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Expert Legal Writing

[ Law ]

Expert Legal Writing

By Teresa Ross LeClercq

LeClercq covers everything a legal writer needs to know, from the mechanics of grammar and punctuation to the finer points of style, organization, and clarity of meaning.

1995

$19.95$13.37

33% website discount price

Paperback

5 3/4 x 9 1/4 | 212 pp. | 7 figures

ISBN: 978-0-292-74688-6

For ten years, Terri LeClercq's "Legal Writing" column in the Texas Bar Journal has helped polish the prose of lawyers and law students, judges and clerks, paralegals, writing instructors, and legal secretaries. This book collects all the advice she has given in her columns into one authoritative guide for expert legal writing. LeClercq covers everything a legal writer needs to know, from the mechanics of grammar and punctuation to the finer points of style, organization, and clarity of meaning. With her practical, readable, and often humorous advice, those who prepare legal documents can rid their prose of mind-numbing "legalese" and write with the clarity and precision that characterize the very best legal writing.

  • Foreword by Chief Justice Thomas R. Phillip
  • Acknowledgments
  • Part I. Introduction: Getting and Keeping a Competitive Edge
    • Introduction
    • 1. Writing like a Lawyer
    • 2. Writing's a Touchy Subject
    • 3. Focus on Density
    • 4. Attorneys and Writer's Block
    • 5. Min(d)ing the Field: Appellate Judges Speak Out
  • Part II. Manipulating Legal Sentences: First Aid
    • 6. The Long Sentence
    • 7. Left-Handed Sentences
    • 8. Marshmallow Constructions
    • 9. Cases and Citations Within the Text
    • 10. Coordination and Subordination: Defining Relationships
    • 11. Examining Other Professional Prose
    • 12. Emulating the Pro's Prose: Stylistic Consciousness
    • 13. Deliberate Sentence Structure
    • 14. Beware of Ambiguous Modifiers
  • Part III. Manipulating Legal Organization: Structure Is Meaning
    • 15. Organization and the Deductive Thrust
    • 16. Organizational Advice for Successful Drafting
    • 17. Quick Tricks for Organization
  • Part IV Manipulating Words: Bigger Isn't Better
    • 18. Jargon: Manure, Margarine, and Moderation
    • 19. Boilerplate: Empty Formalisms
    • 20. Gender-Neutral Language
    • 21. That's Not What I Meant
  • Part V. Punctuating for Clarity: The Poetry of Punctuation
    • 22. Allowing Commas to Create Meaning
    • 23. Sentence Punctuation Guide
    • 24. "Quotation Marks?" She Queried—or, The Arbitrary Rules Surrounding Quotation Marks
    • 25. That Sophisticated Semicolon
    • 26. Compound Adjectives and Noun Strings
  • Part VI. Advice and References: So Go Be an Expert
    • 27. Testing Your Basics
    • 28. Grammar Rules Versus Suggestions
    • 29. Advice to Partners About Advice
    • 30. Reference Books for Legal Writers
  • Index

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You cannot improve our body structure or stamina just by listening to an expert describe exercise techniques.

You cannot improve your writing style just by listening to an expert describe prose techniques.

Working on writing skills is painful—painful to think about, to procrastinate about, to actually attempt, and to evaluate. That pain resembles the pain of first taking an exercise class, and all the familiar excuses work for both activities.

Similar Excuses for Not Exercising
I don't have time to stop and exercise. I have too much to say and can't stop to focus on how I'm going to say it.
No one is complaining, so I must look OK for my age. The motions get filed, the clients pay their bills, so I must be an adequate writer.
I don't need an exercise class; I can do it on my own. I don't need someone telling me how to write; all I have to do is write a little more often.
I hate to start exercise class because everyone there is in better shape or is younger. I hate to attend writing seminars where everyone else is already published or knows what a "gerund" is.
I don't have the money to join a gym, hire a personal trainer, or buy how-to books. I don't have the money to go to a CLE course, hire an editor, or buy grammar books.
It'll hurt. It'll hurt.
Similar Motivations for Beginning to Exercise
It's been too long since I worked out. I haven't had any feedback on just my writing in years.
Someone comments on flab. Someone describes your writing as wordy, rambling.
Someone else looks a whole lot healthier or fits into clothes better. Other legal writers have more frequent success in court and with their clients.
I have a special event (homecoming, wedding, speech) coming soon and need to look good. My (new job, new boss, or upcoming brief before a hostile judge) requires special attention to my prose.
I used to look so cute. People used to compliment my writing, but it's been years since anyone has mentioned anything positive.

