Your Most Important Tool:
EFFECTIVE LEGAL WRITING
I
INTRODUCTION
One of the major challenges for pro se litigants is effective communication with the court. Your legal
documents (legal writing) are your most effective tools to winning your case.
Effective legal writing requires you to consider your reader: The judge!
1. First, adopt the Right Tone. Tone can be defined as the underlying attitude we take towards the court,
your opponent and the opponent's arguments. This attitude isn't explicitly spelled out, but shows through
the fabric of our legal writings.
Tone comes in all varities---objective, respectful, or professional on the one hand; condescending, self-righteous,
or bitter on the other. An angry, defiant tone just doesn't work!! Don't do it!!!
2. Second, judges have too much to do and too little time in which to complete it. This means that judges are very
impatient readers. In fact, judges probably are about as impatient a group of readers as children.
Unlike children, judges are impatient; because, they have many other matters awaiting them; and, they
have no time to waste reading papers that are long, disorganized, rambling and unhelpful. The heavy volume of
paper work causes judges to look for immediate understanding of the relevant facts and the issues they are
to decide.
If they don't pretty immediately get this information, they will look somewhere other than you pleadings to get it.
Usually, that means they will look to your opponent's presentations.
Remember
3. The judge knows nothing about your case. So, your job is to inform the judge about the relevant facts of
your case and the law controlling those facts. The judge wants to know the nature of the case, the state of the
relevant facts, and the state of the controlling law. Your documents should sparkle with clarity, controlling facts
and controlling law. All of this should be well organized and easy to read and understand.
Therefore:
When you sit down to draft your pleadings, motions, memorandum and other legal documents; you, must deal
effectively with these important considerations.
Generally, If you follow the 7 principles listed below and discussed in more detail later, you will be well on
the road to winning your case.
1. Organize the Chaos and Provide Context.
2. Inform the Court about the relevant facts and the controlling law.
3. Simpler is Better. The Kiss Principle.
4. Give information in Smaller Chunks rather than in Larger Chunks.
5. Highlight Important Points or Facts.
6. Cut all Clutter.
7. Give an inescapable Conclusion based on your pleading, the controlling facts and established law
controlling those relevant facts.
II
THE 7 OVERARCHING PRINCIPLES
1. Organize the Chaos and Provide Clarity:
Use Heading and Sub-headings to Organize the document and give the court a Roadmap. The headings should tell
the court what to expect next. The headings should describe what follows them. You should liberally use headings
and sub-headings. Headings are most useful when they are declaratory statements, rather than a neutral heading.
2. Inform the Court about the relevant facts and the controlling law.
(a) First, start with an "INTRODUCTORY heading that gives the court the big picture perspective as it relates to
the particular motion or pleading.
(b) Second, give the "STATEMENT OF FACTS" heading where you give the court the facts relevant
to motion, etc.
(c) Third, give the "SUMMARY OF ARGUMENT" heading. Here you summerize your legal argument
showing why you should win under the facts and the law.
(d) Fourth, give your "ARGUMENT" Heading or "DISCUSSION" Heading. This where you cite the relevant
cases and their holdings controlling the facts in your "STATEMENT OF FACTS" section. Don't give opinions.
Give the controlling law as determined by the Constitution, the Supreme Court, etc. The court has taken an
oath to uphold the Constitution and the law. Therefore, you must give the court the controlling law that the
court has sworn to uphold.
(e) Fifth , give the conclusion based on your pleadings, the controlling facts and the controlling law.
If you have done your homework: The conclusion will be the "Inescapable Conclusion" based on the pleadings,
the facts and the law you have given the court.
INESCAPABLE CONCLUSION
In short: Clarity, organization, headings and the controlling facts and the controlling legal authorities guide
and control the court's response to your request. Always tailor you pleadings, motions, memorandums and
briefs to fit the law. The controlling facts and the controlling law should drive your "Discussion" section or your
"Argument" . You must force yourself to be objective.
3. Simpler is Better. It is the "Kiss" Principle. (Keep it Simple Stupid"
(a) Use simple sentences to communicate clearly. Use simple sentences to make points.
A simple sentence is made up of a single clause: The cat sat on the mat. You can use compound
sentences to add detail. I.e. We are firing on all cylinders and all our businesses are working well,
with good results all around. This is as good as it gets. (compound sentence with simple summary/)
(b) Use simple concrete words in the active voice. Leave out all irrelevant, extraneous information.
