The Antitrust Attorney Blog
Author: Jarod Bona
Great lawyers must write well. But what does that mean? I could give you a list of what you should or shouldn’t do as a legal writer. I think that you might find such an article useful regardless of your skill level because the best writers always strive to improve and the worst writers, well, they need a lot of guidance.
I might write that article one day. But not today. I thought we’d try to go a little deeper than that today.
If you want technical advice, it isn’t hard to find. I highly recommend Bryan Garner’s seminars. I’ve attended many over the years and they are inspirational. And I mean that; I’m not just trying to sound overly cool by telling you how writing seminars inspire me. But he is a great writer turned great speaker who really cares about the written word and you leave the course thinking not only about your writing, but about bettering your writing. You can check out his many books here.
I also recommend Ross Guberman and Legal Writing Pro. I attended his seminar as a young(er) attorney and appreciated how he utilized great legal writers as exemplars of how to write briefs. You might also enjoy his blog on legal writing.
I was lucky to have clerked in Minneapolis for Judge James B. Loken of the Federal Court of Appeals for the Eighth Circuit. Early in our clerkship, he explained to us that he is a professional writer. At first I was surprised to hear that because I thought of novelists, journalists and others as professional writers, but not judges. But he was write; I mean right.
The appellate judge communicates through writing. Indeed, every official act is a written one. To act effectively, the judge must write well. Clarity, persuasiveness, organization, and plain old storytelling must find their way into the judge’s opinions.
Lawyers have the same responsibility. We are professional writers. My legal career has included both an appellate practice and a writing-heavy litigation and antitrust focus. That is, in my early career in the big cases, I typically found myself in the writing roles, which is not an accident. So I have spent a lot of time pondering the theoretics of legal writing (or at least what makes it good or bad).
Writing has a technical component that matters. You can improve your writing by learning what to do and what to avoid. That takes conscious practice. Attend the seminars; read the articles about writing; then think about what you learned when you write. Also, read good writing.
Everything you write has an audience and a purpose. Do not forget either one as you craft each and every sentence. The purpose of legal writing is usually to persuade, but think deeply and thoroughly about that purpose. For example, you write a motion to dismiss brief or opposition brief to persuade a judge to either dismiss or not dismiss a complaint.
But whether you are the plaintiff or defendant, you want to educate the judge about the law, facts, and your client should the case go forward. If the case doesn’t go forward, you know that the appellate court may read your brief. If it is a high-profile case, the press might read it, the reporting of which could affect your client’s business.
You are telling your client’s story. A case to a lawyer that has had a thousand of them may not seem like a big deal. But it is a big deal to your client, who probably feels wronged in some way. And as attorneys, we have a duty to not only represent the legal system, but to help it function. Besides assuring our clients of great representation, we must satisfy them that we effectively told their story in whatever legal context is appropriate. People care deeply about telling their story. Nothing is more frustrating than losing and feeling like you didn’t express yourself beforehand.
This is true from the largest corporate clients to the prisoner appeals that many people reflexively assume have no merit. Indeed, with the prisoner appeals, for example, your brief is their best opportunity to tell the world that they feel mistreated. You are their outlet to the world outside their locked walls. That is an important feature and opportunity that our legal system provides. And we as lawyers have a responsibility to tell that story with everything we have.
Rhythm matters. We aren’t poets, but legal writing is a form of literature (ask Judge Richard Posner) and the sounds and cadences of the words matter to a reader. It is something that is usually below consciousness, but it may determine whether the writing flows or doesn’t. Excessive passive voice destroys that flow.
Your readers read more than law. Over the years, more senior attorneys have challenged my writing at times because it didn’t always “sound” or “look” like formal stuffy legal writing. They didn’t criticize it for its lack of stuffiness directly, but they often presented an example of a fictional old stuffy judge that is “used” to a certain style. Do they really think that judges are mere automatons that only decide cases? That some of the most educated lawyers in the world don’t read good writing? That they don’t read literature or The Economist, or The Wall Street Journal (a personal favorite), or The New York Review of Books, or anything other than the drivel that most lawyers offer them?
Here’s a secret: They do. And they appreciate good writing. It is refreshing. You don’t have to back into every argument with the passive voice to help them get into “judge” mode. Just get to the point, tell a good story, and write clearly and persuasively.
If your writing doesn’t look like typical legal writing (and it isn’t in crayon or something weird like that), you might gain an advantage. But write well, not just differently.
Think about your core theory. For me, a core theory drives every piece of writing (and every case, for that matter). The core theory is the point that you seek to convey. Communicating that core theory is usually your primary purpose. You should consider how every word, phrase, paragraph, and argument serves or harms the core theory. If you don’t have a core theory, that will be obvious to the reader because the writing will meander and seem disjointed. Your introduction is your opportunity to “introduce” your core theory in the most direct way. Don’t blow it. (Those that took Professor David Rosenberg’s Litigation courses at Harvard Law are certainly familiar with this idea–it sticks, many years later).
Writing is fun. Legal writing has a reputation for rigidity. And I suppose we have to cite authority for what we say, so there are some limitations. But I think that most lawyers imagine barriers that aren’t there. This starts in law school where they do their best to shake out any sense of writing style that you have left and replace it with 100-word sentences that start with “Whether.”
Ignore that and try to exercise some freedom when you write. Understand limitations that actually exist (like word limits, for example), but then just write like you are trying to convey an idea to a human being in a way that is interesting. You are a professional writer. Take some pride and joy in that.
As for me, I certainly enjoy writing. But I understand that I have far to go before I can be a great writer. Sometimes I will read a great writer and see a sentence that is just so: The words are perfectly placed; the sounds are just right; and the jumble of letters magically create an image, an emotion, or an idea. I appreciate it then wish that I could do that myself.
In the meantime, I will just keep writing.