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Legal Writing Tips

Basics

  1. Omit needless words.  Ruthlessly.  See Strunk & White, The Elements of Style,  for details.
  2. Short sentences are better than long ones.  Always.
  3. There is a presumption that the first sentence in each paragraph should be the topic sentence.  Do not overcome this presumption without a reason.
  4. The passive voice should be avoided like the plague.  It should be avoided not because it is boring, although it is, but because in the passive voice verbs are used without a subject.  “A crime had been committed” lacks the punch of “The butler did it.”  Worse, the temptation to use the passive voice often means that you are not sure — or really don’t know — who did it.  Giving in to the temptation to obfuscate that you don’t know this important fact is bad.  On the other hand, noticing that you don’t know, making a point of finding out, and sharing the knowledge, can be quite good.
  5. Beware pronouns.  There is always a danger that your reader may not be clear about what “it” refers to or who “he” was.
  6. Think about logic flow.  You should be making an argument about something.  Most of the paper will be proof of pieces in your chain of argument.  You should be able to diagram the flow of your argument.
  7. A very serviceable paper structure has a first paragraph that announces your conclusions, followed by a “roadmap” paragraph that tells the reader what is coming.  Then you tell them.  A brief conclusion tells them you told them.

Style & Mechanics

  1. Can you imagine why anyone would allow herself more than one rhetorical question per 50 pages? Or even any at all?
  2. Any time you use find yourself using “latter” or “former” or “that” or “such” to refer to something discussed earlier, replace one of the former with an adjective, a noun, or an adjective phrase. Thus, for example, “the former issue” becomes “the clarity issue.”
  3. Try to make your writing much like your speech: simple, direct, unpretentious.
    1. Do not try to write like a court.  Judges write badly. So do most other legal writers
    2. However, avoid contractions (don’t use “don’t”), slang, and jokes–even if you talk that way.
    3. Never use pretentious legalisms such as “the case at bar” or “the instant case.”  Call it the Jones case.
    4. Avoid long words when short ones will do better. “Utilize” reeks.  Use “use.”
  4. Do not sell too hard.  Persuade; do not bludgeon.  Avoid violent adjectives.
  5. Have the courage to be dull if this is the price of being clear. If your ideas are interesting, they will carry the paper far better than a turn of phrase.
    1. Use the same word or phrase every time you mean the same thing.
    2. Use the same simple sentence structure (subject, verb, predicate) as often as you wish.
    3. Legal writing is technical writing.  Be suspicious of the fine phrase or the fancy word.  Especially the fancy word.
  6. Always be specific.  Instead of “in recent years” try, “since 1980.”
  7. Pick a tense and stick to it.  Do cases hold, or have they held? I do not care, so long as they only do one of those things.  Of course, you can use tenses to reinforce a temporal sequence: courts had held, developments ensued, reformers argue, the result will be.
  8. I am a great believer in the penultimate comma.  English teachers often are not, but I believe that technical writing–and believe me, legal writing is technical writing–needs all the help it can get.  A penultimate comma works like this: “The four factors that affect good writing are clarity, conviction, structure, and attention to detail and syntax.” The last item in this list is “attention to detail and syntax”; without the comma after “structure” it would be unclear whether the final clause, joined with an and, was one item or two (maybe the author cannot count and there are really five items on the list?).  The comma makes it clear.
  9. It’s means “it is.”  Its means “belonging to it.”
  10. Quote marks should only be used if you are quoting someone else, or in a definition or definition-like use (e.g. the paragraphs directly above and below this one).  Do not use them for sarcasm or for “emphasis.”
  11. You cannot use “id.” to refer to a note that has more than one source cited in it, as it is not clear to which source the “id.” refers.
  12. Never, never, never use “etc.”
  13. Judicious use of inset quotes is fine.  You probably should not use more than one every five or ten pages unless doing close textual analysis of a particular case, statute, or regulation, in which case it may be essential to quote it at greater length.  In general, it’s not a good idea to quote secondary sources at length unless you plan to beat up on them and want to assure the reader that the idiot really said that stuff in his own words.  Remember that the average reader SKIPS the inset quote–so you need to provide a little summary of it afterwards which will allow the article to make sense when read in this manner.
  14. I endorse (and recommend you follow) Lawrence Cunningham’s advice about Pedagogical Nomenclature.

Legal Argument

  1. Legal argument is made up of logic or evidence, of appeals to authority, and of arguments about policy.
  2. Assertions are not logic.  Logic is about proof of a proposition, or at least the dis-proof of the opposite.
  3. The judicious use of evidence requires a recognition of what it does not prove as well as what it tends to show.

  4.  Not all authority is of equal weight.
    1. A no-name is less persuasive as an authority than a major treatise by a famous author, or a decision by the Supreme Court.  Some lower court judges have a reputation that makes their decisions more significant; but most do not.  If you rely on Prof. Joe Schmoe as your main authority, do not trumpet Schmoe’s name throughout your text. Schmoes belong in footnotes.  Justices Brennan and Scalia belong in the text.
    2. Never rely on a secondary source (an article, a book), for the holding of a case or for any fact it reports.  Cite the case directly.  Read the case yourself. The alternative is malpractice.  And low grades too. That said, it is also fine to find, read, and cite to secondary sources such as journal articles for commentary on what the case says. Indeed, ordinarily you should be sure to cite to major articles in the field at least once in order to show you have read and considered them.
    3. The same rule applies to any official document that you discuss in your text — find, read, and cite to the original, not a secondary source, for what the document says. Of course, it is also fine to find, read, and cite to secondary sources such as journal articles for commentary on what the report says.
  5. Policy arguments are fine, sometimes great and wonderful, so long as the reader is clear as to what kind of argument you are making, and to what extent it reflects, comports with, or contradicts, existing law.

Details

  1. Be sure your paper has a title
  2. Number your pages
  3. Blue book your footnotes.
  4. If your software keeps putting footnotes on the wrong page, it’s probably Word
    1. Here’s what to do in Word 2000 and Word 2002
    2. Here’s the fix for Word 97
    3. Here’s the fix for Word versions 2.0, 2.0a, 2.0a-CD, 2.0b, 2.0c, 6.0, 6.0a, 6.0c & Word for the Mac
    4. Here’s another approach to the problem
    5. And here’s a new solution that should provide a permanent fix for the problem (and others too).
  5. Shepardize (or auto-cite) your cases.  Don’t be caught relying on outdated authorities.
  6. Please include your phone number and email address on the rough draft and final copy.  Be sure and make a copy in case mine meets with an accident.
  7. I do not give last-minute extensions.  I fail papers that are not turned in on time without a PRIOR agreement regarding a Temporary Incomplete (subject, always, to clemency for true medical emergencies and the like).

Good Advice

For good advice on everything from picking a topic to planning the next article, see Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998). See also Volokh’s page on academic legal writing and his book (an expanded version of the journal article), Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (2d ed.) [on reserve in the library] and Prof. Stephen Schnably’s advice on picking a topic and on writing a paper.

For a quick reminder of a few good rules of writing (almost as applicable to a law paper as to its ostensible topic, the e-mail), see David Silverman, How to Revise an Email So That People Will Read It. For a slightly longer treatment, with a lot of good advice to the beginning legal writer, see David Post Writing Guidelines: General Principles & Rules Of Thumb.

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Last modified: Jan 9, 2013.