If your writing reads like a convoluted pile of legal mush, consider these common obstacles to clarity, and some solutions.

Problem 1: We haven’t clarified our thoughts yet.

It is so much easier to write clearly when before your first draft (and between drafts) you outline your points and order them logically. Show how they support your conclusions. Then, outline your opponents arguments to identify where they go wrong. Decide how to attack them.

Look at your outlines and determine whether your brief structure reflects the logic of your arguments and counterarguments. If it doesn’t, make sure there is good reason for the difference.

Problem 2: We are unwilling to ruthlessly edit our first drafts.

When writing the first draft, we are usually still clarifying our thoughts. As we express points for the first time, we are still discovering logical relationships among ideas. And often, our minds are hit with nuances that we did not consider before; so we take a first stab at addressing them.

All this happens rather haphazardly.

That’s why we should not fall in love with our first drafts. We must ruthlessly edit them. There is no reason to drag our reader through the chaotic history of our first thoughts.

Problem 3: We try to say too much in one sentence, clause, or phrase.

Stop overloading your reader’s attentional resources. As best you can, unpack complex ideas into bite-sized pieces. Delete unnecessary detail.

Problem 4: The reader doesn’t know the purpose of our writing.

Using strong introductions and topic sentences, tell your reader what information you are about to present and why. Otherwise, the relevance may not be obvious.

It is natural for the brain to disregard information until it seems relevant. Show it in advance. Or, by the time your reader understands the relevance, it may be too late.

Problem 5: We haven’t presented enough background.

Don’t assume your reader knows what you know. If there is relevant background that will help your reader understand your ideas, provide it.

But don’t go overboard. No need for a treatise.

Problem 6: We haven’t provided containers.

It is much easier for your reader to find information if it knows where to look. Use different sections to organize different topics, claims, arguments, etc. Use headings and previews to indicate what a section is about (and, by implication, what it isn’t about).

 

When I sit down to write and look at a blank page, at first, it is hard. This is true whether it’s an informal blog post or a brief to the Seventh Circuit Court of Appeals.

Most people feel this anxiety at the beginning—a little bit of nausea. Perhaps that is why even Supreme Court justices tend to have their law clerks write first drafts. Writing those first drafts seems inefficient and painful.

The Pain of Writing the First Draft

The pain arises from the constant chatter of the inner critic while we’re drafting, especially for those of us with a little bit of a perfectionist bent:

• A phrase doesn’t express what we are trying to say.
• Our thoughts aren’t coming out in the right order.
• Our writing seems disconnected.
• There are gaps in the argument, but we can’t quite put our fingers on them.
• The grammar is right, but the flow is wrong.
• Word choice? We are spending too much time flipping through the thesaurus.
• Etc.

Our thoughts and mental pictures move too quickly, and with much more nuance, than we can ever express in words. And it sickens us. Almost certainly, what seems brilliant in our minds—at least at first—will not show on the page.

From Struggle to the Polished Brief

But is the writing process merely a method to express the contents of our preexisting thoughts, in congealed, written form? No. The written page (or computer screen) will not merely mirror our unbaked thoughts. Nor should it.

Rather, the first draft will rightfully reflect the struggle of thoughts, working in unruly ways to understand (and express) significant ideas—ideas worth thinking and writing about.

And from that chaos, let’s see whether something emerges: a way of thinking about something that we hadn’t before. And only after that, let’s try to sculpt our masterpiece: evaluate, edit, refine, reorder, delete, add, and edit, again and again.

Former Justice John Paul Stevens had this answer when asked why he, unlike his colleagues (who thought it inefficient), wrote his own first drafts:

I think a judge learns more about a case if he has to put his thoughts down on paper. It helps you think through a case, and when you write it out yourself, you often learn things about the case that you hadn’t realized. It’s part of the learning process and decisional process that I think is really quite important.

Interviews with Supreme Court Justices, The Scribes Journal of Legal Writing 2010, p.42

Don’t expect your first draft to be the end product of your work — it is only the end product of some of your first thoughts.

It is with your second, third, and fourth thoughts (~drafts) that you’ll see it start to come together.

And if you do it right, your reader won’t suspect a thing.

To use a long quotation in your brief, you probably know that you have to “block” it; that is, instead of using quotation marks, you should use indented margins to set off the quote.

Check the style guides. The Bluebook (§ 5.1) says: use block text if the quotation exceeds 50 words. According to ALWD, also block any quote that runs more than four lines (Rule 47).

But before you use that long quotation—no matter how good you think it is—think twice.

As Kendall Gray of The Appellate Record writes, block quotes in your brief almost always waste time and space:

Today we have the ultimate legal writing tip if you want the court (or any other audience) to avoid reading large portions of your writing. This technique is so effective that, if properly used, I daresay you could drop an F-Bomb in the middle of a brief and the court would never notice.

Cuss in the middle of a block quote, and it is quite possible that no one will notice. Block quotes signal that there is no analysis here—so nothing worth reading. They tell the judge, “You don’t need to read this long quote; it will just bore you without helping you.”

Why is reading a block quote usually a waste of time? Consider that from the judge’s perspective, there are two possibilities: the lawyer is either a thoughtful advocate, or is not.

If I am a thoughtful advocate (in any sense), I will later summarize the key points and apply it to the facts of my case. Consequently, there is little point in reading the block quote itself.

If I am a poor advocate, the judge has little reason to read my brief anyway. Why? Because I am demonstrating an inability (or unwillingness) to do the work to help the judge think about the issues.

In either case, it seems I have only accomplished to waste space and test the judge’s patience. Or have I?

There are at least two reasonably good purposes for block quotations: (1) to quote statutory or contractual language, where the interpretation of the language itself is at issue, or (2) to provide important reference material, where (for whatever reason) we don’t want to inconvenience the judge to pull up the primary source. Kendall recognizes the soundness of the second purpose (such as where the brief writer is concerned that the judge won’t have a governing statute immediately at hand). Kendall, I imagine, would also agree with the first purpose.

Bottom line as I see it is this: if you use a block quote, make sure the judge has a reason to read it (e.g., to analyze it or easily refer to it). Otherwise, it is probably best to cut it out.

Welcome to Winning Brief Strategies!

Our focus on this blog is to help lawyers write better briefs, motions, contracts, and pleadings to better serve their clients. Also, I hope that other writers will find value here, because good legal writing must, first, be good writing. Finally, I want clients to gain a basic understanding of what constitutes good writing, so that they can better judge the quality of work they are getting from their lawyers.

Nobody is perfect, but let’s all strive to be better. I am looking forward to learning from everyone here.

Thank you for your patience, suggestions, and ideas as we launch this new blog. Please consider joining our RSS feed and email list, and visit frequently.

Tawfiq I. Ali
Principal Attorney
Ali Law Practice LLC