Writing to Win: The Legal Writer

Book by Stark Steven D

Chapter 1

Organizing Your Material

I. The Overview: Getting Started by

Leading with Your Conclusion

II. Organizing Your Workplace Around Seven Rules

1. Remember that most writing difficulties are organizational difficulties. 2. Writing is something that most people do best alone. 3. Most writers need a regular time to compose. 4. The person who does the research should do the writing. 5. Don't divide the drafting of a document among many writers. 6. Keep a notebook and learn from other lawyers. 7. Don't dictate anything important.

I. The Overview: Getting Started by Leading with Your Conclusion

For supposedly logical thinkers, lawyers often write surprisingly disorganized prose. Ask a lawyer what he or she intends to say, and you usually get a crisp, simple answer. Somehow, though, in the process of transferring that thought to writing, the clarity vanishes. Take this opening to a brief, filed in the U.S. Court of Appeals for the Fifth Circuit and cited in Tom Goldstein and Jethro Lieberman's The Lawyer's Guide to Writing Well:

Appellee initially filed a motion to strike appendices to brief for appellant on July 22, 1983. Appellant filed a brief in response, which appellee replied to. Appellant has subsequently filed another brief on this motion, Appellant's Reply to Appellant's Brief in Response to Appellee's Motion to Strike Appendices to Brief for Appellant (appellant's most recent brief), to which the appellee herein responds.

A large part of the problem here is the way lawyers organize and compose their material. Like everyone else, lawyers write in many ways. Some dictate off the top of their heads and then edit. Others ponder the matter for hours and draw up a lengthy outline. Still others discuss the issue with a colleague and try several lead sentences before finally hitting the screen or pad and dashing off a few paragraphs in a blaze of glory.

If a method works for you and you can't conceive of doing things any other way, stick with your habit. Tradition has it that Ernest Hemingway used to sharpen close to twenty pencils and then go for a walk before writing. That said, however, one method of organization has tended to work well for legal writers in the past.

First, you must have a clear idea of what you're going to say before you begin to write. Compare it to driving: If you're going to travel from New York to Washington and you get into the car without having figured out what route you're taking, you may still eventually arrive in Washington. The problem is that you may take your passengers to Albany or Providence before you finally get your bearings and head for Washington in the most direct fashion.

To get your direction straight, outlining can help. Yet not just any outline will do. Rather, before you sit down to write anything, whether it's a two-page letter or a thirty-page brief, you should ask: If you had to condense your message in two or three sentences, what would those sentences be? If the judge or reader stopped you on the street and said, "I only have about a half a minute, so who are you, what do you want, and why?" what would you say? Having figured out those two or three sentences, you're ready to write and something more. Those first few sentences should be the first paragraph of any document. In legal writing, we always lead with our conclusions.

Good lawyers do this all the time. Here's how one advocate appealing a criminal conviction began her brief (the names have been changed):

The State's entire case against Max Hugo turned on Trooper Dora Clayhorn's testimony about her success in disguising herself as a college student, entering the enclosed porch of appellant's home uninvited, proceeding into his living room, and there soliciting the sale of a quarter-gram of cocaine for only $25.00. That evidence was admitted only because the district court declined to suppress it as the fruit of an unlawful search, ruling that the New York police may target an individual and invite themselves to his residence for an undercover sting operation within the sanctity of his own home without a warrant and without any probable cause to believe either that appellant was selling drugs from his home or that he was even selling drugs at all.

Whether the government may roam at large in people's homes as freely as it did in this case is an issue of first impression in this Court.

Most lawyers find it terribly difficult to come up with an approximation of these initial sentences. After all, we're taught from day one in law school that nothing is black or white-everything is a shade of gray. "If you want to understand this, Your Honor," we seem to say, "please sit down for four hours while I explain to you every nuance, detail, and comma." There's no truth but the whole truth, or so we think. Moreover, the essence of an academic paper is to take a two-page idea and write about it for twenty-five pages. In law school, one way we are trained to write is like law professors composing law review articles. That's the genre, as the late Judge Harold Leventhal of the U.S. Court of Appeals for the D.C. Circuit once said, that spends thirty pages describing a problem you never knew existed and then spends fifty pages explaining why it will never be solved.

In contrast, in the real legal world, the core of effective communication and argument, at least initially, is simplification. Unless readers know right up front where you're heading and why, it's very difficult for them to follow a complicated explanation or argument, much less be convinced by it.

I understand lawyers' reluctance to commit themselves to those first few sentences. However, even though it seems difficult at first, anything can be condensed to such a summary. Take the recent U.S. Department of Justice antitrust action against Microsoft. It's complicated by many issues, and there's probably enough discovery in the case to fill hundreds of boxes. Still, if you were arguing that case for the government, you could try to boil it down to this issue: Can Microsoft use its near monopoly on one product, Windows, to force consumers to take another, integrated product they may not want?

Or take Herman Melville's Moby-Dick. Sure it's long, but essentially it's a novel about a group of sailors from Massachusetts who chase a giant white whale, eventually find it, and harpoon it while Captain Ahab gets chained to it. I know Melville would be terribly upset with such a condensation, yet even this one sentence gives us a rough sense of the novel.

What we're doing here is similar to what journalists are supposed to do when they apply the "pyramid style" to a story, leading with who, what, when, where, and why. Think of it as an upside-down triangle.