From the June 2003 issue of

ALI-ABA's The Practical Lawyer

The Five Principles

of Legal Writing

Wayne Schiess

Any lawyer can improve his or

her writing—and probably needs to.

LAWYERS ARE professional writers. That’s a
fact. But most lawyers don’t realize it. When I
teach legal writing seminars, I routinely ask the
participants, “How many of you are profession-
al writers?” How many raise their hands?
Usually, about 20 percent. We lawyers simply
do not view ourselves as professional writers.
Yet we get paid to write all the time.
Dozens of my former students have told me
that they had no idea how much writing they
would be doing in practice. Many say, “It’s all I
do: write.” For example, in The Lawyer’s Guide to
Writing Well, Goldstein and Lieberman estimate
that an average law firm publishes the equiva-
lent of 20 newspapers daily. Tom Goldstein &
Jethro K. Lieberman, The Lawyer’s Guide to

Wayne Schiess is a lecturer in legal writing at The University of Texas School of Law. He is author of Writing for the Legal
Audience, and is associate editor of Scribes Journal of Legal Writing.

11
12 The Practical Lawyer
Writing Well, 75 (U. Cal. Press 1989). And notice
that I used the word “publishes.” That’s what
you’re doing when you prepare and issue a
written document: publishing. If you’re in the
business of publishing written documents,
you’re a professional writer.
Professional writers take writing seriously,
and lawyers should, too. Too often, though,
lawyers are so focused on getting the substan-
tive law right that professional writing takes a
back seat. This article aims to show how to
make professional writing as important as sub-
stantive law. In this article, I’ll discuss five prin-
ciples that professional writers live by and that
lawyers can live by, too. As you read them,
think of yourself as someone who gets paid to
write: a professional writer.
PRINCIPLE NUMBER ONE: USE WRITING
RESOURCES • Print journalists—who are un-
doubtedly professional writers—have style
manuals on their desks. Book editors—all of
whom are writing professionals—have dictio-
naries and usage manuals handy. And technical
writers of all sorts, from those who write corpo-
rate newsletters, to those who write informative
magazine articles, to those who publish instruc-
tion manuals—all of them would not presume
to work without access to guides, references,
and writing sources.
But lawyers do it all the time. In fact, it’s the
most common symptom of the failure to recog-
nize that you are a professional writer: not con-
sulting writing sources. Practitioners could
eliminate many mistakes if they would consult
the right sources. But most lawyers don’t have
the right sources and many don’t know what
the right sources are. Why? It’s hard to say, but
I’ll offer three reasons:
• First, legal writing is not emphasized in law
schools. Most law schools give scant time to
legal analysis and persuasive writing. Most do
not spend much if any time on letters, motions,
June 2003
and complaints. And even fewer have courses
in legal drafting. If law schools don’t cover the
subject, how would law students know the rel-
evant sources? They wouldn’t and don’t;
• Second, much of legal writing relies heavily
on forms. If you copy a form, with minor
changes, there is little need to consult a writing
guide because you won’t be changing the writ-
ing in the form. Just re-create the document in
the same form that it was created before. Not
much room for writing improvement there, so
not much need for writing sources;
• Third, lawyers are bright, successful people
whose writing skills are in the upper percentiles
of writing skills nationwide. So lawyers don’t
think they need to consult writing sources be-
cause they can already write well. Or, at least,
they can write well enough. I call this the “good
enough” syndrome. “My writing is good
enough, so why spend time studying writing or
trying to improve? I’m fine.”
But isn’t a lot of legal writing just plain bad?
Yes. So how can lawyers say that they are good
writers? Well, I think that most lawyers proba-
bly are good writers, or at least above average.
But lawyers happen to be in a profession that is
writing-intensive; a profession that, unbe-
knownst to its naive applicants, demands good
writing or even great writing. Journalists are
generally good writers, but everyone expects
them to be; it’s part of the job. Grocers, for ex-
ample, are generally not known to be good
writers, but everyone knows that great writing
is not expected of grocers. Lawyers, on the other
hand, often go into the profession unaware of
how crucial good writing is to the field. So to
make your writing better than “good enough,”
know and use writing sources. I can suggest
some excellent books in two categories.
Legal Writing References
These are books that you don’t read straight
through; they’re for looking things up. Keep

