Last month's column was an introduction to this series, and discussed the generally poor state of legal writing. This article begins the "Thirty Rules to Improve Your Writing." I use "rules," because that seems about midway between "laws" or "suggestions." They are not laws, because some can be broken, and many must be fit to the specific task at hand. But they are a bit more than suggestions — many you may disregard only at your peril. Today, we start with the first four.
Rule 1. Know your audience.
In all writing, the first rule is to know your audience. If you are communicating to a court, know the court — be familiar with the local rules and practices, the members of the court, and the preferences of those individuals. The first question in all writing is: For whom are you writing? Are you writing a brief for an appellate court, a trial brief, an opinion letter to in-house counsel, an opinion letter to a highly knowledgeable layperson, or one to an unsophisticated client?
If the judge is an expert on the law on your issue, then the facts are all the judge should need to process the argument; the facts become most important. If you are before a brand new judge who practiced probate law for 20 years, then you will probably assume that the judge's knowledge of the law of your trade secrets case might be less. Then, your brief should contain a more fundamental discussion of the law.
We are here concerned mainly with persuasive writing. Transaction drafting and legislation can present particular problems, but also should be in plain language. If you are to persuade a judge to rule in your favor, or an adversary's lawyer to pay you money or to demand less money, you want to be persuasive. And the most important step in persuasion is communicating clearly what it is you are trying to persuade the other person to do.
Rule 2. Front-load your document placing context before detail.
As with all writing, organize your document to be front-loaded. That is, educate the reader as to what is coming. Put the important material up front. Readers understand much more easily if they have a context. Because readers understand new information in relation to what they already know, tell them a piece of new information that relates to their presumed knowledge. Then, build on that information with each new piece you add.
First, ask yourself how much your audience already knows about the facts and the law of your case. The answer is that the judge knows very little about the facts of your case. You have lived with your case for perhaps years, but the judge knows only what is set out in the pleadings until you explain what happened.
Strive to explain the case in a way that an average person can understand. This is not always possible, but it should be your goal. Judges and lawyers are generally sophisticated readers, and can understand difficult prose if given enough time. But why would you want to make it difficult? Each extra step the reader must take in deciphering the facts of your case or the theory of your argument distracts from the force of your presentation. Make it easy for the reader.
Explain your case in the first two or three pages. If you cannot explain the essence of the dispute in three pages, you probably have already lost your first and best chance to keep the reader's attention.
You must build a container, or context, in the reader's mind, so when you pour in the facts and the law of your case, the reader has the container to hold the information. Otherwise, it leaks out.
How do you read legal opinions? Too often, we have to skip to the end to find out what happened. An appellate opinion should be written so that the first paragraph or two tells you about the case and its outcome. So should your brief or memorandum.
One reason we put important points up front is we need to put context before details. The reader learns by building on prior knowledge. If the reader starts with no knowledge of your case —which is generally true — you have to give them everything. Do not start out giving facts about your case without giving the context. Tell the reader what kind of case it is. And the most important part of putting context before detail is framing the issue — letting the reader know what the case is about. And put that right up front.
Rule 3. Frame the issue in fewer than 75 words.
The most important part of your trial or appellate brief, or even of a memorandum to another lawyer, is framing the issue. What is the question you are trying to answer for the court or the other lawyer? What do you want the court to decide?
Do not start writing your brief or memo until you have a succinct statement of what the case is about. And you must do this in 50-75 words. If you can't explain the case in 75 words, you do not understand it very well, and neither will your reader. Too often I have seen cases go all the way to appeal and still the lawyers have not figured out what the case is about.
Put your issue statement right up front, preferably in the first paragraph of your brief or memo. Two examples:
Paula Jones was fired from her job with Environmess, Inc. because she consulted a lawyer about a possible slip-and-fall case against an Environmess client. If Ohio workers may only enter the courthouse in fear of losing their livelihood, they cannot exercise any of their legal rights. But Ohio law mandates that the courthouse door must remain open. (57 Words)
Ohio workers' compensation coverage does not extend to a Canadian citizen residing in Kentucky and injured in Illinois while engaged exclusively in interstate commerce under an employment contract entered into in Florida with a Florida employer.
A short, plain statement of the issue tells the reader what the case is about, and provides context for the discussion that follows. It also defines the issue in a manner that, if the court accepts your framing, will allow you to win.
Rule 4. State the facts succinctly.
Remember that you have already put the issue up front in 75 words or less. Then in your facts statement, you have to explain the case totally.
You have already told the reader what the issue is and generally what kind of case it is in your 75-word — or 57-word — statement. Then expand on that. Two or three pages should suffice. After you have done your short statement of facts, you can weave the facts into the discussion section of your document — and you can add and expand there if you need to. Your first statement is to give context — a roadmap.
Have a nonlawyer read your facts statement and see if that reader can tell you what the case is about. (Yes, you may, and often should, end a sentence with a preposition.) If a nonlawyer cannot understand the facts of your case, you have failed.
Be concise. If you have had some experience writing media copy, you will have learned that you can say what you need with fewer words. The fewer the words, the more memorable the point:
"I have nothing to offer but blood, tears, toil and sweat."
"I have a dream."
"Where is the beef?"
April 7, 2002
Judge Mark P. Painter has served on Ohio’s 1st District Court of Appeals since 1995, after 13 years on Hamilton County Municipal Court in Cincinnati. He is one of the most-published judges in Ohio history, with more than 270 of his decisions published nationally. He is the author of “Ohio DUI Law, Ohio Appellate Practice,” and