Practicing attorneys should be no strangers to good legal writing.
From legal briefs, to motions, to closing arguments, legal writing projects often make up the bulk of a firm’s workload. Keeping your writer’s edge sharp is a necessity if you want to stand out from the competition. As former trial lawyer and novelist William Lashner once said:
“People read legal writing differently. When you’re at the crux of a legal argument, every step is a step in the argument. The judge will see any holes.”
This reality puts the pressure on practicing attorneys everywhere to step up their writing game or risk losing battles in the courtroom. Using modern case management software to encourage accuracy and firm-wide collaboration on writing projects can help, but it’s the final copy that judges will use to influence their rulings.
You don’t have to write at a Shakespearean level to be an effective lawyer, but there are some important do’s and dont’s to remember for the next time you’re preparing a legal brief.
From the Expert
A few weeks ago we had the privilege of hearing from professional legal writer Ross Guberman on the Filevine Fireside. He answered our questions about legal writing, and explained the importance of framing your argument for the right audience.
Specifically, he spoke about writing for judges, and left us with some useful insights about his process. What do judges love? What do judges hate? What makes a judge roll their eyes or laugh out loud?
Here are a few tips and tricks we learned that can help ensure your legal writing finds a Judge’s good side:
1. Don’t be Snarky
It’s always tempting to use a little well-intentioned humor to soften up your audience, but is it always a good idea? Ross Guberman doesn’t think so.
Exaggerating a defendant’s intentions by using hyperbolic adjectives like “baseless,” “preposterous,” or “selfish,” is more likely to make a judge scoff in derision than make them sympathetic to your argument.
For the same reason, you should avoid beating a literary dead horse. If your Summary of Judgement Standard goes on for three-fourths of a page, it’s time to rethink your structure. Long-winded arguments come off as bloated and soap-boxy, while more direct language will impress your audience and more effectively communicate your idea.
2. Be Genuine
Judges are highly trained in the art of separating fact from fiction. There’s no surer way to land on their bad side than to stretch facts too far in a legal brief. Ignoring gaps in your client’s fact pattern or working too hard to cover up weaknesses in your own case can quickly earn you a judge’s distrust and disdain.
In Ross’ experience, refining your writing process is the key. Start by creating a draft based solely on the logical progression of your argument. Lay out the facts honestly and succinctly, and remove any emotion or rhetoric from the equation. This draft should be bloodless, factual, and probably a little dry.
Once your argument is air-tight, though, you can start having fun. Revise your brief with an eye to strengthen your argument. Add modifiers, adjectives, and adverbs to slant the facts in your favor while still maintaining ethical standards. This is where you turn your cold, logical argument into something human and relatable. By starting with the facts, you can win the confidence of any judge.
3. Don’t Write Frenzied Legal Briefs
Law firms move so quickly these days that it can be hard to set aside the necessary time for writing good legal briefs. But judges aren’t usually in the habit of accepting excuses for bad legal writing, and having a busy schedule won’t save you from an unfavorable decision.
Before you start writing, make sure you’ve allotted enough time to the project to avoid feeling like you’re under a time crunch. When you’re dealing with that kind of pressure, it’s hard to stop those negative emotions from working their way into your finished draft.
You don’t have to aspire to Gandhi’s level of self-actualization to avoid this pitfall, but you should be able to leave the frenzied feelings of your day-to-day schedule behind when you’re working on your legal briefs. Things like automated workflows and productivity reports can help keep your mind at ease and your head down while in the writer’s room.
4. Think Digitally
More and more, judges are consuming their legal briefs through digital means. You should take it for granted that your brief may be read from a tablet, smartphone, or laptop, and structure your writing accordingly.
Unsurprisingly, human beings approach reading things on a screen very differently than they would a printed page. Most of the time, they’re using their smart device out of convenience, and that’s something you need to keep in mind while formulating your legal briefs. You may find that digital readers are far more demanding on proper formatting than your typical judge from the pre-digital age might be.
Account for this by ensuring your piece reads well in a digital format. Give more allowance for white space, and keep your paragraphs short and concise. Headings and subheadings need special attention to ensure they convey the right meaning on their own as well as in the context of the larger brief.
Most importantly, be very mindful of footnotes. The placement of these footnotes are often at the whim of whatever software the judge is using to read the brief digitally. “Stress-test” your document’s formatting on as many devices and readers as you can to ensure details are not misplaced when the judge reads it.
Ross Guberman, Legal Writing Pro, and BriefCatch
These four tips have barely scratched the surface of what you can do to become a better legal writer. You can listen to Ross Guberman’s full episode of the Filevine Fireside here.
Ross Guberman has worked with thousands of attorneys and judges and dozens of state and federal agencies teaching the in’s and out’s of great legal writing. He’s the president of Legal Writing Pro (an advanced training and consulting firm), and he just released the editing tool BriefCatch.
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