them near your desk and consult them every
time you have a question:
• Bryan A. Garner, A Dictionary of Modern Legal
Usage (Oxford U. Press, 2d ed. 1995);
• Bryan A. Garner, The Redbook: A Manual on
Legal Style (West Group 2002).
General Legal Writing Style Guides
Do read these books straight through; all of
them are excellent guides to contemporary legal
writing style: how to phrase clear sentences,
how to eliminate legalistic tone, and how to
avoid common grammar and punctuation
problems:
• Richard C. Wydick, Plain English for Lawyers
(Carolina Academic Press, 4th ed. 1998);
• Terri LeClercq, Expert Legal Writing (U. Tex.
Press 1995);
• Tom Goldstein & Jethro K. Lieberman, The
Lawyer’s Guide to Writing Well (U. Cal. Press, 2d
ed. 2002).
So please think of yourself as a professional
writer, because you are one. Remember that
professional writers stay up on their craft. And
when professional writers have a question
about punctuation, or word usage, or writing
style, they don’t guess. They look it up. You
should, too.
PRINCIPLE NUMBER TWO: ADAPT TO
YOUR AUDIENCE • I believe that the best
way to improve legal writing is to teach lawyers
to focus more carefully on the audience: those
who must read what we write. Too often we
lawyers churn out documents in a mindless,
rote fashion, without thinking much about the
people who will have to read them:
• If we are writing a motion, we create a docu-
ment that looks like a motion—or like all the
other motions we’ve seen—and we do not
much care whether it will be easy to read and
understand;
Legal Writing Principles 13
• If we are drafting a contract, we drag out a
form and duplicate it, not stopping to consider
if the details of this form are right for our trans-
action; and
• If we are writing a letter, we make sure it
sounds lawyerly, whether we are writing to a
client, to opposing counsel, or to a supervisor.
If you realize that you are one of the many who
writes legal documents in a robot-like, un-
changing style, stop it. Think about your audi-
ence and adapt. In legal writing, lawyers face a
broad and diverse range of audiences that fall
into two general categories—primary and sec-
ondary—and into several specific types.
Primary and Secondary Audiences
For every document you produce, there is a
primary audience and a secondary audience.
The primary audience is the audience to
whom the document is addressed. For letters,
it’s the intended recipient. For a discovery doc-
ument, it’s the opposing counsel. For a con-
tract, it’s the other party or the other party’s
lawyer. The secondary audience is anyone else
who might see the document. Typically, the
secondary audience is judge, jury, supervisor,
colleague, or client. Keeping the different audi-
ences in mind will help you focus your writing
and strengthen it.
The Variety of Audiences
More important than the difference between
the secondary and primary audiences is the
sheer number and variety of audiences that you
must consider when writing. Take litigation
practice, for example. Here are some typical lit-
igation documents and the possible audiences:
Document Primary Audience Secondary Audience
Complaint Trial judge and The opposing party,
opposing counsel. your supervisor, your
client, and, if the case
were appealed, ap-
pellate judges.
14 The Practical Lawyer June 2003

Document Primary Audience Secondary Audience you the time and the freedom to produce top
Demand Opposing counsel Your supervisor, written work.
letter your client, the trial
But you must remember this: Until you have
judge, and the jury.
seniority, you should conform to your boss’s ex-
Interroga- Opposing counsel The trial judge, the
pectations. No matter how unenlightened you
tories opposing party, op-
posing counsel. think your boss’s approach is, your job and
Mediation Mediator Your supervisor,
your relationship with your boss are para-
statement your client. mount, within the bounds of professional, ethi-
Trial brief Trial judge The opposing coun- cal representation of clients. When dealing with
sel, your supervisor, a boss who wants it done “the old way,” you
your client, your col- should heed the writing coach who advised
league (who receives writing expert Ken Bresler: “I teach legal writ-
the file and rewrites ing. I don’t run an outplacement service. Write
your brief or writes a
how they want you to write.” Ken Bresler,
separate brief on a
related topic).
Pursuant to Partners’ Directive, I Learned to
Obfuscate, 7 Scribes J. Leg. Writing (1998-2000).
Not only are there a lot of possible audiences to
be aware of in legal writing, but the traits of the PRINCIPLE NUMBER THREE: MAKE IN-
audiences vary tremendously. Judges and op- FORMATION ACCESSIBLE • In any piece of
posing counsel generally have high levels of ed- writing, you ought to make the important infor-
ucation and familiarity with law and legal prac- mation as easy to get as possible because a
tice. A client, on the other hand might be in- client’s rights, a client’s money, or a client’s free-
house counsel with a J.D. and an M.B.A., or an dom could be on the line. The critical point of a
immigrant farm worker with an eighth-grade document should be so placed that the reader
education. Juries, too, will vary widely in their gets it, and quickly.
education and experience.
Get to the Point
Writing for the Boss Where is that place? Up front. Writing expert
But perhaps the most important audience is Joe Kimble believes that this is one of the
the attorney you work for at your law office. biggest flaws in all of legal writing: the failure to
Unless you are the attorney in charge of a pro- get the important information in front of the
ject, your boss is an audience that will have a reader right away, the failure to put it right up
huge impact on your life as a legal writer. Will front. See Joseph Kimble, First Things First: The
you have the autonomy to write as you wish, or Lost Art of Summarizing, 38 Ct. Rev. 30, 30
will you have to run everything by your boss? (Summer 2001). It’s one of the most common
Will your boss give you concrete feedback on complaints of judges, too. “Get to the point,”
your writing, or secretly hand your document they say, over and over. “Tell me what you want
to another lawyer to be rewritten? as expeditiously as possible.” So I recommend
Most important, does your boss view that every piece of analytical writing have a
lawyers as professional writers or as form-mod- summary up front unless a rule requires some-
ifying machines? If you’re lucky, you work for thing else. Of course it may be that widely ac-
someone who cares about good writing and cepted tradition dictates something other than a
about audience expectations, and who gives summary up front. If so, question that tradition

