Tips for Young Lawyers: Legal Writing

TOP 10 WRITING TIPS FOR LAWYERS

By: Matthew C. Perushek

I initially titled this Top 10 Writing Tips for Young Lawyers. Truthfully, young lawyers are frequently better writers than their more seasoned colleagues. With that said, all lawyers’ writing can use improvement (or at least refining).

This list is by no means exhaustive. Its target audience is trial lawyers and litigators. These tips were developed as a result of my time reading and writing pleadings, first as a law clerk for Judge Michael F. Devine and later as an attorney. They are best applied to the courts in Northern Virginia.

1) Know your court.

This is unquestionably the most important rule to follow. It’s also something that you have likely heard at other CLEs or when speaking with judges. But what does it mean?

To begin, you must—and I mean MUST—know the local rules of your court. The Fairfax Circuit Court’s most recent manual exceeds 400 pages. It contains the court’s procedures, and it will likely answer any procedural question. You should reference the manual regularly to ensure you comply with court procedures.

Most people know some of the procedures, but are you confident you know them all? Fairfax’s five-page limit on briefs is notorious, but did you know that the limit applies to the motion and memorandum? Some attorneys attempt to circumvent the limit by arguing in their motion and then filing a five-page memorandum, so the manual provides that “the five-page limit noted above will include any substantive argument that is made in the motion itself, so that there is a total of five pages of argument for any two week motion.” The Fairfax Bar Association Fairfax Circuit Court Practice Manual E4.02 (2018).

It’s also important to have a general understanding of the composition of a court’s bench and docket. On any given Friday, one Fairfax judge may hear thirty to forty civil motions involving nearly as many different substantive issues. With that in mind, I try to keep every brief filed there as clear and direct as possible. The judge has hundreds of pages to read for each Friday, so I avoid inundating him or her with irrelevant facts. By way of comparison, a federal judge in the Eastern District of Virginia may hear only a handful of substantive civil motions on any given Friday. I frequently use more detail when filing briefs there.

After a judge is assigned to your motion, it is important to know that specific judge. We have over a dozen judges on the Fairfax Circuit Court; each has his or her own preferences and peculiarities. For example, retired-Justice Jane M. Roush once told me that she never understood why attorneys insisted on putting the standard for a demurrer in a pleading when she had ruled on probably thousands of them in the past. I admit that the idea of filing a brief without the legal standard is unsettling (not to mention that you do not know which judge you will draw when you file a brief); instead of omitting the standard entirely, I include it in one or two sentences. One judge in Fairfax dislikes long string cites; I have seen this judge ask an attorney to describe the facts of each case, implying that the cases were added to make the brief look better when they were not necessary.

Finally, you must always remember your audience. In Fairfax, the first audience is a law clerk who recently graduated from law school. Keep that in mind if your next motion involves a nuanced area of the law, and explain the concepts in clear and simple terms. In the Supreme Court of Virginia, the audience is two law clerks per justice with the benefit of the full record on appeal. More detail may be appropriate.

Knowing your court is a lot like grammar: when you do it right, it’s hardly noticed; when you do it wrong, it’s painfully obvious. Don’t be painfully obvious.

2) Write in the active voice.

Most writing resources suggest using an active voice. Strunk and White argue that “active voice is usually more direct and vigorous than the passive” because passive writing is “less direct, less bold, and less concise.” William Strunk, Jr., and E.B. White, The Elements of Style 18 (4th ed. 2000). Resources specific to legal writing agree.

With active voice, the subject acts on the object. “Defendant struck Plaintiff.” With passive voice, the object is acted upon by the subject. “Plaintiff was struck by Defendant.”

Strunk and White provide a good explanation of why writers should use active voice. In legal writing, the more concise nature of active writing is particularly important. Attorneys tend to say things with fifteen words when merely five would do. Passive voice encourages verbosity. Look at the example I provided above. The passive voice required two additional words to say the same thing as the active.

