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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 Dozens of my former students have told me
fact. But most lawyers don’t realize it. When I that they had no idea how much writing they
teach legal writing seminars, I routinely ask the would be doing in practice. Many say, “It’s all I
participants, “How many of you are profession- do: write.” For example, in The Lawyer’s Guide to
al writers?” How many raise their hands? Writing Well, Goldstein and Lieberman estimate
Usually, about 20 percent. We lawyers simply that an average law firm publishes the equiva-
do not view ourselves as professional writers. lent of 20 newspapers daily. Tom Goldstein &
Yet we get paid to write all the time. 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 June 2003

Writing Well, 75 (U. Cal. Press 1989). And notice and complaints. And even fewer have courses
that I used the word “publishes.” That’s what in legal drafting. If law schools don’t cover the
you’re doing when you prepare and issue a subject, how would law students know the rel-
written document: publishing. If you’re in the evant sources? They wouldn’t and don’t;
business of publishing written documents, • Second, much of legal writing relies heavily
you’re a professional writer. on forms. If you copy a form, with minor
Professional writers take writing seriously, changes, there is little need to consult a writing
and lawyers should, too. Too often, though, guide because you won’t be changing the writ-
lawyers are so focused on getting the substan- ing in the form. Just re-create the document in
tive law right that professional writing takes a the same form that it was created before. Not
back seat. This article aims to show how to much room for writing improvement there, so
make professional writing as important as sub- not much need for writing sources;
stantive law. In this article, I’ll discuss five prin- • Third, lawyers are bright, successful people
ciples that professional writers live by and that whose writing skills are in the upper percentiles
lawyers can live by, too. As you read them, of writing skills nationwide. So lawyers don’t
think of yourself as someone who gets paid to think they need to consult writing sources be-
write: a professional writer. cause they can already write well. Or, at least,
they can write well enough. I call this the “good
PRINCIPLE NUMBER ONE: USE WRITING enough” syndrome. “My writing is good
RESOURCES • Print journalists—who are un- enough, so why spend time studying writing or
doubtedly professional writers—have style trying to improve? I’m fine.”
manuals on their desks. Book editors—all of But isn’t a lot of legal writing just plain bad?
whom are writing professionals—have dictio- Yes. So how can lawyers say that they are good
naries and usage manuals handy. And technical writers? Well, I think that most lawyers proba-
writers of all sorts, from those who write corpo- bly are good writers, or at least above average.
rate newsletters, to those who write informative But lawyers happen to be in a profession that is
magazine articles, to those who publish instruc- writing-intensive; a profession that, unbe-
tion manuals—all of them would not presume knownst to its naive applicants, demands good
to work without access to guides, references, writing or even great writing. Journalists are
and writing sources. generally good writers, but everyone expects
But lawyers do it all the time. In fact, it’s the them to be; it’s part of the job. Grocers, for ex-
most common symptom of the failure to recog- ample, are generally not known to be good
nize that you are a professional writer: not con- writers, but everyone knows that great writing
sulting writing sources. Practitioners could is not expected of grocers. Lawyers, on the other
eliminate many mistakes if they would consult hand, often go into the profession unaware of
the right sources. But most lawyers don’t have how crucial good writing is to the field. So to
the right sources and many don’t know what make your writing better than “good enough,”
the right sources are. Why? It’s hard to say, but know and use writing sources. I can suggest
I’ll offer three reasons: some excellent books in two categories.
• First, legal writing is not emphasized in law
schools. Most law schools give scant time to Legal Writing References
legal analysis and persuasive writing. Most do These are books that you don’t read straight
not spend much if any time on letters, motions, through; they’re for looking things up. Keep
Legal Writing Principles 13