and abandon it if it won’t hurt your case. Ways
of creating up-front summaries include:
• Summarizing the point of a letter in the first
paragraph;
• Stating the conclusion of a legal analysis first;
• Beginning a motion with a “bold synopsis.”
(See Wayne Schiess, The Bold Synopsis: A Way to
Improve Your Motions, 63 Tex. B.J. 1030 (Dec.
2000)); and
• Framing the issue up front in a trial brief.
To Be Concise, Be Organized
But making information accessible means
more than putting a summary up front. It
means organizing the text at the large scale and
at the small scale. The general pointers are these:
• Connect sentences to each other so that the
writing flows smoothly;
• Highlight or separate ideas that come in
parts—lists, for example—so that the reader can
easily distinguish the parts;
• Connect paragraphs so that they either build
on each other or clearly introduce new topics;
• Use headings to draw attention to the larger
parts of documents, like issues, sections, and
subsections, so the reader can quickly grasp
where you are going; and
• Use clear and descriptive titles for docu-
ments so that their purpose is obvious.
PRINCIPLE NUMBER FOUR: USE NEAT,
PROFESSIONAL DOCUMENT DESIGN •
Most lawyers cannot afford to have their docu-
ments professionally printed, but none of us are
using typewriters, either. So take advantage of
modern word-processing and desktop-publish-
ing technologies that allow you to produce neat,
clean and well-designed documents. Entire
books could be and have been written on docu-
ment design, and though much of that advice
has limited application to legal documents,
Legal Writing Principles 15
there is still much a lawyer can learn. I offer here
two pieces of general advice and several broad
generalizations about legal-document design.
Read up on Document Design
I have read several sources, and they
changed the way I create legal documents. Here
are two I recommend:
• Robin Williams, The Non-Designer’s Design
Book: Design and Typographic Principles for the
Visual Novice (Peachpit Press 1994). This simple
and entertaining book introduces four simple
principles of professional document design:
contrast, repetition, alignment, and proximity;
• Bryan A. Garner, Legal Writing in Plain En-
glish: A Text with Exercises 121-134 (U. Chi. Press
2001). Read part four, Principles for Document
Design.
No one expects you to create a motion that
looks like an advertising industry newsletter.
But knowing the basics can help you create doc-
uments that invite the reader in.
Pay Attention to What You See
As you read and review documents, or even
other written work, take notice of designs, lay-
outs, and formats you like. Then experiment
with them. Master your word processor and
learn to create neat, clean documents that look
professionally designed. Keep in mind these
general pointers for document design. The fol-
lowing pointers are general at best, but the over-
riding goals are these:
• Make your document easy to read and use;
and
• Make it as sharp-looking as you can without
drawing unfavorable attention to the design.
The general techniques for accomplishing those
goals are discussed below.
Text Alignment
Give the reader what he or she is most likely
to expect:
16 The Practical Lawyer
• Readers prefer left justification, with a
ragged right margin, for letters, court docu-
ments, and contracts;
• Readers generally do not prefer full justifica-
tion for letters, court documents, and contracts.
(Full justification is appropriate for newsletters,
brochures, and books); and
• Centered text, even for headings and sub-
headings, is falling out of favor. It is still fine to
center the title of a document, but for headings,
opt for the left margin.
Fonts
You should know the difference between a
serifed font and a sans-serif font:
• Times New Roman and CG Times are ser-
ifed fonts because the letters have the small ex-
tensions, or serifs, at the ends of the strokes;
• Arial is a sans-serif font because it has no
serifs. (See the difference?)
And you should know that if you create an en-
tire document—especially a long one—in a
sans-serif type, you will give it an informal or
“light” feel. For legal documents, a serifed font
is best—other than the advice to use a contrast-
ing font for the headings. Oh. And no
Courier—it harkens back to the
early days of word processing, and
is just plain ugly to look at.
Typefaces
As with varied fonts, varied typefaces can
help to make a document a little more readable:
• For emphasis and for organizational aids (ti-
tles, headings, and subheadings), the trend is to
use Boldface, Italics, or Bold italics.
• For emphasis and for organizational aids,
the trend is away from ALL-CAPS, LARGE AND
SMALL CAPITALS, and underlining.
White Space
Top and bottom margins for legal docu-
ments should be 1 inch. Left and right margins
June 2003
should be at least 1 inch, and some recommend
1.25 inches to give documents a less dense feel.
In fact, some courts are now requiring docu-
ments to use 1.25-inch left and right margins.
Many courts require documents to be dou-
ble-spaced. If so, you must comply. But other-
wise, consider giving up double spacing.
Instead, increase the font size and single space
your text. You may also want to increase the
space between paragraphs if you single space
the text. For example, when I prepare legal doc-
uments, I use single-spaced, 13-point Times
New Roman type, with titles and main head-
ings in Arial bold.
Reader Aids
Contemporary litigation documents use:
• Headings, as used in this article;
• Enumeration, like this: The important factors
are (1) the audience, (2) the document length,
and (3) the document’s purpose;
• Tabulation, like the bulleted items you are
reading now;
• Enumeration and tabulation together, like
this: The important factors are—
1. the audience,
2. the document length, and
3. the document’s purpose.
Within reason, contemporary legal docu-
ments also make use of graphics, text
boxes, and tables.
Tabs and Indentation
Tab over the first line of paragraphs. Except
in letters and e-mails, my general advice is to
avoid block-style paragraphs. Another useful
style feature:
• Hanging indentations—in which the second
line of text aligns vertically with the first in-
dented line—can ease reading and draw at-
 Legal Writing Principles 17