The problem is more obvious with a longer example. Consider the following:

Passive: The defendant was served with discovery by the plaintiff, and its responses were due twenty-one days later under the Rules. Objections were served on the plaintiff on the twenty-first day, but the substantive responses were not served by defendant until after. The responses were received by the plaintiff six weeks after serving discovery. (53 words.)

Active: The plaintiff served discovery on the defendant, and its responses were due twenty-one days later under the Rules. The defendant served objections on the twenty-first day but not substantive responses. The plaintiff received responses six weeks after serving discovery. (39 words.)

The active example cuts fourteen words, most of them filler words like “was,” “by,” and “were.” To me, the active example is more direct and therefore unquestionably easier to read. If it’s easier to read, it’s more persuasive.

Before we move on, I must point one thing out: sometimes passive voice is acceptable. You cannot avoid it at times. And there is nothing wrong with mixing in an occasional passive-voice sentence with active-voice sentences. But on balance, you should write in active voice.

3) Be direct.

There is perhaps nothing more infuriating than an indirect brief. I sometimes wonder if attorneys think they are paid by the word or page.

Good legal writing should be to the point. Why are you before the Court? What is the legal standard? Why should you win? It’s that simple. Judges have a lot on their plates, and it’s your job to focus them on the specific reason you are before the court. Never include irrelevant facts or argument.

Let me give you an example from a recent case:

[Defendant] is a Maryland physician founded and led corporation that provides certified emergency clinicians to staff hospital emergency departments at major hospitals throughout Virginia. Over the past 48 years, [Defendant] has grown to be the largest provider of emergency services in Virginia.

This made me chuckle. Why? Because this was the opening paragraph of a motion to quash a summons for debtor interrogatories. You are the largest provider of emergency services in Virginia? Congratulations! But how in the world does that impact whether a summons to answer debtor interrogatories should be quashed?

If you want good examples of direct writing, look no further than Steve Emmert, one of the best-known appellate attorneys in Virginia. I was shocked the first time I read one of his briefs filed in the Supreme Court of Virginia. It was about ten pages long and cited only a handful of cases. I have attended a CLE with retired-Chief Justice Cynthia D. Kinser, who similarly emphasized the point of clear and direct writing. Get. To. The. Point. That was the message. The justices have plenty to read, so only include what is essential to decide the issue.

One of the easiest ways to be direct is through the cases you cite in a brief. If one case stands for your proposition, cite just the one. Do not feel compelled to include a string cite of ten cases (and be wary of judges calling you on it, as noted above). In fact, when you cite a number of cases for one proposition, it suggests that the proposition is not as clear as you claim.

4) Use a consistent organizational format, including an issue statement.

Most law students learn a basic organizational system for writing, usually IRAC (Issue, Rule, Analysis, and Conclusion) or CREAC (Conclusion, Rule, Explanation of the rule, Analysis, Conclusion). Before my first internship, retired-Judge Stanley P. Klein taught a crash course on legal writing. He advocated for IBRAC (Issue, Background, Rule, Analysis, Conclusion). I continue to use a modified version of Judge Klein’s system when filing briefs with trial courts.

I frequently use an issue statement. We learned to use issue statements in law school, and for whatever reason, the use seemingly stopped there. I know they are frequently best suited for appellate briefs, but I find they can be helpful in briefs filed with trial courts, too. The late-Justice Antonin Scalia and Bryan Garner suggest using issue statements in their book, Making Your Case: The Art of Persuading Judges (2008).

The truth is that a good issue statement can get the court viewing a motion through your preferred lens. They should be argumentative, slanted towards that lens. And like all your writing, they should be direct.

In a recent medical malpractice case, the defense moved for leave to add an affirmative defense after I had designated experts. I faced a difficult uphill battle. Rule 1:8 states that leave to amend should be liberally granted, but there was a good reason why this case was exceptional. I wrote this issue: “Should this Court allow Defendants to add new affirmative defenses when they have known the factual basis for the defenses since before this case started?” The goal was that when the judge read the rest of the brief, he or she would pay particular attention to when the defense learned of the facts supporting the “new” defense. At the hearing, the first question the judge asked was “what did you know, and when did you know it?”