Reading about physical exercise doesn't do the reader much good, and neither does reading about writing techniques, because physical muscles and mental gray matter can't grow without stimulus. Stimulus causes movement, so if it's time for you to move, to improve your prose style, why not follow the stimulating advice of the gurus of the exercise world who have changed the bodies and lives of so many exercisers.

How to Begin

The most important thing to remember is that no one activity is a cure-all, no one activity will do everything for everyone. Picking an approach depends entirely on who you are and what you want from your fitness training. Each activity offers its own gains and has its own problems.... You can match your goals to a fitness approach that will enable you to achieve them. (Garrick 1989)

How you begin to concentrate on your writing is an individual choice. Some writers sign up for a review class. Others read books, like this one, to learn writing techniques they'll use in practice. Many read good literature and emulate sentences and techniques from that reading. Still others spend time reviewing their own work to discover their own patterns and then decide what needs work next. Whatever the method, a decision to concentrate on the writing of a document instead of only on the content of a document requires an active decision to take the time to improve. Most experts agree that your time is best spent if it is focused on an articulated, attainable goal. If you want to improve your style, articulate a specific goal and decide how to reach it.

Before you start a program of self-improvement, you need to isolate your problems. In addition to knowing your problems, you must have some idea of where you are going—an objective. You need short-term goals as well as long-term goals, even if they're only simple ones? (Percival et al. 1977)

Virtually all successful body builders are extremely goal-oriented individuals, and it's difficult to accomplish any challenging task without the ability to set long-range goals, break them down into short-range goals, and pursue each goal with singleminded determination and maximum energy. (McLish 1984)

Herschel Walker offers advice to young athletes:

I believe variety is best, because I think every time you play basketball you're working on skills that can help you play football, and every time you do karate you learn something that can help you in your other sports, and so on down the line. I even believe you can get better in sports by dancing. If you think about what you're doing, any kind of movement can help you learn about lots of other kinds of movement.

Any practice in writing can help your legal writing. Write a complaint to your mechanic and spend some time editing it; read an essay from Time and, substituting your own topic, mimic the prose. Read a short chapter from a stylebook that examines one element of style and then spend some time reviewing your documents, looking only at that particular element of style. Any of these activities involves you in the conscious evaluation of prose rather than content, and any of them can help you develop your own prose style.

Visualize.... When you have fixed in your mind the image of the changed you, let that be your incentive for training and working out. This mental image should be your motivator, your goal, the ideal you are determined to reach.... After you have isolated the specific things you want to change, you must create willpower to carry through your desire.... Gradually, as you begin to see and feel results from exercise, maintaining your willpower will become easier. (Schwarzenegger 1979)

What is your goal? What would it mean, to you, to be a better writer? Perhaps "better writer" implies you would be able to characterize an argument or personality with only a few words; great writers can choose a few effective words to replace paragraphs of drafted ideas. Or perhaps being a "better writer" for you is being known throughout the city as a great brief writer. Occasionally I conjure up the image of John P. Frank's office wall in Phoenix which holds separate pictures of U.S. Supreme Court Justices. Several of them are inscribed: "To John P. Frank, a great writer!" I admit I fantasize about those inscriptions on my wall! What will you change about your style or your work habits to reach a height like that? Go for it.

Judi Sheppard Moffit, on trying to learn an aerobic move when she was eight:

It was very frustrating. My back would arch when it shouldn't, my legs kicked too far apart, and the move seldom looked like it should.

Fortunately, my instructor helped me break it down. She suggested that I concentrate on one element at a time and perfect it before I moved on to the next.... By the time the contest rolled around, I had mastered much more than the butterfly. I had learned how to break down a goal and concentrate on accomplishing one step at a time.

Rather than embarking on a global reformation to "become a better writer," it will be helpful if you pinpoint one short-term goal and break down the steps it will take to reach that goal. If your goal is to be more succinct, for instance, try daily for one week to reduce each document by a half page. Another week, substitute stronger verbs to replace wordy noun clusters and adjectives. Then compare your old documents with these conscious writings and determine your progress.

A second aspect of Moffit's advice is equally useful: she received advice, feedback, from a professional. Perhaps another experienced attorney can read a few samples of your writing and offer you some seasoned advice. Perhaps a nonlegal friend can read your document and let you know if you communicated to the lay audience. Perhaps a writing professional can evaluate your prose and suggest techniques for improvement. It is difficult to know how to improve your prose until someone helps you pinpoint the problem. After that, like Moffit, you're on your own to develop the twists and turns that make you successful.

