FUNDAMENTAL PRINCIPLES OF LEGAL WRITING

1. Brevity and Clarity

Ideally, legal writing is taut. To tighten your style, try to cut one-fourth of every sentence in
your first draft. Make every word tell. Rooting out verbiage isn’t easy; verbosity often results
from quick, facile writing.

Watch out for recurrent phrases that are the verbal equivalent of throat-clearing; for
example:

In my considered opinion, …
May I respectfully suggest that …
I should note here that it would be helpful to remember the fact that…
It should not be forgotten that…
It is also of importance to bear in mind the following considerations…
Consideration should be given to the possibility of carrying into effect…

Typical examples of pompous indirection:

Not this: But this:

In large part, it was our anticipation of this type Our anticipation of such claims long cautioned
of claim which cautioned us for so long against us against abrogating the immunity rule.
abrogation of the immunity rule.

It is to be noted that in this case the amended Notably, the debt that Smith recovered under
petition upon which the judgment was the amended petition was the same debt as
rendered for Smith was to recover a debt she sought in the original petition.
owing by the defendant arising from the
purchase of the same oil and for the same
prices as alleged in the original petition, and
judgment was rendered for exactly the same
sum as was sought to be recovered in both
petitions.

Occasionally, cutting your sentence down will produce brevity but not clarity. For example:

A will is ambulatory in character and subject to change or revocation at any time.

But ambulatory means “subject to change or revocation,” so you pare down the sentence:

A will is ambulatory.

The problem is that many readers won’t understand ambulatory, which is legal jargon. Instead,
you write:

A will may be changed or revoked at any time before the testator dies.

Beware also of the standard flotsam phrases, which float idly in a sentence without carrying
any of the meaning. There is usually no reason to write it seems to me that, in terms of, on a
_______ basis, my sense is that, in the first instance, or the fact that.

State your thoughts positively, not negatively.

Not this: But this:

The decision was not wrong. The decision was correct.

Instead of increasing deemphasis, say decreasing emphasis. Likewise, when the context allows:

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 Not this: But this:
did not have support lacked support
did not recall forgot
not apposite inapposite
not current outdated
not important unimportant; trivial
not on purpose accidental
of no use useless

Don’t shove several negatives together.

Not this: But this:

The order vacated had required the oil Until vacated, the order had required the oil
companies to abstain from refusing to deliver companies to deliver interstate shipments of
interstate shipments of oil. oil.

Be specific and concrete.

Not this: But this:

Ms. Jones returned to her apartment and
discovered indications that it had been
burglarized. She contacted the authorities.
When Ms. Jones returned to her apartment,
she found her front door ajar, the lock broken.
Inside, she saw that her stereo, television, and
jewelry box had been taken. Within two
minutes, she called the police.

Give enough supporting detail, but avoid excessive detail. You ought to “suppress much and
omit more….[O]mit what is tedious or irrelevant, and suppress what is tedious and
necessary.” Keep whatever expedites the argument, builds up the reasoning, or strikes home
the legal and moral principles involved.

2. Simplicity of Structure

Structure your thoughts simply and directly. To order your ideas sensibly, you’ll need to begin
your journey with an itinerary, however sketchy. If you begin with a fairly detailed outline,
you’re better able to know the relevance of what you write in any given section. And you
help ensure that you reach your conclusion only after working through all the necessary steps.

3. Organizing Arguments

Brief-writers usually follow an issue-by-issue argument. Issue-by-issue arrangement orders

thought logically, so that structure reveals the sequence of thinking or the merit of the points
under discussion. Critical thinking usually progresses in this way:

1. Stating the issues

2. Stating the facts
3. Explaining the legal premises involved in the first (most important) issue
4. Marshaling the critical evidence on the first issue
5. Weighing the conflicting evidence on the first issue
6. Resolving the conflicts on the first issue in the advocate’s favor
7. Explaining the legal premises involved in the second issue
8. Marshaling the critical evidence on the second issue
9. Weighing the conflicting evidence on the second issue
10. Resolving the conflicts on the second issue in the advocate’s favor
11. Urging a particular conclusion

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 4. Constructing Paragraphs

When writing or revising your prose, pay close attention to the movement within individual
paragraphs. If you’ve made two major points in a single paragraph or have included something
extraneous to the idea you’re developing, divide or cut.

Paragraphs may be short or long. As a rule, make your paragraphs more than one sentence
but less than a full page. One-sentence paragraphs aren’t forbidden. Occasionally, they serve
as good transitional devices, as with the middle paragraph here:

We are able thus to delude ourselves by giving “reasons” for our attitudes. When challenged
by ourselves or others to justify our positions or our conduct, we manufacture ex post facto a
host of “principles” which we induce ourselves to believe are conclusions reasoned out by logical
processes from actual facts in the actual world. So we persuade ourselves that our lives are
governed by Reason.

This practice of making ourselves appear, to ourselves and others, more rational that we are,
has been termed “rationalization.”

Rationalization not only conceals the real foundations of our biased beliefs but also enables us
to maintain, side by side as it were, beliefs which are inherently incompatible. For many of our
biased beliefs are contradicted by other beliefs…. (Jerome Frank, Law and the Modern Mind)

As for conventional longer paragraphs, build each one around a topic sentence.

There are nine common ways to develop paragraphs.

Pattern Method
1. assertion, then details argument, exposition
2. cause and effect argument, narration, exposition
3. likeness, analogy argument, exposition
4. contrast argument, exposition
5. data, then conclusion exposition, narration
6. chronology narration
7. definition exposition
8. classification exposition
9. particulars in spatial order description

Whatever the approach, the ideas should unfold sensibly, with unity and coherence. Readers
should not have to reorder sentences in their minds to follow your reasoning.