Again, remember that the judge has only limited time to read your material. Judges have a short attention span
and a low tolerance for long rambling, obscure and irrelevant chatter.
(c) Use the actual names of the parties rather than plaintiff or defendant.
4. Give information in Smaller Chunks rather than in Larger Chunks.
"Chunking" information means to break up larger blocks of information into small pieces. It means using shorter,
not longer, sentences and to wisely use punctuation to make the sentence more straightforward. Longer sentences can
obscure your point. Longer sentences are more cumbersome and harder to understand. You should use short
declaratory sentences
5. Highlight Important Points or Facts.
It is possible to write in such a way that you highlight important points or facts by the way you write rather than
literally highlighting them by bolding or italicizing them. You can achieve this by following the three suggestions:
(a) Put important information at the beginning or end of the sentence. At the sentence level, put the most important
information at the beginning or end of the sentence. At the paragraph level, put the most important information
at the beginning or end of the paragraph. Try to avoid putting important information in the middle of a sentence
or the paragraph. Readers pay the most attention at the beginnings and ends of sentences.
(b) Each Sentence should have only one primary point. An important fact or point needs its own sentence. It it's
important enough, it may need to be in its own paragraph, even if it is only a single sentence.
(c) Don't forget the Semi-Colon and the Dash. A more definite break, such as a semi-colon; or, a dash --emphasizes
a point more.
6. Cut all Clutter.
Clutter destroys Clarity. Clutter is rampant in legal writing. It appears in a variety of forms: Too much extraneous
information, unnecessary words and phrases; and, unnecessary dates. Too much information can be as bad as too
little information. In fact, it can be worse. Extraneous and irrelevant information hides the important information
and it muddies your legal argument. Furthermore, extraneous information can damage your credibility with the judge.
Brief Writing
Tips from a Justice Scalia speech:
For writing briefs, Scalia said, "Treasure simplicity." "You don't get any credit for eloquence,"
and added, "Just make it simple and tell us your point. Your job is to make a complex case simple, not a simple
case complex." This would obviously also apply as advice for oral argument as well.
Attorneys were advised to never underestimate the power of a short sentence. Turning to grammar, Scalia endorsed
the use of conjunctions at the beginning of a sentence, even starting a sentence with "but."
As far as the use of contractions, Scalia and Garner have agreed to disagree, but Justice Scalia favored leaving
them out of briefs. Scalia dubbed them "Jacobin" and argued they "pull everything down to the street level."
Scalia also frowns upon a brief containing lots of italics for emphasis. He deadpanned that legal writing with
lots of italics tends to read "like a high school girl's diary."
According to the articles reviewed, Scalia saved his sternest warning for the issue of citations. He strongly
recommended characterizing cited precedents accurately. The Justice was quoted as saying, "When a judge sees
that you are playing fast and loose with a citation, he is not going to believe the rest of your brief."
He wants citations placed in the text not in footnotes.
RESTATEMENTS
1. Tell the readers what you are going to tell them, tell them and then tell them what you told them — This is the
basic outline of a piece of legal writing. It is basically the roadmap for the issue, the facts, the controlling rule/law
and the conclusion.
2. Saying something is so, does not make it so. You must support your statements with facts, logic and authority.
3. Don’t be conclusory — This is an admonition to make sure that you have laid the foundation for the
conclusions you have reached.
4. Substantiate your assertions: This is a variation on the theme that the just application of law is based on
the relevant facts, analysis of controlling legal authority and its underlying logic.
5. Don’t make conclusory legal statements without citing the legal authority for the statement. Insert the holdings of the auhority your are quoting. Give the citation and a copy of the headnotes verbatim.
6. Analyze, don’t personalize —That is, do not say, “I believe,” rather analize the facts and the law so that the
facts, the law and the logic speaks for themself. Remember, the judges has sworn to uphold the law.
7. Do not tell the judges what they “must” decide — Rather, tell them what the law requires under the facts.
8. Remember to edit — That is, read, reread, put aside and reread.
9. Brevity is the soul of legal witing — Say all you need to say as completely as possible, as briefly as possible.
10. No one wants to read more than they need to.
REMEMBER TO MAKE A GOOD
LEGAL DOCUMENT EVEN BETTER:
HAVE SOME ONE ELSE PROOF IT AND
REWRITE IT SEVERAL TIMES!!!