Afterward, of course, you'll want someone to read your prose again and offer yet another suggestion that you can begin to apply.

You can start exercising with your morning shower ... bend, stretch ... walk to and from work, use the stairs ... use television time for stretches, push-ups, lightweight dumbbells . . . park far from store entrance, push the lawnmower. (Ebony, July 1992)

Not all work on your writing has to be accomplished at the moment of writing a major brief or crucial letter; indeed, the real work and real progress will occur through daily, deliberate, repeated experiments with technique. Revise your standard letter format. Evaluate the style of your pleadings. When you read during the day, you can make it a point to consciously notice other writers' sparkling prose in magazines, newspapers, and perhaps even in other legal writing; you can learn from it right then. Right then is a great time to experiment with your own writing rather than waiting until you can formally attend a writing seminar or when you have "extra" time. Your daily writing tasks then become mini-lessons to reinforce writing skills.

The most unfortunate thing is that busy people equate their life styles with being physically active. They also equate their two rounds of golf a week with a means of maintaining good physical condition. This attitude is most unfortunate because we need some form of exercise to replace our lack of activity in order to avoid hypokinetic disease [a host of ailments]. (Kuntzleman 1978)

Just writing, by itself, is not a writing exercise. If you can visualize the reams of paper you produce in a month, you might think you've practiced so much that you're already a pro and don't need additional practice. But more writing is not better writing, as you know from reading the stacks of material that make their way to your desk.

Filling in routine pleadings and signing form letters are also not writing practice. Don't kid yourself. To work on your writing means to concentrate on it, to change it, to become a more effective communica tor. Filing one more fill-in-the-blank pleading should not take the place of real exercise.

Advice about Exercise

You should enjoy your run—don't make it a chore or you're less likely to stick to it. (Delmonteque 1993)

Only 3 percent of all people who start exercise programs continue for a long time. (Pruden 1992)

Pick a short-term goal that appeals to you, e.g., snappy introductions to memoranda, and keep a file of your introductions. As you write and file, you'll begin to understand what you can, and can't, do with introductions. Make it a moment of self-affirmation to choose the most effective introduction of the month.

Then turn to another goal, some other aspect of writing that you want to work on. Really want it! If you want to become a more persuasive writer, review persuasive speeches or read editorials. Try out the technique you learn when writing your next argument, and sit back to enjoy the results!

You're trying to change yourself gradually and painlessly, so don't try to be too good too soon. That usually leads to dropping out. (Sorensen 1983)

If you believe you need to be as good a writer as your most successful legal opponents, and by tomorrow, you will have failed before you began. Why not define a short-term goal (e.g., stronger verbs) that will take you one step closer? Then you can celebrate the success of one step that is also leading toward a larger goal. If you set too tight a timetable for a too-miraculous improvement, you will undoubtedly become too guilty about breaking that schedule and quit altogether.

Early responses form our self images.... By high school most girls are unhappy with their bodies. (Melponome Institute 1990)

Too many attorneys consider themselves "bad" writers. It defies logic that five attorneys in a ten-attorney office could each be labeled the worst writer there. These low self-images are self-defeating, keeping writers from giving their best efforts. Many participants in a writing course, for instance, label themselves "terrible" writers, even though the reality is that they are perfectly adequate. It may be that these insecure writers were victims of overly judgmental bosses or teachers. However it got there, this self-defeating image is difficult to change if the writers do not acknowledge and examine themselves. Given the technical difficulty of legal writing, the abstract nature of the law, and the need for references to precedent, little legal writing resembles Ernest Hemingway's terse prose. So get real about your field and the limitations inherent in it.

Since almost none of us is able to live up to these internalized, unrealistic standards, we hate ourselves and feel guilty and depressed.... [T]he goal of exercising and becoming fit is not to form yourself to the contours of some 'fashionable' mold, not to look like someone else, but to make your own body as vibrant and healthy as it can be, to affirm your own uniqueness. (Fonda 1986)

Within every law firm or agency is that "golden writer," someone who appears to be able to simultaneously research, draft, and polish every gem he or she produces. We all want to be that "golden one." Unfortunately, setting such an unattainable goal can stop anyone's progress. For instance, despite the pleasure of reading the words of a master writer, it's nevertheless destructive to expect yourself to perform to that level with every writing assignment. Similarly, although it's helpful to evaluate your boss's writing style (and avoid her pet peeves), it's unrealistic to believe you can duplicate the rhythm, the speed, and the style of her prose. By evaluating, you can improve, of course, but you cannot duplicate. A first step toward a realistic standard for your own prose should probably be to identify and label your own style-you have to have one, just as everyone has to have a personality. After that, you can decide how to improve on what is already there-your special flourishes, your trademark vocabulary, your pithy conclusions. Once you have begun to understand your own style, you will develop power from your prose ability, a power that allows you to trust your impulses when you try a different technique.

