Writing to Win

The Legal Writer

By: Steven D. Stark

10 Unfortunate Characteristics of
Legal Writing
(Trials and Tribulations: Appealing Legal Humor by Robert
White)

Never use one word where ten will do.

Never use a small word where a big one will
suffice
Never use a simple statement where it appears
that one of substantially greater complexity will
achieve comparable goals.
Never use English where Latin, mutatis
mutandis, will do.
Qualify virtually everything.

Continuation..
Do not be embarrassed about repeating yourself. Do not
be embarrassed about repeating yourself.
Worry about the differences between which and that.
In pleadings and briefs, tat which is defensible should be
stated. That which is indefensible but you wish were true
should merely be suggested.
Never refer to your opponents argument; he only
makes assertions, and his assertions are always bald.
If a layperson can read a document from beginning to
end without falling asleep, it needs work.

Fundamentals of Legal Writing

I. ORGANIZING YOUR MATERIAL

You must have a clear idea of what

you're going to say before you begin
to write. The core of effective
communication and argument, at least
initially, is SIMPLIFICATION.
Outlining can help
In legal writing we should always lead with your
conclusions or a summary. By leading with your
conclusions as you write you give readers a similar set
of headnotes.

Four important reasons to lead

with your conclusions
Its more convincing
Its easier to read the first time
A hasty distracted reader can still
understand it.
A dim-witted reader will understand it too.

II. Organizing your workplace

1. Remember that most writing difficulties are
organizational difficulties.
2. Writing is something that most people do best
alone.
3. Turn off the internet.
4. Most writers need regular time to compose.
5. The person who does the research should do the
writing.
6. Dont divide the drafting of a document among
many writers.
7. Dont stop when youre stuck; instead stop when
you dont want to.
8. Keep a notebook and learn from other lawyers.

Importance of Basic Principles

Getting organized is the first step in writing.
Yet even lawyers who structure their material
well often find that their prose suffers from a
common set of problems.
The problem is almost always that the
sentences are too long, the prose too ornate,
the verbs too weak.

9 Key Rules of Legal Composition

1. Use strong verbs
2. Eliminate legal jargons
3. Write clearly and simply, while keeping things
as short as possible.
a. Eliminate redundancies
b. Substitute a word for a phrase
c. Avoid euphemisms
d. Eliminate unnecessary adjectives and
adverbs
e. Eliminate many transition words
f. Keep things short

4. Dont hedge. If you must hedge, explain why.

5. Keep your sentences to twenty-five words or less.
6. Move most subordinate clauses to the beginning
or ends of sentences.
7. Write for your readers, not for yourself.
8. Use specific imagery, not vague generalities.
9. Remember that understated prose is the best
form of expression.

10th Rule: Use Simple

Language
Your choice of words will make or break your
composition. To be sure, a careful writer always
strives for precision above all else. A legal writer
should always keep a dictionary and thesaurus
handy.

11th Rule: Use the Tools of the New

Age
How writing is formatted , however, is key to its
value.

7 Rules for providing Effective Outside

Editing:
an objective eye cant hurt

1.
2.
3.
4.

Separate the substantive edit from the copy edit.

Always be polite
Make writers aware of alternatives.
When more than one editor works on a document,
have a single editor convey all the criticism to the
writer.
5. Remove jargon from the document.
6. With important documents, use a fact-checker.
7. Remember that the goal of editors is to make writers
sound better but still sound like themselves.

The Art of Argument

3 Beginning Principles of Argument Writing
1. Facts often make the argument; arguments dont
often make the facts.
2. Be accurate
3. Dont overargue

Role of Narrative in
Argument
6 Rules of Strong Narrative
1. Think of yourself as a storyteller.
2. Write about people.
3. Remember that plot is overrated in the telling
ofa s tory.
4. Create word pictures that make the story come
alive.
5. The more specific the details, the better.
6. Use realistic dialogue that reveals character.

Note: You cant write your facts

until you know your arguments.
You dont need to draft the
argument section first, but you
should outline it in a page or
two.

15 Rules of Writing Facts in

Litigation
1. Always include a fact section.
2. Always distinguish between your statement of facts and your
statement of the case.
3. In your first paragraph of the fact section, tell your readers
what youre gong to tell them.
4. After your initial paragraph, lead with your strongest facts;
dont feel compelled to tell your story chronologically.
5. Deal with the facts against you.
6. Dont argue in your fact section.
7. Show, dont tell.
8. Use quotations to make your story come alive.