After the issue statement, my next section is Background. I prefer using the label “Background” because it frequently contains some facts and some procedure. Again, include only relevant facts and procedure.

Argument is the next section, which is a combination of the Rule and Analysis parts from the other systems. The Rule is really a statement of the controlling legal principle. With a demurrer, the Rule would be a statement of the elements of the underlying action. “To state a claim for negligence, the plaintiff must allege duty, breach, causation, and damages.” With a motion to compel, the Rule could be stated: “When a party fails to answer an interrogatory, the Court may compel a response. An evasive or incomplete answer is treated as a failure to answer.”

The Analysis is where you explain why you should win. When you apply the legal principles to your particular facts, what is the result? This is your opportunity to argue your case.

When I was a law clerk, one of my responsibilities was to write internal memos on motions. Judge Devine preferred when I front-loaded the law in my Analysis section (we called it Analysis in internal memos, as opposed to Argument). You front-load by putting all the applicable law in one place, right at the beginning of your Analysis/Argument, as opposed to scattered throughout the brief. The idea was that if the judge wanted to reference all the applicable law, he could easily find it in one place.

This organization has stuck with me as an attorney, and I believe it has served me well. I find it difficult to read a brief where the concept is broken up and scattered throughout. I should not first learn three pages into a five-page brief that the motion in question involves consideration of two factors. You should not introduce a relevant Supreme Court of Virginia case paragraphs after you have started applying the law to the facts of your case.

Here is the basic framework I follow:

State the legal principle (the Rule) first. It usually comes from a statute, a Rule of the Supreme Court of Virginia, or from a Supreme Court case. Then state Supreme Court cases where the legal principle has been discussed, analyzed, applied, etc. This lays the framework through which the court will decide the issue. You can then move on to a discussion of the facts of your case and why, applying the framework to your facts, you should win. This is where I usually cite other circuit court cases, as support that other courts are following the application I advocate.

The final section is Conclusion, which is where you ask for relief. We will discuss this in more detail below.

5) Tell your story chronologically, but do not include unnecessary dates as signposts.

In nearly every circumstance, the best way to tell a story is chronologically. There is plenty of research suggesting that many people think linearly, and I think this is especially true of attorneys and judges, who are frequently analytical, left-brain thinkers.

When you write the facts of your motion (my Background above), your best bet is to state the facts chronologically. You are not writing a screenplay, where flashbacks and other writing styles are used for dramatic emphasis. Chronologic facts help you stay direct and on point. The following example illustrates this:

This is a personal injury case. Plaintiff was driving her vehicle on the Beltway when Defendant side-swiped her at a high rate of speed. Plaintiff was taken to the emergency room, where an x-ray showed that her left arm was broken. Plaintiff was placed in a cast and later completed physical therapy. After six months, her arm was healed, and she does not have any ongoing issues.

Defendant now moves this Court for a Rule 4:10 examination. For the reasons stated below, Plaintiff opposes the motion.

I frequently see attorneys rely on dates when stating their facts, which reads robotic and less like a narrative. It’s a terrible writing crutch. Why include dates that are not relevant? Your Background, which should be persuasive, turns into a bullet-point-like list of items, rather than the story you are trying to tell. To return to our example above:

This is a personal injury case. On February 1, 2018, at approximately 10:00 a.m., Plaintiff was driving her vehicle on the Beltway when Defendant side-swiped her at a high rate of speed. On that same date, Plaintiff was taken to the emergency room, where an x-ray showed that her left arm was broken. Plaintiff was placed in a cast and completed physical therapy from February 6 to April 10, 2018. After six months—approximately August 2018— her arm was healed, and she does not have any ongoing issues as of the date of filing this motion.

On January 1, 2019, Defendant moved this Court for a Rule 4:10 examination. For the reasons stated below, Plaintiff opposes the motion.