Don't overdo—you are not competing with anyone. A competitive spirit just adds undesirable tension and stress. (Boutelle and Baker 1978)

Attorneys have trouble following this bit of advice! You are already competing with the other side's legal counsel; you are competing against case precedent that leans to the other side's argument; you constantly compete against deadlines; and you are even competing, consciously or unconsciously, with other members of your own firm. Why add to this dizzying competition by bringing your writing style into the fray?

For those with enough competitions in their lives, I suggest you set your own realistic goals and then adjust those personal goals to your time schedule and varying audiences. That's enough. Don't try to compete with writers who have more experience; learn from them instead. For example, because I have created student handouts for the last twenty-five years, I can dream them up, prepare them, and have them ready faster and more efficiently than first-year teachers can. But I can't create children's poems faster and better than experienced poets. All I can hope is that by reading their poetry and questioning my own drafts, I can painstakingly craft a poem that seems effortless to the reader. That's enough.

When to Exercise

Three 10-minute exercise sessions spread throughout the day appear to do as much good for you as one 30-minute session. (Connors 1992)

Attending to a writing exercise during one seminar is less useful than editing a draft in the morning and working on smooth transitions later in the day. Especially useful is a macroedit after finishing a draft, when you have more freedom to move large sections around, and a microedit the next day, when you can, for instance, choose more vibrant verbs and shorten sentences. Being conscious of style at different stages of the writing process can produce a stronger document than merely proofreading before sending it out.

You should pick an aerobic activity that really interests you—one that you will stick with indefinitely—perhaps for the rest of your life....

Finally, after you've decided on your basic aerobic exercise, you should schedule a definite program for pursuing that activity and commit yourself to it for at least 6 weeks. (Cooper 1982)

Choosing to accomplish a particular writing goal may seem awkward at first, and of course time consuming, but repeated practice will pay off. A hit-or-miss approach to improved writing will only occasionally improve writing. That won't meet your long-term goal of developing into a golden writer. So, although it is unrealistic to believe you can focus specifically on writing style rather than on substance every day for six weeks, nevertheless your greatest success will follow a systematic course through the process of writing. Don't give up without giving the process time to work!

You need exercise. No matter what your condition. Everyone does. Without exercise your body becomes sluggish—fat. The simple fact is you never graduate from the school of physical conditioning.... [T]he benefits of exercise cannot be stored for any great length of time. (Kuntzleman 1978)

To tell yourself that you have already had a writing course (maybe back in law school) does not change the reality that you are not writing to your capability. You can improve, and should improve, with practice. Just writing on the job five hours a day, without concentrating on the how instead of the what, is not writing practice. You're just writing. You aren't learning, aren't growing, aren't staying competitive.

Many attorneys believe that any concentration on style is too time consuming. True, writing well simply is time consuming, but conscious, consistent practice can eventually make good writing easier and finally maybe even faster. At first, unfamiliar exercises are hard, are frustrating, and take lots of time. When they become familiar and automatic, they take less energy and time and produce more effective prose.

None of us writes as well as we would like. We're all on that journey to perfection—just on different steps. Learning to organize memoranda in law school, for instance, does not mean you will always know how to organize a legal discussion. Somewhere along the line, you need to concentrate again on organization, this time perhaps looking at topic sentences or perhaps concentrating on dovetailing transitions. These skills cannot be learned all at once, but they always lose importance when you have to focus on substantive arguments or when you have to make a deadline. Between crises, though, keep learning, keep practicing.

It's easy to give up, I know that. It's easy to throw a book like this across the room.... It's easy to give in to excuses and that little voice inside you that says it's hopeless.

However, the best things in life aren't easy. It's hard to get down on your mat each day; it's hard to do those push-ups and those sit-ups. But, honest to God, you can do it. I did it. I know you can. (Simmons 1983)

Few writers want to practice, want to spend time evaluating their prose instead of sending out the document and moving on to the next project. Most of us don't even want to proofread—and that's simple mechanics. To reread drafts and add transitions and move paragraphs and add headings and eliminate surplus words is tough and exhausting. Naturally, it's tempting to skip all the editing and think, "Well, they'll know what I meant to say." But the truth is that every assignment sent out without some conscious stylistic revision is an opportunity missed, a muscle that will continue to atrophy because we were too lazy or self-defeated to change. Perhaps this editing won't make a difference in that particular document, but the exercised muscle will make your prose style stronger for the next assignment, and the next.

