The purpose of legal writing is to assist professional readers (PR) charged with making time-sensitive decisions about serious legal matters. As a law student, your PR’s include law professors, tutors, teaching assistants, bar graders, and potential employers – readers charged with making decisions about your admission to the legal profession. As an attorney, your PR’s include clients, employers, supervisors, colleagues, opposing counsel, and judges – readers charged with making timely decisions that profoundly impact the lives of real people. When tasked with determining whether a writer’s work product meets predetermined levels of professional quality, PR’s rely on internalized templates operating on both conscious and subconscious levels. This post identifies 5 qualities considered by busy PR’s when holistically assessing or grading the quality of a written legal instrument.
1. Macro Artistry: Thoughts have Shapes, Sizes, & Proportions
The outward appearance of your document is the first fact to capture your PR’s attention. “A picture is worth a thousand words” because the human mind uses pictures, metaphors, and other electro-chemical derivatives of stimulated senses to determine the world. Words are always a distant runner-up to images.
Good legal writing has a shape, a size. Balanced proportions. On its face, the contours of your memo, brief, letter, and every other assigned legal instrument must conform to the professional expectations modeled in law school and actual practice. From a distance, your outline should be visible based on headers, sub-headers, and paragraphs signifying theoretically appropriate ratios of black letter law to the writer’s observations and reasoning. Deviations from accepted forms of indentation, spacing, framework, emphasis, and other macro-visual facets are distracting and deflating to all PR’s.
2. Precision: Legal Communication is Surgical
Webster’s defines precision as “the quality, condition, or fact of being exact and accurate.” Legal assignments demand theoretical and factual precision because the resolution of legal conflicts requires objectively precise theoretical and factual presentations and determinations by involved professionals. Imprecision in any profession causes harm. An attorney’s words, like the hands of a surgeon or calculations of an accountant, should not shake with indeterminacy. Legal disputes are commonly decided by resolving the definition of a single word. Accordingly, examiner, employer, client, and court instructions must be followed precisely. Key contestable Issues must be identified precisely. Your vocabulary (data base of words) and diction (art of selecting words) must be deployed precisely. Precise legal arguments make incisions, thread needles, and close wounds.
3. Muscularity: Strength Requires Density
Paragraphs: The function of a paragraph is to add muscle to an argument by framing, developing, and supporting the writer’s thesis. Like muscles, paragraphs can be underdeveloped (puny), overdeveloped (bulky), or dense (defined). To a PR, a one-page paragraph foreshadows redundancy, extraneous points, a dearth of skill, and a lack of empathy for the reader while 6 or more paragraphs jammed into a single page promises a useless list of undeveloped and disrespectful conclusions. A successful legal instrument balances somewhere in the middle.
Sentences: A sentence answers the question, “Who is doing what to whom?” Diction is the art of selecting from your vocabulary the most precise words to fill in these blanks. The act of placing subjects, verbs, and direct objects within the same sentence creates gravitational tension between actors and action, time and space, forming clusters of new images for the reader. The stuff of poetry. The greater the tension of the proposed relationship of nouns and verbs, the more powerful the image. Consider the images evoked by sentences employing concrete nouns and active verbs:
“San Franciscans awoke to a dark red morning on September 9, 2020.”
“McDonald’s failed to warn customers it serves scalding hot coffee.”
But note the challenge of forming images from the following sentences employing abstract nouns and “to be” and passive verbs:
“Defendant’s negligence was the reason for plaintiff’s injuries”
“The mitigation of Don’s causation could be offset by Pat’s damage claim.”
If the tension in a writer’s sentences becomes too relaxed due to high levels of abstraction, generalization, and attenuation, the language can collapse under the weight of the reading. Choose your words wisely.
4. Thoughtflow: Conjunctions, Transitional Adverbs, and Other Road Signs for Tired Readers
Leave a trail of breadcrumbs for your PR. Signal words serve as guideposts for the objectives and functions of your communication, like a GPS. The following illustrates functions and relationships identified through signal words:
|Fusion||Identity; Definitions; Addition Similarity; Comparison||is, and, shall, will, when|
|Fission||Contrast; Distinction; Selection||but, neither/nor, either/or|
|Causation||Actual; Proximate||because, but for, so, when|
|Time||Chronology; Concurrence||at, on, during, meanwhile|
|Space||Location||at, in, under, over|
although, though, even though
The absence of signal words at best requires your reader to work harder. At worst, prompts your reader to give up. Signage matters.
5. Attorneys Practice with People’s Lives
Attorneys get involved when things go terribly wrong. Death. Injury. Divorce. Crime. Levies. Evictions. We help real people with real problems. Practicing attorneys write for crowds of people: anxious clients, cranky supervisors, opposing parties, acrimonious counsel, and neutral judges, all with thoughts, feelings, and objectives requiring accommodation. The human element is ever present in practice.
Unfortunately, the hypothetical and clinical fact patterns used in legal exams hide the humanity of what we do, prompting some law students and bar candidates to draft dispassionate, abstract, and ambivalent arguments divorced from the human condition.
You avoid this trap by pretending every assigned hypothetical is a real life conflict and acknowledge to the best of your ability the concerns and feelings of your audience. By putting yourself in the shoes of each party and imagining arguments favorable to each position, you are more likely to incorporate all of the provided facts. By thinking about the case from the judge’s perspective, you are more likely to synthesize the conflicting arguments for the good of the group.
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