tention to important material. This bullet enter into a settlement settle

uses hanging indentations. All the other bul- be in violation of violate
lets in this article do not.
provide indemnification for indemnify
These design principles are fairly rough and
true and correct correct
have been presented quickly. They may not
make or break your case, but they will make by and between by
your documents easier to read and pleasant to in and for for
look at. Those are worth something when the
reader is a busy judge or a hostile opposing at- 2. Act as If It Were 1952 or, Better Yet, 1852
torney. Some lawyers may want to go back even far-
ther—Elizabethan usage could make a come-
PRINCIPLE NUMBER FIVE: LEAN TO COL- back. For example, use these archaic phrases:
LOQUIALITY • What I mean by this is that too • To wit;
much legal writing is stuffy, overformal, and
• Comes now;
downright pompous. Quit it. Wherever you
can, you should cut fluff, Latin, old-fashioned • Wherefore, premises considered;
words, and useless jargon. • Further affiant sayeth not.
But let’s be clear. “Colloquiality,” according
to legal-writing expert Bryan Garner, does not 3. Write in Latin
mean substandard usages; rather, it means “a After all, you’ve had so much training in it.
conversational style.” Bryan A. Garner, A Besides, it really impresses people who have no
Dictionary of Modern Legal Usage, supra, at 171. legal training. For example, use these Latin
In other words, don’t think of written legal lan- phrases:
guage as so vastly different from spoken • A fortiori;
English. In fact, if you want to write clear lucid
• Arguendo;
prose, you’d be better to write it as if you were
speaking it and then polish it for the appropri- • De minimis;
ate level of formality. To help you abandon • Inter alia;
overformality and lean to colloquiality, I offer • Sub judice.
six sarcastic rules to write by.
4. If You Don’t Know Whether
1. Never Use a Short Word a Word Is Still Acceptable, Guess
Where a Long Word Will Do Suffice Or ask a colleague. Or rely on what you recall
Never use a simple statement where it ap- from eighth-grade grammar or college English.
pears that one of substantially greater complex- Whatever you do, don’t look up these words:
ity will achieve comparable goals. D. Robert
Words Comment
White, The Official Lawyer’s Handbook 179
(Simon & Shuster 1983). For example: shall The most widely misused
word in all of legal vocabu-
Use Instead of
lary. Joseph Kimble, The
prior to before Many Misuses of Shall, 3
during the course of during Scribes J. Legal Writing 61,
subsequent to after 61 (1992).
18 The Practical Lawyer
and/or Reviled by judges and for-
bidden by writing experts.
Thomas R. Haggard, Legal
Drafting in a Nutshell 118,
121(West 1996).
therefor Archaic for “for that,” and
often confused with “there-
fore.”
holding Trial courts find facts and
and finding hold law. Appellate courts
rarely find anything.
case, decision, These are all different
opinion, things, but lawyers and
judgment judges often use them inter-
changeably. Don’t. Look
them up. Bryan A. Garner,
A Dictionary of Modern Legal
Usage, supra, 133, 251.
5. Hang on to Familiar,
Dusty, Legal-smelling Words
Try to sound like a LAWYER. Better still, try
to sound like someone who is not a lawyer but
is trying to sound like a lawyer. And ignore my
Legal-Word Banishment Project.
In 1990, I established the Legal-Word Banish-
ment Project, a nonprofit organization dedicat-
ed to banishing from all legal writing certain
stuffy, lawyers-only words. The Project (which
is not real, by the way) has banished the follow-
ing words (each of which also has other prob-
lems besides being stuffy):
• Pursuant to;
• Hereby, herein, hereinafter;
June 2003
• Foregoing;
• Above-captioned, above-mentioned, above-
referenced;
• Said, same, such (as adjectives).
See also Bryan A. Garner, A Dictionary of Modern
Legal Usage, supra, at 366 (entry on “Forbidden
Words”).
6. Operate in Two Communication
Modes: “Legal Writing” Mode and
“Human Communication” Mode
Remember legal writing must not sound
anything like speech. Ideally, your robot-like,
dense, and highly stylized legal prose will be so
different from your speech that no one will rec-
ognize a human voice in your writing.
These writing-style points—or their oppo-
sites—should serve you well in practice if you
want to distinguish your writing from the run-
of the-mill. If you want to sound like everyone
else, forget them.
CONCLUSION • These five broad principles
apply across the board to nearly all legal docu-
ments. They reflect an underlying theme:
Lawyers are professional writers who ought to
take their writing seriously. I think most
lawyers do take their writing seriously, so these
principles reflect a second underlying theme:
Lawyers ought to know what it means to take
writing seriously, how much legal writing can
be improved, and what great writing really is.
 Legal Writing Principles 19