Conclusion

No one can exercise for you. An instructor can help inspire you and direct you, but you have to fight through every self-improvement step yourself. The attorney who asks his office partner to "take notes at the writing seminar for me" obviously isn't going to get as much out of the notes as the participant did by listening to and following the exercises from an expert. Similarly, just reading about writing doesn't automatically make you a more efficient writer. You have to consistently apply what you've read. Even writing more often, but writing without feedback, will only get you more, but not better, written.

So it's back to the scratch pad or computer for all of us. Once the substantive ideas are drafted, the real work begins. And although we may hate to concentrate on rhetoric and process, we all love that marvelous surety of having written, and written well. This book is meant as a stimulus for those legal writers who already write well enough but want to write their best.

Can ,you a remember the last brief you read that you found interesting and persuasive? Attorneys frequently plow through reams of dull, repetitive legal material and think "Well, that's what I'm getting paid for. No one said my work would always be interesting."

What does an English professor have to offer an experienced attorney? I think attorneys, experts in their substantive areas, can profit from considering a different perspective. Law students spend three years learning to think like a lawyer and the rest of their lives learning to act like one. Writing like a lawyer evolves mysteriously within that process but all too frequently with no overriding perspective, no formal instruction, and no constructive feedback. It's not just basic errors in English that keep legal writers from effectively and concisely communicating with clients and each other. Instead, it's a lack of awareness of audience—that person out there who is the intended recipient of the words you are struggling with. That's when a new perspective can come to your aid.

As an English professor, I've spent twenty-five years investigating the mystery of writing: what prose habits work and why. I read others' writings not to find the flaw within the argument but to analyze its effectiveness: Does this paper convince me of a point of view? Why or why not? Years of investigation have produced that distance from the material that allows me to judge and to teach both law students and experienced attorneys how to improve their written communication.

Some law firms use lawyers to teach legal writing. They teach the law, the process of research, the expediency of legal forms—but they rarely know how to explain why a sentence is "awkward" or why a memorandum is too dense. They are uncomfortable with "tone," "style," and "internal cues." Teaching writing to a practicing attorney takes patience on the part of the teacher and a belief in a busy attorney's ability to correct and polish style. Not many practicing attorneys have that time and optimism to share with their colleagues.

Within the law firm, partners necessarily help associates with their written communication. But the style preferred differs from partner to partner, from section to section of the firm. The emphasis can slip from clear communication to the writing habits of the supervising partner. Few associates are going to argue with a partner's suggestions, naturally, so the firm becomes locked into habits that may not produce the most effective communication.

What struck me as strange when I first began talking with attorneys about their writing was that their reactions to legal writing are only slightly different from a lay person's: they also find it too dense and unreadable. How excited are you to read a memorandum of law that your associate, or your opponent, has prepared?

No one made a rule that attorneys have to bore each other to death with a writing style tainted by archaic language. Sure, most legal documents have to follow the conventions of formal writing. But even in formal writing, an attorney can use crisp prose, short sentences, identifiable topic sentences. Writers who deliberately allow the time can polish the document and include metaphors, parallel ideas within parallel grammatical structures, introductions and summaries that persuade as well as inform.

And that's what this book is about.

Now can be the time to emphasize your own clear writing. Allot yourself a final half hour to read through your drafts—with a little fresh advice to spur you on. Before you know it, you may hear from a client who actually understands your latest letter or find a judge who takes home your brief because he is so interested in your argument that he wants to finish reading it before he goes to bed.

The improvement of your writing style will take a little work on my part and lots of work on yours. Welcome to an English professor's perspective.

"LeClercq can be read generally for an education or consulted specifically for an answer. In either case, her short and readable articles are practical aids to maintaining your intelligibility and, frankly, your credibility."

—Lynn N. Hughes, United States District Judge

"Drop what you're doing and get a copy of Terri LeClercq's book. Read it, absorb it, and use it daily. Your writing and your thinking will improve. Ms. LeClercq will rid you of the dense, hidebound jargon you were taught in law school, and introduce you to the wonderful world of clarity and brevity."

—Mark Weiss, Senior Administrative Law Judge