The dates unquestionably distract from the story. Each time your reader encounters a new date, he or she stops and goes back to the other dates to try and understand the timing. It breaks up the flow, so why do it? The first example indicates where my argument will go: the plaintiff is now better, so there is no point in ordering a Rule 4:10 physical examination because it will not show anything.

I include dates only when they have legal relevance. Otherwise, they are best omitted.

6) Focus on your best argument.

Bad legal writing employs the “throw everything at the wall and see what sticks” strategy. Many attorneys argue every little point they can possibly think of. The problem, however, is larger than writing. Many attorneys—especially young ones—practice defensively, crippled by the fear of “missing” something.

As a lawyer, you are paid to make decisions. That’s the truth, plain and simple. When you try a case (or even argue a motion), you are faced with countless strategic and tactical decisions to make. Should you object to that evidence? Is that potential juror bad for me? Is the judge going to rule a certain way?

Step back. Take a breath. And remember this: you win some, and you lose some. You can make all the right arguments in a motion and still lose. And you can have a long-shot of winning an argument yet pull it out. The nature of our business is that we all lose sometimes. You cannot be so afraid of “losing” that you fail to make a decision.

As applied to writing, this means that you should find your best argument and focus on it. Accept the fact that the best argument could lose, but realize that it’s your best chance of winning.

Let me give you an example from a recent case. I have a case currently on appeal involving the defense’s motion for a mistrial. Lowe v. Cunningham, 268 Va. 268 (2004) sets forth the standard trial courts must follow when faced with such a motion: if the prejudicial question/testimony/comment is so overwhelming “such that it cannot be cured by a cautionary instruction,” then the trial court should grant a mistrial. If it does not reach that bar, the trial court should give a cautionary instruction that tells the jury to disregard what it just heard. The Lowe case sets forth some factors to consider when evaluating whether something is “overwhelmingly” prejudicial.

At trial, the defense moved for a mistrial, which was denied. They then objected to the wording of the cautionary instruction given by the trial court (which was, by the way, the traditional “disregard what just happened” instruction); instead, they asked for a complicated, argumentative instruction, which was denied by the court.

On appeal, the defense argues that the mistrial should have been granted and that their wording of the cautionary instruction should have been given. They argue in the alternative, of course. But the fact that they spend three pages arguing over the wording of the cautionary instruction—indeed, arguing that their instruction should have been given—takes away from their argument on the mistrial. How can the offending statement be so overwhelmingly prejudicial that a mistrial should have been granted when you argue forcefully for the wording of your cautionary instruction, which seemingly concedes that prejudice could have been cured with an instruction?

I have heard from more than one judge that the “throw everything at the wall” strategy is a big red flag that the party is not confident in their position. Rather, focus on your best argument.

7) Don’t be afraid of your opponent’s argument; instead, be ready to beat it.

You cannot shy away from your opponent’s argument. Like you, the other side gets to file a brief, so the court is going to know their position. You need to be ready to tackle their argument head on.

This is especially true when you are opposing a motion. The judge will have read the other side’s brief first, and they frequently turn to your brief wondering, “so why shouldn’t I grant this motion?” The other side’s brief may leave other lingering questions. You need to “clear the underbrush,” as Making Your Case calls it, by answering the judge’s lingering questions. This allows you to reframe the issue in your own terms.

With the requirements of Code § 8.01-271.1, no motion should be before the court unless both sides have good-faith arguments. So, every motion should involve two parties that each have at least one reason for winning. Your goal, then, is to convince the court why you should win while also convincing it why the other side should lose. If both sides only focus on why they should win, the court hears two good reasons and will pick which one it likes more. You want to give the court a reason to rule against the other side.

This does not mean, of course, that you should spend your entire brief on the other side’s argument. But instead, think about what questions are raised because of the other side’s argument, and then answer those questions. I have recently started to use rhetorical questions in my briefs because they literally give the court those lingering questions for the other side. In Number 4, I discussed the “what did you know, and when did you know it” question the court asked the other side. Guess where that exact question came from?

