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Legal Writing Tips

  1. Picking a Topic
    This is the hardest part of writing a paper. A good student law paper will have the following characteristics:

    1. It will be about a very specific, defined topic. Students regularly come into my office with a ‘topic’ they want to write about that would take a three-volume treatise to cover properly (“Copyright on the Internet”). Or they have a genuine area of interest (“the Internet of Things” or “Big Data and privacy”) but haven’t drilled down to what single (one hopes, original) thing they want to say about it. Narrowing to a very specific topic is essential because even a very narrow topic can chew up time and pages and pages if you take it seriously.
    2. Even if the topic is popular, the author’s take on it will be novel. This requires a careful pre-emption check before you start writing. Lots of good ideas, including I assure you plenty of mine, turn out to be so good that someone, or several someones, have already written about it. At that point one must either (1) change topics, or (2) read all the existing potentially relevant writing to see whether one has something meaningful to add to it, or in quite rare cases (3) if there is an article that seems to be dominant and/or is by an important scholar, and it has an error or gap, writing to identify that problem may in some cases make sense.
    3. The article will make an argument about something, and have clear logic flow that is visible in an initial table of contents (the formal version of your outline). Everything that doesn’t contribute to proving the conclusion ought to be left on the cutting room floor. Of course, outlines can change as new ideas and discoveries (or even court decisions!) happen during the writing process, so no initial outline is ever set in stone. But it needs to exist as evidence that there is a writable project there.
  2. Writing 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 what you told them. I advise you to create a table of contents based on all your headings and subheads and look at it to see if it summarizes your argument. You may not want to include the table of contents into the final draft of a paper that is less than, say, 25 pages long, and if you do it likely will be less detailed, but it is still a useful drafting tool while you are writing the paper. And, if you have a complicated topic or argument, even a 15 page paper may benefit from a table of contents as long as it is not too long.  Basically, any paper over 10 pages could have one; I think by 25 pages you must include one.  Note that the able of contents you put in the paper should be less detailed than the one you made for yourself if you made one consisting of all the paragraphs’ topic sentences.
    8. The Introduction (I). A common error you may wish to avoid is setting out the legal background to your problem before telling the reader what the problem you are addressing may be. Not starting with the problem itself creates two literary problems. First, the reader needs to know why you’re telling him or her all this stuff in order to slog through it. Knowing the problem creates a motivated reader. Second, if you talk about the general sweep of the law first, then the facts, then your specific legal issue, you will end up repeating all the relevant law when you apply that specific law to the facts (and anything you do not repeat probably should not have been there in the first place). You will need to know the legal background before you set out to write (and thus it sometimes makes a lot of sense to write the general stuff and then set it aside!), but the reader gets to benefit from your work, and has it fed to him or her in bite-size chunks only exactly when needed and not before. So, unless you have a very very good reason you should probably start with the facts/issue/problem, then move straight to analysis, giving the legal rules and background as you go along. That way you only have to tell it once. (And thanks to your extensive footnotes, there will be no doubt as to the correctness of the authority on which you are relying…)
    9. The Introduction (II). I also advise you to avoid starting with a hypothetical problem that you think illustrates your issue (“Alice is walking home one evening when…”). Hypotheticals have their place, but that place is almost never the introduction because with them it usually takes far too long for the reader to learn what the article is about. (See also paragraph above about the motivated reader.) The introduction should summarize the issue as concisely as possible and also introduce your contribution to solving it.
      1. You only get one first impression. So put your strongest foot forward: Lead with your conclusions. We don’t care what the paper does: we care about your new idea, or the facts you have discovered.
      2. Consider these three introductions to a paper:
        • “This paper will survey whether lead is bad for children.”
        • “This paper will demonstrate that lead is bad for children.”
        • “Lead is bad for children.”
      3. The first is a (very) bad introduction – it doesn’t tell anything about the world, just about the paper — and the reader cares more about the world. The second is a better introduction. The third is the best introduction. It tells me what you are going to tell me and focuses on the world — and sets up the rest of the paper as the justification for the claim.
    10. Another common error, separate from the above, is driven by a need to set the scene in some very general way.
      1. Students writing about a specific topic (say, to make up an example, the effects of driverless cars on the car insurance market), often feel a need to go big in the intro, e.g. “As human being have continued to evolve so have our methods as well as our creations.” Or, “The advent of new technology inevitably brings with it new problems.”
        • PS. Avoid the word “advent” in a sentence with the word technology; leave it for references to the beginning of the Western liturgical year.
        • (Similarly, it is “advances in technology” not “advancements in technology.”)
      2. The problem with this intro is that human evolution most certainly isn’t the subject of the paper.
      3. It would be so much better just to lead off with a summary of your thesis. Go small. Knock it out of the park.
    11. The motivated reader is a happy reader. As a general matter, you should write to create and sustain a motivated reader. What I mean by this is that before you dump laws, legal analysis, or facts on your reader you should make sure that you’ve set it up so readers will have no doubt as to why they are being told all that stuff. As noted two paragraphs above, a key part of this work gets done in the introduction, but even if you wrote a perfect intro readers nonetheless must be treated as a forgetful sort. Worse, with the reader’s increasing reliance on Westlaw searches and the like, it’s entirely possible that your reader skipped the perfect intro and delved right into the middle. Thus the occasional mini-introduction for each section and (depending how many there are) sub-section will be in order. One might argue that the perfect topic sentence to many paragraphs not only telegraphs and summarizes what is to come but gives some indication of why it matters. Admittedly this is not always possible; and it could be taken to absurd and repetitive extremes that will just be repetitive. So don’t do the repetition thing.
  3. 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 find yourself using “latter” or “former” or “that” or “such” or (eek!) “said” or “aforementioned” to refer to something discussed earlier, replace one of the aforementioned 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. Eschew the “elegant variation” beloved by some English teachers. It simply has no place in all but the rarest legal writing: If you use a different phrase than in the previous sentence, paragraph, page, or even chapter, sharp lawyer-readers will immediately assume you mean something different. Do not create daylight for this erroneous assumption — unless of course you intend to mean something different, in which case it may make sense to define terms or underline the difference at or before first use.