9. Each fact in your story must be there for a purpose.

10. Deal with your best facts only once in the fact
statement.
11. You can occasionally write about tjings that are
not in the record, as long as you can call attention to
that fact.
12. In a story without much plot, dont be afraid to
use topic headings.
13. Give judges only those facts they need to decide
the issues in the brief or memorandum you are
currently filing and divide them as necessary.
14. If youre in a jurisdiction where you must number

Writing Arguments
Remembering Six Initial Precept of Legal Argument
1. The lower you are in a court system, the shorter your
submissions will be.
2. In most cases, concentrate on winning the case, not on
helping the judge write the opinion.
3. Since a lawsuit is not a debate, dont make responding to
the other side the focus of your argument.
4. Keep your style understated and avoid military and sports
metaphors.
5. Keep your filings as short as possible, regardless of venue.
6. In the coming years, keep in mind the advantages of the
electronic age.

16 Rules of Writing Arguments

1. Lead with your best argument, though you must deal
with procedural issues first.
2. Use the CRAC method of argument: Conclusion, Rule,
Analysis, Cases.
3. Use the case law effectively.
4. Package your citations so they are at the ends of
sentences and the ends of paragraphs.
5. Avoid the tendency to respond too aggressively.
6. Never label or characterize your opponents.
7. Take a clear stand that can be summarized in two
sentences.

8. Be careful when you make arguments in the

alternative.
9. Limit the use of footnotes.
10. Start a new section every four pages or so.
11.

Always

view

your

case

from

the

judges

perspective.
12. Avoid humor and displays of literary acumen.
13. Use history as much as you can.
14. In complex or unusual cases, tell the judge what
youre doing and why youre doing it.
15. Do not use future tense.
16. Dont save anything for the final paragraph.

How to use the case law effectively

Avoid long descriptions of law
You rarely want to analyze a case for more than a
sentence.
Avoid asking the court to overrule precedent.
Short quotes from opinions are better than long
quotes, but no quotes are frequently better than
short ones.
Dont overload your argument with citations.
(except: if you are trying to show how a number
of other jurisdictions have endorsed the rule you
are invoking, cite other locales)
Adapt your citations to the court in which you are
arguing.

Writing the Introduction and

Headings
1. Always include an introduction of a
page or less.
2. Make your
persuasive.

headings

specific

and

Work Habits for Litigators

1. No briefs should be written by a committee.
2. Writers should do most of their own
research.
3. Be careful of Web research.
4. In office litigation divisions, separate the
writers from the speakers.
5. Always try to read a good brief in your
substantive area before writing one.

Writing Trial and Appellate Briefs, as

well as Affidavits
-Know your court, know your case6 Rules for Writing Better Trial Briefs
1. Keep things short.
2. Use judicial quotations more than in appellate
briefs, perhaps in an appendix.
3. Keep in mind the areas of the law in which the
facts are particularly critical.
4. If you are going to trial, try to give the judge a
short pre trial memorandum, whether one is
required or not.
5. When defending against summary judgment
motions, remember Vetters four rules.
6. In briefs before administrative panels, longer
filings may be appropriate.

10 ways to improve Appellate Briefs

1. It helps to have a new lawyer come in at the appellate
level to look at the issues raised below from a different
angle.
2. On appeal, dont write your facts by strictly relating
what the witness said at trial.
3. In your question presented section, clearly state
your position, be specific, and keep it short.
4. Make your summary of the argument a reformulation
of your argument headings.
5. Show respect for the lower court, even while
questioning its ruling.

6. It is usually better to appeal on narrow grounds

that on broad ones.
7. Tell the court whether the errors youre raising
were objected to below.
8. Arguing sufficiency of the evidence is often a loser.
9. In appealing criminal convictions, keep the courts
skepticism in mind.
10. In appealing administrative decisions, stress the
facts even more than usual.

Two suggestions for Improving Reply

Briefs and Amicus Briefs
1. Make your reply briefs short and
responsive.
2. With Amicus briefs, focus on what you
can argue thats new.

13 Rules of Complaint Writing

1. Do your research effectively.
2. Always begin with an introduction.
3. When describing the parties, dont be
afraid to include a fe relevant details.
4. Organize your facts so they are easy to
understand.
5. Dont be afraid to make your factual
allegations detailed.
6. Write in Anglo-Saxon English.
7.
Avoid
adjectives,
adverbs
and
subjective words.

 8. Use short sentences and paragraphs.

9. Use frequent argumentative headings, both in the
facts and in the causes of action.
10. Be specific about the relief you are seeking in
cases concerning injunctive or declaratory relief.
11. Avoid legal jargon.
12.If permitted, dont be afraid to attach a few
relevant documents to your complaint.
13. Think of the consequences if a judge converts a
dismissal motion into one for summary judgment.