8) Your conclusion should state the specific relief you request.

Conclusions are frequently overlooked in briefs. When we first learn to write, we are taught to “tell them what you are going to tell them, tell them, and then tell them what you told them.” Law school seemingly disabuses us from this ritual, suggesting that an appropriate conclusion states, “For the reasons stated above, the Court should deny the motion.”

Judges do not need to be beat over the head (see the discussion of being direct above). Your conclusion should not be a page-long summary of what you have already said. But with that said, you must be specific about the relief you request. This is especially important if you are the moving party because the judge may look quickly back at your brief on the bench to clarify what you seek.

If you are asking the court to deny the motion, state it in your conclusion. If you are asking the court to deny the motion in part and grant it in part, state specifically the parts you want granted and denied in your conclusion. If you want the court to grant your motion and compel responses within fourteen days, state that.

Let me give you an example of how this can be effective. In a recent case, the defense objected to most of my discovery requests but then served responses. When a party objects and responds, it is problematic because I do not know whether the party is withholding anything pursuant to the objections. The defense confirmed that they were not withholding any responsive discovery pursuant to the objections. The objections should have been withdrawn, but the defense would not. I moved the Court to summarily overrule the objections. My conclusion asked the court to overrule the objections to a list of specific discovery requests.

At the hearing, the court, indicating it supported my argument, asked me, “what do you want me to do, go through each one of these individually?” I said it was not necessary. When producing my prepared order, I explained that it overruled each of the objections specified in my brief’s conclusion. The court happily entered my order, which allowed it to quickly resolve a discovery dispute, thanks in part to the fact that I had specified exactly what I wanted in my conclusion.

9) Find good resources and use them.

If you are still reading this outline, then the following will not surprise you: I tend to geek out with writing and have quite a few books on it. I once read that the key to writing well begins with reading lots of prose. This is certainly true, but there is no question that a good set of resources will help hone your skills.

The following is a list of books that I have found helpful:

– William Strunk, Jr., and E.B. White, The Elements of Style (4th ed. 2000). This is one of the first writing books I purchased, and I turn to it time and time again. In fact, as I was writing this outline, one of my firm’s partners saw it and said, “I see you’ve got your Strunk and White out again!” It was originally published decades ago, and it has been revised and edited a number of times. It has rules of usage, principles of composition, and comments on style.

– Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008). This book has sections on general persuasion, writing, and oral advocacy. Many of the tips are more applicable to appellate work, but I find it plenty helpful with trial writing.

– Patricia T. O’Conner, Woe is I: The Grammarphobe’s Guide to Better English in Plain English (3rd ed. 2009). This is an easy-to-read book dedicated to grammar. It is full of examples and focuses on common grammar mistakes.

– Lynne Truss, Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation (2006). As it sounds, this book is dedicated to punctuation and common mistakes made with it.

– Richard C. Wydick, Plain English for Lawyers (5th ed. 2005). This book focuses on writing directly, and it provides tips and tricks for writing in simple, persuasive terms.

– Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates (2d ed. 2014). This is an overall guide to persuasion and legal writing. It uses examples from real briefs filed by well-known attorneys, judges, and Supreme Court Justices.

– The Chicago Manual of Style (16th ed. 2010). This manual is dedicated to style and usage, and it should answer practically any question you may have about either. This is not specific to legal writing, though, so be careful about applying its suggestions.

10) Be flexible.

My last tip is that you should not be constrained by strict rules. Even the tips provided in this outline cannot be universally applied. There will be times when you must include many dates, do not need a background section, do not address your opponent’s argument, etc. This paper is a great example: I hardly use the first-person and try to reduce “be” verbs in legal writing, but there are plenty of both in this paper because it is more conversational. Before you write anything, you must think about what you need, which will necessarily vary depending on the case, court, or issue.

Here’s the bottom line: be flexible. It leads to better writing.