      2. Use the same simple sentence structure (subject, verb, predicate) as often as you wish. Indeed, if you don’t feel the simple-sentence-structure wish most of the time, then I advise you to use that structure more often than 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 (AKA the “Oxford 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 in fact five items on the list?). The comma makes it clear.
    9. It’s means “it is.” Its means “belonging to it.”
      1. Incidentally, I used to clerk for a judge whose surname was Williams. He was adamant that the rule of possessive s’s for proper names works just like that of everyone else. Hence,
        1. The singular possessive is Williams’s NOT Williams’
        2. The plural possessive is Williams’
      2. I’ve adopted that as an iron-clad rule, even though Merriam Webster says, “For names that end in an s or z sound, though, you can either add -‘s or just an apostrophe. Going with -‘s is the more common choice.”So take the common choice!
      3. There is, I’m sorry to report, one small set of exceptions to this rule: “For classical and biblical names with two or more syllables ending in s or es, you usually just add an apostrophe. If the name is only one syllable, add -‘s.” Thus, Socrates’, Moses’, and Jesus’. Don’t ask me why, I don’t know.
      4. But what if the possession belongs to two people, such as a dog belonging jointly to Smith and Jones? Then it is “Smith and Jones’s dog. If they each had their own dog it would be “Smith’s dog and Jones’s dog.” Accord, Chicago Manual of Style (14th ed.). at page 356:“Closely linked nouns are considered a single unit in forming the possessive when the thing being ‘possessed’ is the same for both; only the second element takes the possessive form.”
    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,” or “and so on,” or their ilk.
    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 actually 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 advise you to write in a neutral voice. Do not address the reader. And you should not speak of the reader as “you” (this is a blog post, not a legal article).
      1. While legitimate opinions differ, I tend to think that legal articles usually read better if the author does not ever use the perpendicular pronoun. It’s not about you, I argue, but about your topic.
      2. That said, there certainly are cases that call for exceptions.
      3. And, there is also a respectable counter-argument which holds that “I” is not just appropriate but necessary, as it is wrong to pretend there is no author with views that motivate the text, and that therefore the occasional intrusion of the authorial “I” is permissible, especially when it makes for less convoluted writing. Thus, for example, some people prefer “In Part II I will show that….” to the, they say, falsely neutral omniscient “Part II shows that…”. Go ahead and take your choice, so long as the I’s don’t take over the paper. But be particularly suspicious of expressions of personal opinion, since this becomes an excuse to avoid citing evidence.
      4. Another answer to the personal pronoun question is to use “we,” as in “we will show”. Where 100 years ago this was normal, it’s now rather old-fashioned and even distracting — unless of course, your article has multiple authors.
    15. I endorse (and recommend you follow) Lawrence Cunningham’s advice about Pedagogical Nomenclature.
  4. 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 (including but not limited to statues, treaties and regulations) 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 document means.
    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.
    6. The basic rule for a legal paper is that you must provide authority – a footnote (yes, footnote not endnote!) – for every assertion of law and fact. The only thing that is your own are your conclusions. A maniacal attention to footnoting is actually quite healthy, as it will keep you honest. So often there are facts we all (or maybe just you?) are sure of, but for which you can’t find quality support. Those former facts don’t belong in your paper. As to the law, the standard to which you should aspire is that the judicial reader need do no more than look up what ever you cite — i.e., the reader need do no independent research to validate your claims about cases, statutes, regulations, treaties, and the like.
    7. Speaking of footnotes, I strongly recommend that you footnote as you write. It’s not necessary to bluebook a rough draft, but it is necessary to capture all the information needed to later bluebook the footnote at the time you first refer to an article — going back to dig up the publication date or authors’ names or that pin cite will almost certainly take longer than capturing that info the first time.
    8. Similarly, while the final draft should have proper supra and infra references, I tend to just copy the full cite when writing a draft (but adding the pin cite – nothing is harder to re-create later than a pin cite). That way, when I edit the article and cut some things and move other paragraphs around, I don’t lose track of my references, and they are less likely to get scrambled. Otherwise it is infuriating to find an “id.” in the penultimate draft for which one is no longer clear as to what it refers.
  5. Details
    1. Be sure your paper has a title
    2. Number your pages
    3. Bluebook your footnotes.
      1. Incidentally, the US rule is that footnotes go after punctuation, be it a period, comma, semicolon, or colon.  The only exception to this rule is that if you have a sentence with multiple footnotes in it, and the last one is for a quote at the end, you could write “text test text{fn}.” to make clear the note only goes to the quote at the end.
      2. I am surprised I need to say this but…
        1. there should be no space before a footnote; and,
        2. you cannot put two footnotes in a row right next to each other, whether or not there’s a space between them.  Either one note goes somewhere else (if the thing it supports is elsewhere), or you put both things in the same note. Generally, it is not a good idea to have long complicated footnotes (don’t do as I do, do as I say), but you can on occasion separate concepts into separate paragraphs in a legal footnote.
    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. 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. You should create a table of contents for any paper of any length. This helps the reader know how the paper is organized — and will help you solve organizational issues as you write.
      1. Note that if you are writing in MS Word, the best way to create a table of contents is to use the stylesheet to define each header and sub-header. Then you can insert a table of contents placeholder near the top of your document, and Word will automatically create the ToC for you — and update it every time you print the document or click the ‘update table’ box at the top of the ToC. The nice thing about this is that if you reorganize the paper the ToC will automatically be reorganized and re-numbered for you.
      2. If this talk of a stylesheet confuses you, search online for “Word [your version] how to create a table of contents” and you will find a plethora of instructions and/or videos to explain how it all works.
    7. Unless this is the sort of in-class writing project that relies on an AGN, please include your phone number and email address on the rough draft and final copy. In any case, Be sure and make a copy in case mine meets with an accident. You may also want to include a version number if I’ve had another version previously.
    8. 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).
    9. It may sound crazy, but a surprisingly large number of writing problems and careless mistakes can be avoided by reading your paper out loud to yourself just before you turn it in. Really.
  6. A Few Words About File Names
    1. Most of our students will spend at least some part of their careers working in large organizations where they share electronic documents. Students should get in the habit of giving their documents good file names. Thus “paper draft” is always bad–imagine if everyone calls their documents that! Some organizations have naming conventions, but if not, be sure the file name has three things: your surname (if the primary author, so you get the credit), something substantive (not “paper” or “motion” but “Jones-dismiss-motion” or whatever), and a version number.You usually do not need a date, the software will do that automatically.
    2. The estimable Charles Petit demurs:

      I continue to genially disagree with your advice “filenames don’t need a date, just a version number”. I’ve used the date AS the version nbereveral decades, because going across systems — or even just changing software (remember when the legal profession standardized on WordPerfect 5.1 for DOC?) — means that version numbers/tracking that rely on software are just as reliable as ICE estimates of the number of children separated from their families.

      Putting the date (or a date code) into the filename also helps when changing operating systems… and countries. Consider, for a moment, the problems facing a student who takes a job in Frankfurt and needs to refer back to his student work _in the body of a memo_. Just the punctuation issues will cause trouble!

      He has a point.

    3. For papers it’s probably a good idea to put your surname first, then a summary form of the paper title, and then the version number, as that way over the course of time all your submissions to your professor will be grouped together and easy to find.
    4. It is good a habit to avoid spaces in file names (use _) so that files translate well to UNIX systems if they ever touch one. Do not use any other odd non-alphanumeric characters as it can mess up some older file systems.
  7. Sources of Good Advice
    1. 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) (alternate link). See also his book (an expanded version of the journal article), Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (4th ed.) [on reserve in the library; parts of 3rd edition are online] 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.
    2. And finally, probably the only Nietzsche quote I like: “Those who know that they are profound strive for clarity. Those who would like to seem profound strive for obscurity.” [The Gay Science, 173.]

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