ESSENTIALS OF EFFECTIVE LEGAL WRITING (A joint production of Professors Danielle Citron and David Super
“The power of clear statement is the greatest power at the bar.”
1. Document Organization
● Organize your thoughts first. Consider jotting down an outline of your thinking before starting to write. ● After you outline your thoughts, begin drafting right away. Try to avoid fixating on any particular sentence and just dive into your project. Remember, good writing comes from rewriting. ● When you begin writing, start with your conclusion, i.e., your prediction, point, or argument. Be authoritative, even when the problem is difficult to solve. Because your office memos answer your client’s questions, assert your predictions with confidence. Let your analysis prove the strengths of your predictions while addressing the any weaknesses (grey areas). ● Use roadmap paragraphs to reveal the structure of your piece. ● Include signposts to guide your reader, e.g., signal words or transition sentences that tie a prior point to the point you intend to make. Examples: By contrast. Or Three factors . . . the first factor; the second factor; the third factor. ● Think about including headings and sub-headings to organize the information for your reader. ● While you edit, ask yourself if each paragraph makes a clear, distinct point. Consider if each point fits into your structure of the piece. ● Think about the organization of your piece on four different levels: (1) your entire document, (2) paragraph construction, (3) sentence structure, and (4) word choice. Well-organized documents and cogent paragraphs are the main features that distinguish great from pedestrian legal writers. Good sentence structure and word choice can helpfully accent well-constructed pieces, but they can just as easily destroy them by confusing, distracting, or annoying the reader. When structuring your sentences and selecting your words, start with the famous principle from the Hippocratic Oath: “first, do no harm.” Complex, over-long sentences and affected word choice will not make you sound like Oliver Wendell Holmes; they will make you sound like someone desperately trying to distract from analytical weaknesses in her or his argument by doing a bad imitation of Holmes.
2. Effective Paragraphs
● Limit each paragraph to a single point. ● Early in each paragraph, lay out your thesis (i.e., your Conclusion). Sometimes you might begin with a transition sentence that connects your paragraph to the point you made in the prior paragraph. After your transition phrase or sentence, assert your thesis.
● Avoid thesis sentences that introduce the idea without explaining its relevance. For example: The Sixth Circuit has addressed the intent requirement in fraud claims. Revision: In the Sixth Circuit, a plaintiff can demonstrate intent in a fraud claim by . . . ● Avoid block quotes. And do your best to paraphrase quotes. You undoubtedly can rephrase the court’s words in a more concise fashion. On those rare occasions when you simply cannot say something that a court says more effectively, feel free to quote a court.
3. Sentence Structure
● When rewriting, work on tightening up your sentences. Replace wordy phrases with single word constructions. See tips sheet. ● Try to keep your sentences short and punchy. This is particularly important for introductions and conclusions. ● Avoid “throat clearers” like “it should be noted that.” -Other throat clearers include it appears that, it is clear that, it is important to note that, the fact that, the issue of. -Throat clearers make you sound pompous and distract the reader from your point. ● Use specific subjects. To that end, avoid there are and it is. ● Focus on using strong verbs. Favor the active voice, unless the actor is unknown or unimportant. For example, replace a ruling was issued by the court with the court ruled. Many people use the passive voice instinctively, without realizing it. When you finish draft, search for the word “by”: many of its usages may turn out to be in close proximity to a passive construction. -Uncover hidden verbs: replace reach an agreement with agree. Other hidden verbs include reach a decision (decide), drew a conclusion (concluded), place a limitation on (limit), make allegations (allege), be in compliance with (comply), make a statement (state, assert), provided a defense for (defended), put emphasis on (emphasize). -Avoid hiding verbs in nouns (nominalization). Nominalizations add extra words and drain the life out of sentences. ● Clarity is our goal. -Keep modifiers close to the word modified. -Structure your sentences so that the actor of the sentence immediately precedes the action described. In so doing, you eliminate wordiness. -Break sentences in two when your modifying phrase is long. -Place only immediately before the word it modifies. ● Use commas correctly. -Use a comma to separate two independent clauses joined by a coordinating conjunction such as for, and, nor, but, or, yet, so. -Also include commas to set off non-restrictive (which) clauses. -Do not use commas to set off restrictive (that) clauses.
4. Word Choice – Aim for Precision.
● Avoid lazy adverbs and adjectives like clearly, very, plainly, obviously, simply, completely, extremely. Instead, let your description of your idea convey its strength by using precise words. Example: say Not supported by any evidence instead of completely baseless. ● Try to avoid distracting and cowardly weasel words (This theory never prevails except in rare circumstances); make your statement more precise instead (This theory rarely prevails or Only Delaware and New Jersey recognize this theory). ● Do not write I think or It seems to me: everything you write is what you think or how it seems to you. ● Make references clear: make sure that which, it, such and this refers to prior ideas in such a way that your reader understands its meaning. ● While and since connote temporal relationships (While his accomplice distracted the victim, the defendant picked his pocket or Since I started law school, I have had less time to practice the cello), not logical ones. For logical relationships, use although or because (Although you may be tempted, you should not give legal advice until you are sworn in as an attorney or Because he did not want another ticket, James drove well under the speed limit each would be incorrect if you substituted while for although or since for because). ● Distinguish between the court and the decision you are discussing; only mention the court when it is noteworthy for some reason outside the four corners of the opinion (Rylands imposed strict liability not The Rylands court imposed strict liability but The Brown II Court reaffirmed its earlier holding notwithstanding its change in membership). 5.
Rewrite, rewrite, rewrite!
● Number each draft. ● Print out a draft, mark it up with a pen or pencil, input the changes, and call the document a new draft. This way you save any thoughts you may have deleted and may decide to use in a later draft. ● Editing is more effective on paper, not on the computer.