in a law review article: “[so and so] recently published a book-length project.” This book-length project is otherwise known as a “book.” The author of the offending phrase is generally an excellent writer, so it happens to the best of us. [...]

You know there’s trouble ahead when you see, in an early footnote to a law review article (31 U. West Los Angeles L. Rev. 257 (2000)),

Editor’s note: To better demonstrate the author’s passionate voice, many points of emphasis hereunder have been italicized, bolded or capitalized accordingly.