them near your desk and consult them every • If we are drafting a contract, we drag out a
time you have a question: form and duplicate it, not stopping to consider
• Bryan A. Garner, A Dictionary of Modern Legal if the details of this form are right for our trans-
Usage (Oxford U. Press, 2d ed. 1995); action; and
• Bryan A. Garner, The Redbook: A Manual on • If we are writing a letter, we make sure it
Legal Style (West Group 2002). sounds lawyerly, whether we are writing to a
client, to opposing counsel, or to a supervisor.
General Legal Writing Style Guides If you realize that you are one of the many who
Do read these books straight through; all of writes legal documents in a robot-like, un-
them are excellent guides to contemporary legal changing style, stop it. Think about your audi-
writing style: how to phrase clear sentences, ence and adapt. In legal writing, lawyers face a
how to eliminate legalistic tone, and how to broad and diverse range of audiences that fall
avoid common grammar and punctuation into two general categories—primary and sec-
problems: ondary—and into several specific types.
• Richard C. Wydick, Plain English for Lawyers
(Carolina Academic Press, 4th ed. 1998); Primary and Secondary Audiences
• Terri LeClercq, Expert Legal Writing (U. Tex. For every document you produce, there is a
Press 1995); primary audience and a secondary audience.
The primary audience is the audience to
• Tom Goldstein & Jethro K. Lieberman, The
whom the document is addressed. For letters,
Lawyer’s Guide to Writing Well (U. Cal. Press, 2d
it’s the intended recipient. For a discovery doc-
ed. 2002).
ument, it’s the opposing counsel. For a con-
So please think of yourself as a professional tract, it’s the other party or the other party’s
writer, because you are one. Remember that lawyer. The secondary audience is anyone else
professional writers stay up on their craft. And who might see the document. Typically, the
when professional writers have a question secondary audience is judge, jury, supervisor,
about punctuation, or word usage, or writing colleague, or client. Keeping the different audi-
style, they don’t guess. They look it up. You ences in mind will help you focus your writing
should, too. and strengthen it.

PRINCIPLE NUMBER TWO: ADAPT TO


The Variety of Audiences
YOUR AUDIENCE • I believe that the best
More important than the difference between
way to improve legal writing is to teach lawyers
the secondary and primary audiences is the
to focus more carefully on the audience: those
sheer number and variety of audiences that you
who must read what we write. Too often we
must consider when writing. Take litigation
lawyers churn out documents in a mindless,
practice, for example. Here are some typical lit-
rote fashion, without thinking much about the
igation documents and the possible audiences:
people who will have to read them:
Document Primary Audience Secondary Audience
• If we are writing a motion, we create a docu-
Complaint Trial judge and The opposing party,
ment that looks like a motion—or like all the
opposing counsel. your supervisor, your
other motions we’ve seen—and we do not client, and, if the case
much care whether it will be easy to read and were appealed, ap-
understand; 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
Legal Writing Principles 15

and abandon it if it won’t hurt your case. Ways there is still much a lawyer can learn. I offer here
of creating up-front summaries include: two pieces of general advice and several broad
• Summarizing the point of a letter in the first generalizations about legal-document design.
paragraph;
Read up on Document Design
• Stating the conclusion of a legal analysis first;
I have read several sources, and they
• Beginning a motion with a “bold synopsis.” changed the way I create legal documents. Here
(See Wayne Schiess, The Bold Synopsis: A Way to are two I recommend:
Improve Your Motions, 63 Tex. B.J. 1030 (Dec. • Robin Williams, The Non-Designer’s Design
2000)); and Book: Design and Typographic Principles for the
• Framing the issue up front in a trial brief. Visual Novice (Peachpit Press 1994). This simple
and entertaining book introduces four simple
To Be Concise, Be Organized principles of professional document design:
But making information accessible means contrast, repetition, alignment, and proximity;
more than putting a summary up front. It • Bryan A. Garner, Legal Writing in Plain En-
means organizing the text at the large scale and glish: A Text with Exercises 121-134 (U. Chi. Press
at the small scale. The general pointers are these: 2001). Read part four, Principles for Document
• Connect sentences to each other so that the Design.
writing flows smoothly; No one expects you to create a motion that
• Highlight or separate ideas that come in looks like an advertising industry newsletter.
parts—lists, for example—so that the reader can But knowing the basics can help you create doc-
easily distinguish the parts; uments that invite the reader in.
• Connect paragraphs so that they either build
Pay Attention to What You See
on each other or clearly introduce new topics;
As you read and review documents, or even
• Use headings to draw attention to the larger other written work, take notice of designs, lay-
parts of documents, like issues, sections, and outs, and formats you like. Then experiment
subsections, so the reader can quickly grasp with them. Master your word processor and
where you are going; and learn to create neat, clean documents that look
• Use clear and descriptive titles for docu- professionally designed. Keep in mind these
ments so that their purpose is obvious. general pointers for document design. The fol-
lowing pointers are general at best, but the over-
PRINCIPLE NUMBER FOUR: USE NEAT, riding goals are these:
PROFESSIONAL DOCUMENT DESIGN • • Make your document easy to read and use;
Most lawyers cannot afford to have their docu- and
ments professionally printed, but none of us are • Make it as sharp-looking as you can without
using typewriters, either. So take advantage of drawing unfavorable attention to the design.
modern word-processing and desktop-publish- The general techniques for accomplishing those
ing technologies that allow you to produce neat, goals are discussed below.
clean and well-designed documents. Entire
books could be and have been written on docu- Text Alignment
ment design, and though much of that advice Give the reader what he or she is most likely
has limited application to legal documents, to expect:
16 The Practical Lawyer June 2003

