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This article appeared in Lawyers' Weekly USA on February 26, 1996.


Interview:

Win Cases With Effective Writing
Be Concise; Avoid Adjectives and Archaic Terms

Every lawyer needs an editor, says Steven Stark, a former litigator who taught legal writing at Havard Law School and now gives CLE courses around the country.

Lawyers are too wordy and too convoluted in their writing, which hurts them as they try to persuade in written briefs and memos, says Stark, a commentator on National Public Radio, a former columnist for The Boston Globe, and a contributor to The Atlantic Monthly magazine.

Stark spoke with Lawyers Weekly USA's Bill Ibelle about ways lawyers can improve their writing.

"If you can't communicate clearly, you're crippled as a lawyer," says Stark. "If you're a litigator, written communication will determine whether you win or lose cases. Even if you're not a litigator, it makes an enormous difference in your ability to communicate effectively with your clients and your opponents."

What one thing can lawyers do to improve their writing?

The most important thing they can do is to get an editor.

All writers need editors, whether it's you, or me, or F. Scott Fitzgerald. There are two reasons: The first is that people tend to fall in love with their own prose. It's part of human nature. And so they don't want to change it.

The second reason is that when I write something, I know what I'm trying to say. So when I read it over, I don't see what isn't clear because I already know what I'm trying to say. So I need someone who doesn't know what I was trying to say to raise questions. I'm not saying you have to go out and hire an editor. You can team up with other people in the office.

Editing is one of the keys to the writing process and you just can't short-circuit it. But lawyers often do, and it shows.

Has there been an increase in the number of cases that are decided "on paper"?

What most judges have told me is that in litigation, the brief is much more important than oral arguments. I'm not saying that oral argument never makes a difference, but in the grand scheme of things, the brief is much more important. Judges know pretty much where they are going to go after reading the briefs.

The importance of writing in the legal profession is a relatively new thing. If you go back to the 19th Century most litigation was oral. Until the invention of typewriters it was very hard to reproduce any material. So you'd file a table of authorities and then go into court and argue for hours. It's only with the rise of office automation that writing becomes more important in the legal profession.

Interestingly, if you look at a lot of the bad habits lawyers have--hyperbole, asking rhetorical question, wordiness--those aren't problems if you're speaking. I think many problems lawyers have in their writing is because they are doing things the same way as when law was primarily a spoken profession. But of course, writing is different than speaking.

Since judges are supposed to decide cases dispassionately, why would a powerfully written brief be any more effective than a poorly written brief that contains the same facts and legal arguments?

Because the best briefs persuade us without our ever being aware of being persuaded. If it doesn't make any difference how you argue something, why argue it in the first place? The judge will just figure it out for him or herself.

Why do you recommend that lawyers begin a complex document with a summary or conclusion?

Lawyers are famous for "backing into" things; not because they were born that way, but because law school teaches them that's a good way to write. Law schools teach the old method--issue, analysis, conclusion--which means you "back into" your conclusion.

Law school's wrong. It's a bad way to write, particularly for lawyers.

The conclusion should come first. Tell a reader what you're going to be saying: "Here's the point," "Here's what this contract is about," "Here's what this letter is about." Tell them right up front what the point is; you don't back into it.

You stress the importance of brevity, but isn't that risky when thoroughness is the foundation of the legal system?

The main complaint by judges about litigators' writing is that it's way too long. It's too exhaustive.

The main reason is that lawyers don't prioritize their arguments. If I make two arguments in a brief, I can make two pretty good arguments. But if I make six arguments in a brief, I will probably distract attention from the two major arguments.

Two many lawyers approach a brief as if they are a waiter a cocktail party: "Here are five arguments your honor. Take one." That's wrong. A lawyer's job is to tell the judge which one to take; that's what advocacy means. Any good advocate is selective. That doesn't mean you can't make your six arguments; it means that your best two better make up 90 percent of the brief.

Is being exhaustive always a mistake?

It depends on what you're drafting.

When a lawyer writes a contract or a judge writes an opinion, these are written with an eye towards people trying to find a loophole in the future. So the people who draft these things become "paranoid," and for good reason. You know people are going to try to take your words and do something with them that you never intended.

But most of what lawyers write isn't read this way.

If you write a letter to a client or a brief for a judge, they aren't going to sit there saying "What did he really mean in paragraph three on page nine?" They are either going to be convinced by it or not.

So lawyers' innate caution, which they learn in drafting, doesn't apply to much of the other writing they do. Therefore they don't need to be quite as exhaustive.

Is there a movement to improve legal writing?