Ten Tips for Writing in Discovery

1. Always include an introduction.
2. Try to assemble your questions in a logical
order.
3. Try not to use canned questions.
4. Be concise, using basic English when
possible.
5. Establish a simple vocabulary.
6. Establish a set of instructions for answering.

7. Use requests for admission freely, and when

doing so, include the converse of the admission as
the next submission.
8. Ask pertinent questions that will lead to the
discovery of admissible evidence.
9. When answering discovery questions, answer as
briefly as possible.
10. If you must object to a question or request,
make your objection as specific as possible.

14 Rules of Technical Writing: Making the

Incomprehensible easy to understand
1. Make sure you understand the material yourself
before you begin.
2. Start with the bottom line.
3. After the bottom line, tell your readers how you
intend to explain. Give them a written table of contents.
4. Frequently divide your material into sections.
5. At the beginning or end of every section, you may
want to summarize where youve been and tell the
reader where youre heading.

6. Number your points.

7. Use the second person.
8. Graphics are important.
9. Layout is important too.
10. Be conversational and stay away from terms of art.
11. Dont talk down to your readers.
12. Make the people or entities youre discussing
memorable.
13. Refer to common experiences or use narrative.
14. Dont be wedded to the essay format.

16 Rules of Writing E-mail

1.

As

always,

lead

with

your

conclusion,

rephrasing questions with your first sentence.

2. Keep it short: the presumption is 150 words or
less.
3. Write in Anglo-Saxon English.
4. Write in the second person.
5. Avoid formal salutations and sign-offs.
6. Forget the exclamation point!!!!!!
7. Play it straight.
8. Make sure your heading line summarizes the

9. Assume unknown readers.

10. Think before you send.
11. Because the internet has virtually obliterated the notions of
confidentiality and privilege, be careful about what you put in writing.
12. If youre writing anything privileged, confidential, inflammatory, or
contentious, put the names of the recipients into the To box last,
after everything has been checked and edited.
13. Beware the reply all button.
14. Avoid questionable phrases or sentences.
15. When you edit an e-mail, print it with no paragraphing befoe you
begin.
16. Dont overuse e-mail.

8 Rules of Letter Writing

1. Keep it short and lead with your conclusion.
2. Dont picka fight.
3. Be specific.
4. Each letter should stand on its own.
5. Stay away from jargon.
6. Design your letters so theyll be understood.
7. Be careful about what you put in writing.
8. Make sure an opinion letter lets the reader know
the complete basis for the opinion.

7 sections around which to organize

Memos
1. Question for research
2. The answer or conclusion
3. The written table of contents
4. The Facts
5. The Analysis
6. Future Questions for Research
7. Bibliography

Drafting Contracts and Rules: The

10 Basic Rules of Drafting
1. Use familiar words and short sentences.
2. Use the acti e voice and the present tense.
3. Try to use Anglo-Saxon words.
4. Dont use shall; use will or must.
45. Be careful how you use adjectives and adverbs.
6. Try not to put mental states or subjective
language into the contract.
7. Express the same ideas in the same way.
8. There is no need to say the parties agree.
9. Be concise.
10 . Avoid jargon.

Drafting Contracts and Rules:

11 Steps of Drafting
1. Do your basic research.
2. Ask specific legal questions.
3. Develop a blueprint for action.
4. Write a strong introduction.
5. Draft a detailed outline of the contract or law.
6. Write the document.
7. Compose the definitions.
8. Edit the document yourself initially.
9. Then, have at least two other lawyers and, if possible,
the client edit the document.
10. Try out some hypotheticals within the draft.
11. Do your final editing.

16 Rules of Professionalism in Legal

Writing
1. Never lie, under any circumstance.
2. Dont plagiarize.
3. Dont use euphemisms to disguise the
truth.
4. If its not required, hedging is a form
of dishonesty.
5. Avoid the use of hyperbole to distort
the truth of your assertions.
6. Ghostwriting is a form of dishonesty.
7. An affidavit should be the assertions
of the person who signs it.

Additional Rules in Litigation

9. Dont engage in personal attacks.
10. In a brief, you must deal with key unfavorable
facts and case law in that jurisdiction.
11. Dont argue or editorialize in your fact
statement.
12. Adjectives are usually not facts but opinions
about them, and they dont belong in your fact
statements. Show, dont tell.
13. Dont restate the other sides arguments or case
in a way that is unfair to what they argued.
14. Do not misstate the facts or the law.
15. Dont guess, if you are asked about something
and you dont know or unsure, say so.
16. Remember Rule 11: An attorney who