Charlie Parker, Miles Davis, Joe Henderson, Lester Young. “Great lawyers” would probably not be the first thing that comes to your mind when you hear these names. These are all great jazz musicians famous for playing standards, but they could have also been lawyers. That’s because jazz standards and legal writing are really quite similar. They’re both vehicles for expression that channel creativity into a few common forms.
Jazz is an improvisational art form. At the beginning of each song or “tune,” as they’re called, jazz musicians typically play the “head” twice. The head is the recognizable melody from songs such as “I Got Rhythm,” “There Will Never Be Another You,” and “The Girl from Ipanema.” After the head, one of the musicians starts soloing, while the rest of the band continues to play in the background. These solos are not written down on any music paper. Instead of just reading solos, the musicians make them up on the spot. How do they this? Well, it’s not really as magical as it may seem. Each tune has a set of “chord changes,” which are the harmony that the band plays behind the soloist. Through studying or just by trial and error, the soloists know certain notes to play over each change in order to create a good solo. Since all jazz standards tend to have similar chord changes, through repetition, soloists usually develop an individual approach to playing the changes. They have their own bag of techniques that they unconsciously plug into the familiar changes of any new tune. In other words, soloists don’t make up their solos out of thin air every time they pick up their instruments.
What Does This Have to Do with Legal Writing?
Legal writing has its creative elements but is also firmly entrenched in the repetition of common forms. Like jazz soloists, lawyers don’t create their briefs, motions, closing statements, and other legal documents out of thin air. Each of these types of legal writing is a form that lawyers learn and alter to suit different cases.
Let’s talk about specifics:The Structure
Lawyers often use models for the structure of whatever they’re writing like jazz soloists start with the chord changes. Once they’ve learned a basic motion to dismiss, for example, they often use it as the structure for their next motion to dismiss. Not all motions to dismiss will be the same. You can’t just file the same motion in two entirely different cases, but often the overarching form will be very similar (lawyers have been known to file verbatim copies of others’ motions from similar cases).
You can use this technique in your legal writing assignment too, even if you’ve never written a court document before. Ask someone for one of their old appellate briefs, suppression motions, or whatever you’re assigned to write. Copy the main headers and then compare them against the local rules to make sure you’re addressing everything. You won’t be able to copy every header because some headers will be irrelevant to your case, but notice how those headers are written. They typically state a conclusion and a reason for that conclusion. Use this format in your own headers. Also, notice the introductory material that sets out what you’re writing, what you’re asking the court to do, the reasons why the court should comply with your request, and the roadmap for your motion or brief. Your introductory material won’t be the same, but you can use these forms in your own writing. Now, you can begin to write your arguments.
The argument, like the jazz solo, is where lawyers become a bit more creative by stating something original within the confines of the CRAC format. But even here, lawyers can start with the law from previous motions and insert it into the “R” section where appropriate. If a lawyer frequently litigates the same type of case, then he’ll end up writing a lot of the same type of motion and repeating a lot of the same law.
You can use this technique as well, but here’s where you need to be careful: it’s best to start with a sample that’s as close to what you’re writing as possible. Pay close attention to the jurisdiction that the sample is from. If you’re writing a suppression motion in the Second Circuit, then a Fifth Circuit suppression motion isn’t going to be all that helpful since you’ll probably have to find all new Second Circuit cases. Even more importantly though, you need to make sure that the law that you’re using is correct. Even if the person who wrote the sample is your professor, the law could have changed slightly since it was written, the law could be slightly different for your facts, or there could be some errors. Always make sure that you check the sample’s work by reading the cases and ensuring that you have the correct law.
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Other helpful Legal Writing posts:
- Four Legal Writing Tips from the Theater
- Embrace The Difference of Legal Writing
- 5 Tips for a Great Legal Writing Assignment
- Podcast Episode 11: Legal Writing 101
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