Legal Writing

hemingwayI often edit legal writing, especially initial drafts prepared by associate attorneys, and this page condenses the main points that guide my writing and editing.  I hope you find them useful in your work.  I owe a great debt to Strunk & White and several of these items derive from their wonderful book, “The Elements of Style.”  Another outstanding book about the writing process is Verlyn Klinkenborg’s “Several Short Sentences About Writing,” and Judge John Minor Wisdom’s short essay “Wisdom’s Idiosyncrasies,” 109 Yale L.J. 1273 (1999), is a classic.

orwell1.  Avoid needless words.

Strunk & White: “Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that he make every word tell.”

2.  Use shorter words.

3.  Use shorter sentences.

Klinkenborg:  “A crowded sentence . . . betrays the writer’s lassitude, [t]he lazy shuffling of words together into a single sentence [i]nstead of deciding what really matters [a]nd finding the verbal energy to construct separate sentences.”

A letter I once wrote about deposition dates illustrates the power of brevity.

The Voice of America has a broadcast in Basic English — a simple vocabulary of around 1,500 words. It’s remarkable how much information gets conveyed.  Worth a visit.

And the old adage that “a picture is worth a thousand words” still has great power; a recent Fifth Circuit opinion effectively uses a pair of Venn diagrams to simplify a complicated issue about the Endangered Species Act.

4.  Avoid passive voice.

An extreme position about passive voice appears in the concept of E-Prime.  I don’t endorse its use, but E-Prime does provide valuable lessons to writers unable to shake excesszombiewaveive use of the verb “be.”

In the same spirit, Rebecca Johnson’s “[verb] by zombies” test is a great way to smoke out passive voice.

My passive voice brief highlights the practical problem of a return of service that did not clearly identify the process server (the matter settled before the First Court of Appeals in Houston ruled).  The Dallas Court of Appeals addresses a similar issue in U.S. Bank v. Pinkerton Consulting, agreeing with the basic position in my brief.

5.  There is no good writing.  Only good re-writing.

It’s not clear who said this — Internet sources generally identify Louis Brandeis, but without citation.  But the statement is spot-on, especially in the age of advanced word processing.  You have the technical ability to constantly revise all aspects of written work until completion, and should take full advantage of that opportunity, even if you do no more than take a free minute to change a word or two. (Or in the case of blogging, one never really completes . . .)

THEORY: Good writing, like all good communication, balances three factors: (1) the personal credibility of the author; (2) the logical and analytical appeal of the subject; and aristotle(3) the emotional appeal of the subject.  Aristotle called these points “ethos, logos, and pathos.”  Several years ago I wrote an article about how these principles apply to the highly technical issue of selecting appropriate citations to legal authority.  While somewhat dry, the article shows the pervasiveness and importance of these principles in every aspect of written communication.  By far the best work I have read on trial advocacy is Trying Cases to Win by Herbert Stern, which is based on the practical application of Aristotle’s principles in the courtroom.