Yes, the whole "plain-English" movement. But it's a losing battle because much of the culture of being a lawyer moves you in the direction of being an ineffective writer. So you have to be constantly vigilant.

Why does legal writing continue to be so inaccessible?

It's in a lawyer's nature to be comprehensive. It's part of our legal training: "Nothing but the truth and the whole truth." Lawyers try to understand every nuance, detail and comma.

The problem is that anything written like that is going to be inaccessible to a lot of readers. Good writing simplifies the subject matter for the reader, at least initially, before it gets to the complexity.

Also, lawyers write about a lot of technical subjects but don't receive any training on how to be a good technical writer. If you've ever tried to read manuals explaining how to set up a computer, you can see it's not easy to be a technical writer.

What can lawyers do to improve their writing?

Read good writing.

That's the way any writer learns. If you want to be a good poet, you read poetry. If you want to be a novelist, you read good novels.

Lawyers are unusual among writers in that they don't read good examples of the type of writing they do in an attempt to improve themselves. Most lawyers read judicial opinions. That's great if you're going to be a judge. But the writing judges do is very different from the writing lawyers do.

So if you want to be a good advocate, you ought to read good briefs and well-drafted contracts.

Even in law school we read thousands of opinions. How many briefs do we read? So the law school curriculum is not constructed in a way to produce good writers.

Are there other reasons why legal writing has deteriorated?

Footnotes. If you go back and read briefs from 40 years ago, they contained very few footnotes. There are many more now because lawyers are copying judges; and judges didn't use footnotes until about 50 years ago.

Judges didn't start using them until they started hiring law clerks from law school. What do you learn how to do in law school? You learn how to write for law reviews, which are swamped in footnotes.

What's wrong with footnotes?

Footnotes have a limited place. But ultimately they derail the flow of a narrative. Footnotes are essentially an academic device to identify sources. But lawyers have citations for that.

So what are lawyers using footnotes for? Usually, it's to make arcane points that are not really relevant, or to add something because you want to get inside the page limit and you have too many words. But footnotes tend to distract the reader from what you're trying to say.

You say lawyers should not use the passive voice. What's wrong with it?

Verbs are what moves the English language: Who did what to whom. If your verbs are passive, your prose will be passive.
When we use the passive voice, we tend to compensate by using a lot of adjectives and adverbs, which makes our writing even more wordy.
Also, when we write in the passive voice, we often leave out the subject of a sentence. "This action was filed in the Second District of New York." It never says who filed it. Maybe the reader can figure that out for him or herself, but after a while, reading a brief like that is like walking through quicksand. The reader has to do too much work and gives up.

In legal writing, there are two more reasons to avoid the passive voice. If you look at the languages of rhetoric and advertising--which are similar to legal writing in that both are aimed at persuading people--they never use the passive voice. "Tastes great, less filling," not "It should be tasted because it's less filling." Martin Luther King said, "I have a dream," not "A dream has been had by me."

There is a lesson in that: When we look at people who are trying to move other people, they rely on the active voice.

Finally, anything in the passive voice tends to be more complicated to follow. If you ask directions to my house, I'll say "Make a left here and take a right there," not "Main Street should be gotten on, left turn should be taken."

Legal writing is often full of directions, "Here's what you ought to do, client," or "This is what I think you ought to do, judge." And if you're giving them the advice in the passive voice, a lot of times they can't follow the directions.

What's wrong with adjectives?

Adjectives are not precise; lawyers, above all, want to be precise writers. "Cold" is not precise. "Twelve degrees" is precise.

Lawyers tend to get hooked on adjectives because legal standards are filled with them. The "reasonable person" test or, in administrative law, the "substantial evidence" test. How much evidence is substantial evidence?

One reason judges create standards with adjectives in them is they are trying to keep things vague. That way they retain power to interpret the law.

If you want to be vague, you will use an adjective. If your verbs are strong and your nouns are good, you won't need a lot of adjectives.

In summary, what are the most important things lawyers can do to improve their writing?

Use the active voice.

Be clear and concise. Get rid of clutter. You want to convey the maximum amount of information in the fewest number of words.

Use shorter sentences. The more complicated something is, the shorter your sentences ought to be. That way it's easier to read.

Read good writers. Everyone tends to emulate what he or she reads, and lawyers are reading a lot of bad prose.

If you do only those four things, you'll be doing a lot to improve your writing.

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Reprinted with permission from Lawyers Weekly USA the National Newspaper for Prosperous Small-Firm Lawyers, February 26, 1996. $125 per year. For subscription information, call 1-800-451-9998, or e-mail Lawyers Weekly USA at comments@lweekly.com.

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