• Readers prefer left justification, with a should be at least 1 inch, and some recommend
ragged right margin, for letters, court docu- 1.25 inches to give documents a less dense feel.
ments, and contracts; In fact, some courts are now requiring docu-
• Readers generally do not prefer full justifica- ments to use 1.25-inch left and right margins.
tion for letters, court documents, and contracts. Many courts require documents to be dou-
(Full justification is appropriate for newsletters, ble-spaced. If so, you must comply. But other-
brochures, and books); and wise, consider giving up double spacing.
• Centered text, even for headings and sub- Instead, increase the font size and single space
headings, is falling out of favor. It is still fine to your text. You may also want to increase the
center the title of a document, but for headings, space between paragraphs if you single space
opt for the left margin. the text. For example, when I prepare legal doc-
uments, I use single-spaced, 13-point Times
Fonts New Roman type, with titles and main head-
You should know the difference between a ings in Arial bold.
serifed font and a sans-serif font:
• Times New Roman and CG Times are ser- Reader Aids
ifed fonts because the letters have the small ex- Contemporary litigation documents use:
tensions, or serifs, at the ends of the strokes;
• Headings, as used in this article;
• Arial is a sans-serif font because it has no
• Enumeration, like this: The important factors
serifs. (See the difference?)
are (1) the audience, (2) the document length,
And you should know that if you create an en-
and (3) the document’s purpose;
tire document—especially a long one—in a
sans-serif type, you will give it an informal or • Tabulation, like the bulleted items you are
“light” feel. For legal documents, a serifed font reading now;
is best—other than the advice to use a contrast- • Enumeration and tabulation together, like
ing font for the headings. Oh. And no this: The important factors are—
Courier—it harkens back to the 1. the audience,
early days of word processing, and
2. the document length, and
is just plain ugly to look at.
3. the document’s purpose.
Typefaces
As with varied fonts, varied typefaces can Within reason, contemporary legal docu-
help to make a document a little more readable: ments also make use of graphics, text
• For emphasis and for organizational aids (ti- boxes, and tables.
tles, headings, and subheadings), the trend is to
use Boldface, Italics, or Bold italics. Tabs and Indentation
• For emphasis and for organizational aids, Tab over the first line of paragraphs. Except
the trend is away from ALL-CAPS, LARGE AND in letters and e-mails, my general advice is to
SMALL CAPITALS, and underlining. avoid block-style paragraphs. Another useful
style feature:
White Space • Hanging indentations—in which the second
Top and bottom margins for legal docu- line of text aligns vertically with the first in-
ments should be 1 inch. Left and right margins 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 June 2003

and/or Reviled by judges and for- • Foregoing;


bidden by writing experts. • Above-captioned, above-mentioned, above-
Thomas R. Haggard, Legal referenced;
Drafting in a Nutshell 118,
121(West 1996). • Said, same, such (as adjectives).
therefor Archaic for “for that,” and See also Bryan A. Garner, A Dictionary of Modern
often confused with “there- Legal Usage, supra, at 366 (entry on “Forbidden
fore.” Words”).
holding Trial courts find facts and
and finding hold law. Appellate courts 6. Operate in Two Communication
rarely find anything. Modes: “Legal Writing” Mode and
case, decision, These are all different “Human Communication” Mode
opinion, things, but lawyers and Remember legal writing must not sound
judgment judges often use them inter- anything like speech. Ideally, your robot-like,
changeably. Don’t. Look dense, and highly stylized legal prose will be so
them up. Bryan A. Garner, different from your speech that no one will rec-
A Dictionary of Modern Legal ognize a human voice in your writing.
Usage, supra, 133, 251.
These writing-style points—or their oppo-
sites—should serve you well in practice if you
5. Hang on to Familiar,
Dusty, Legal-smelling Words want to distinguish your writing from the run-
Try to sound like a LAWYER. Better still, try of the-mill. If you want to sound like everyone
to sound like someone who is not a lawyer but else, forget them.
is trying to sound like a lawyer. And ignore my
Legal-Word Banishment Project. CONCLUSION • These five broad principles
In 1990, I established the Legal-Word Banish- apply across the board to nearly all legal docu-
ment Project, a nonprofit organization dedicat- ments. They reflect an underlying theme:
ed to banishing from all legal writing certain Lawyers are professional writers who ought to
stuffy, lawyers-only words. The Project (which take their writing seriously. I think most
is not real, by the way) has banished the follow- lawyers do take their writing seriously, so these
ing words (each of which also has other prob- principles reflect a second underlying theme:
lems besides being stuffy): Lawyers ought to know what it means to take
• Pursuant to; writing seriously, how much legal writing can
• Hereby, herein, hereinafter; 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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