No Legal Jabber: Get to the Point
by Doug McQuiston
In legal writing, we must always answer four questions simply, quickly, and powerfully. But this is not science—it’s art, or should be. To be persuasive, your motion, brief or other piece of writing must engage the reader. It must ring with the purity of common sense. It must reach out to the reader with color and life, regardless of the topic. In the end, it must move the reader to take the action you want them to, just because you have so moved them with the simple power of your writing.
All of this is easy to say. It is pain-fully difficult to do.
Who Are You?
Get to the point fast.
"Plaintiff Intertech makes computer switches at its plant in Broomfield. . . ." In one short, easy to read sentence, the judge now knows who you are and what you do.
Why Are You Here?
Once again, just plunge right in. None of that "Comes Now the Plaintiff. . ." noise. Lose the "on or about" dodge. Picture the judge sitting at the bench, an exasperated look bathing her otherwise classic features, peering down at you over her half-rim reading glasses, saying: "Counsel, exactly why are you here?"
Here’s just one example, something trial lawyers do all the time—a Motion to Compel:
"Plaintiff sent a set of Interrogatories to Defendant on July 1, 2003. It is now September 30, 2003. Defendant has not answered."
What Do You Want?
Like your dad, the judge knows you never write or call unless you want something. The sooner he knows what that is, the better you’ll both be. Be brief. The example below shows how:
"Defendant asks the Court for an Order compelling Plaintiff to fully answer the discovery by October 31, 2003, or face dismissal as a sanction under C.R.C.P. 37(d)."
Answer this question up front. Nothing dismays a judge more than having to hack through a dense jungle of type to try to pull out exactly what it is he is supposed to do for you. Tell him in the first paragraph or two and he’ll thank you for it.
Why Should I Give It to You?
Judges generally have three main objectives: to follow the law as they see it; to be fair; and to avoid being reversed.
These objectives shift constantly in importance. Some days, No. 3 is the big goal; other days it hardly matters. No. 2 seems to always ride near the front of the bus, but there is never a guarantee that the judge will always do what’s fair, especially if it is not also legal. However, the brief or motion that can hit on all three will win. Two out of three? You’ve got a shot. Just one? Maybe you better rethink your motion.
How do you find, then reveal, the "law" applicable to your case? Here’s a simple, but often overlooked, truth: Authority is authority because it is authoritative. Remember always that you are trying to persuade. Find the best case, even if it isn’t the newest. If you can’t find it, keep looking. If you find more than one, use the best one or two. Avoid string citations, those paragraph-long mule trains we see too much of. Authority isn’t weighed by the pound. Judges hate string citations. Opponents love them. Odds are one or two of those cases won’t say exactly what you claim. Your opponent will ram any inconsistency down your throat in their Response.
Here, as in everything, aggressive editing pays off. Budget your time so you have plenty left before your document is due. Write your brief or motion as a draft. Then, put it away for a day or so. Pick it up again, and try to cut it in half. Do it again. Remember what detective novel author Elmore Leonard said when someone once asked him how he wrote such tight stories: "I try to leave out the parts people skip." Cut it until it fits. This article is 995 words long. It started out as a 5,000-word text. You get the idea.
Over the last four months, we have discussed some ideas about persuasive writing. You have enthusiastically embraced these ideas, and have held your first in-house writing seminar, right? All the lawyers in your firm now know how to write well, right?
Of course, that’s like saying, "How hard can it be? Look at Tiger Woods! Just take the club and hit the little white ball into that hole over there."
The difference between Tiger and me, of course, has nothing to do with knowing that the little ball goes into the little hole. Nevertheless, as Tiger himself would tell you, practice pays. Good legal writing, (thankfully even more than good golf), can be learned.
It’s a lifelong commitment. Write for bar association publications, such as this one. We’re always begging for contributors. Writing for The Docket is not only fun, it will improve your legal writing. Nothing sharpens editing skills like trying to squeeze a 5,000 word piece into a 1,000-word hole in the magazine.
Whatever you do, take advantage of every opportunity to write better. Don’t take any document for granted, even if it is one you’ve done 100 times. Boilerplate may be easy, but is it persuasive? Any work product can be made better. As lawyers, we are professional writers, whether we know it or not. We write hundreds of pages a week. The more we strive to do it better, the better we serve our clients, our profession, and our own sense of satisfaction.