PRACTICE CHECKLIST FOR

The Five Principles of Legal Writing

Almost ever lawyer is a professional technical writer. Although every specialty has its own language
in the law, there are five principles that can yield better results for all legal writing.

• The first principle is to use writing sources. Legal writing references and style guides include:

__ Bryan A. Garner, A Dictionary of Modern Legal Usage (Oxford U. Press, 2d ed. 1995);

__ Bryan A. Garner, The Redbook: A Manual on Legal Style (West Group 2002);

__ Richard C. Wydick, Plain English for Lawyers (Carolina Academic Press, 4th ed. 1998);

__ Terri LeClercq, Expert Legal Writing (U. Tex. Press 1995); and

__ Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well (U. Cal. Press, 2d ed.
2002).

• The second principle is to adapt to your audience:

__ For every document you produce, there is a primary audience and a secondary audience. The pri-
mary audience is the audience to whom the document is addressed. For letters, it’s the intended
recipient. The secondary audience is anyone else who might see the document;

__ Audiences to consider include the client, your supervisor, your colleagues (who receive the file
and have to understand what’s going on, and what to do), the opposing party, opposing counsel,
a trial judge, a jury and, if the case were appealed, appellate judges.

• The third principle is to make information accessible. Put things up front. One of the biggest flaws
in all of legal writing is the failure to get the important information in front of the reader right away,
the failure to put it right up front. Ways of creating up-front summaries include:

__ Summarizing the point of a letter in the first paragraph;

__ Stating the conclusion of a legal analysis first;

__ Beginning a motion with a “bold synopsis”; and

__ Framing the issue up front in a trial brief.

• The fourth principle is to use neat, professional document design. Read up on document design,
and pay attention to things such as:

__ Text alignment;

__ Fonts;
20 The Practical Lawyer June 2003

__ Typefaces;

__ White space;

__ Reader aids such as headings and enumeration, graphics, text boxes, and the like; and

__ Tabs and Indentation.

• The fifth principle is to lean to colloquiality. The “six sarcastic rules to write by” include:

__ 1. Never use a short word where a long word will do suffice;

__ 2. Act as if it were 1952 or, better yet, 1852;

__ 3. Write in Latin;

__ 4. If you don’t know whether a word is still acceptable, guess;

__ 5. Hang on to familiar, dusty, legal-smelling words; and

__ 6. Operate in two communication modes: “legal writing” mode and “human communication”
mode.

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