Paragraphing should also show the progression from one idea to the next. At the outset of
each paragraph, orient the reader with a transitional connective. There are three means of
providing such a transition: (1) transitional words and phrases commonly used for this
purpose (but, and, besides, even so, further, moreover, nevertheless, still, therefore, thus, yet), (2)
pointing words (such as this or that), and (3) echo links (words and phrases that refer
notionally to what has preceded).

5. Constructing Sentences

A sentence must be so written that the punch word comes at the end. That the end is
emphatic explains why periodic sentences work. For example:

But when for the first time I was called to speak on such an occasion as this, the only thought that
could come into my mind, the only feeling that could fill my heart, the only words that could spring
to my lips, were a hymn to her in whose name we are met here tonight—to our mistress, the
Law. (Oliver Wendell Holmes, The Law)

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 An unimportant phrase at the end makes a sentence fizzle:

Not this: But this:

The plaintiffs caused the losses with but a few With but a few exceptions, the plaintiffs
exceptions. caused the losses.

The witness first testified graphically about the
crime scene, even opining that the two victims
had been dueling each other in the expansive
backyard, the implication being that only the
two decedents were involved, but right before
the climactic part of the description the
testimony ended in a flurry of motions to
strike and various collateral matters that the
judge took duly under advisement, including
lead counsel’s long-standing plans for a
vacation at a golf resort.
Though the day was plagued with procedural
motions, some important testimony did
emerge: the witness testified graphically about
the crime scene, even opining that the two
victims had been dueling each other in the
expansive back yard. The implication was that
no one else was involved.

As for short sentences, lawyers frequently overlook that paragon of directness, the simple
declarative sentence.

It matters how judges decide cases. It matters most to people unlucky or litigious or wicked or
saintly enough to find themselves in court. (Ronald Dworkin, Law’s Empire)

Good sentences lack the excess bulk that most writers feel tempted to throw in. Those who
succumb often suffer from excessive formality and too much passive voice.

Not this: But this:

The gist of the opinion of the court of appeals,
which was sitting en banc, was expressed in
terms of the effect of the statutory immunity
from suit, which had not been amended since
the passage of the act by Congress in 1928.
In its opinion, the en banc court of appeals
relied on the statutory immunity, which
Congress had not amended since passing the
act in 1928.

Also of importance, without Ms. Stanlin’s
testimony that the lawn mowers were actually
missing from the Four Seasons store, it is
doubtful that the delivery by the driver (even
if he was Marshall) of two boxes, of unknown
content, showed that two lawn mowers, or
any, were dropped off at Frederick Street,
even though one of the (perhaps previously
discarded) boxes indicated that, at least at one
time, a lawn mower had been contained within
it.
Ms. Stanlin testified that lawn mowers were
missing from the store. Apart from her
testimony, the [plaintiff] had no proof that the
mowers had been there. The driver’s
testimony that he delivered two boxes, not
knowing their contents, does not alone prove
their presence.

Problems also crop up in what is called noun plague, or noun-banging. When more than two
nouns follow in succession, the sentence becomes less readable.

Not this: But this:

Consumers complained to their Consumers complained to their
representatives about the National Highway representatives about the “interlock” rule for
Traffic Safety Administration automobile automobile seatbelts, a rule applied by the
seatbelt interlock rule. National Highway Traffic Safety
Administration.

The direct participation programs principal Those whose supervisory functions are limited
category of registration is the minimum to programs involving direct participation
qualification requirement for persons whose must first register for the programs.
supervisory functions are limited to direct
participation programs.

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 Instead of beginning with the subject, try beginning with the subordinate clause so as to keep
related words together:

Not this: But this:

The Court, in the course of the hearing, noted
that the accident had occurred in Randall
County. The Court found that it was a proper
forum in which to try the issues, The Court
therefore denied the motion to transfer
venue.
In the course of the hearing, the Court noted
that the accident had occurred in Randall
County. The Court therefore ruled that it
could properly try the issues and denied the
motion to transfer venue.

Subordinate ideas by placing them in subordinate clauses, which begin with conjunctions such
as after, although, as, because, before, if, so that, until, when, while. For example:

When the judge entered the courtroom, everybody rose.

If you use a complex sentence, put the principal idea in the main clause, not in the subordinate
clause.

Not this: But this:

They were driving north when suddenly from As they were driving north, suddenly from
around a curve a car crashed into them. around a curve a car crashed into them.

The terrorist fell asleep after several hours, When the terrorist fell asleep after several
when the hostage crept away to safety. hours, the hostage crept away to safety.

Whether ideas are or equal or parallel importance, clarify their relationship through parallel
phrasing. Many parallel coordinators work to best advantage in longer sentences:

although/yet if/then not only/but also

both/and just as/so not only/but…as well
either/or neither/nor when/then
first/second/third not/but where/there

Watch the grammatical units framed by these connectives. If the sentence parts don’t match, the
result is a nonparallel construction.

Not this: But this:

Easements can either be affirmative or Easements can be either affirmative or
negative. negative.

The jury may have concluded that the The jury may have concluded that the
entranceway was neither negligently entranceway was neither negligently
constructed nor maintained by the Investment constructed nor negligently maintained by the
Company. Investment Company. [Note that in the
original sentence, omission of the word
negligently in the second phrase exactly
reverses the intended sense.]

Judicial impartiality is not only a matter of Judicial impartiality is a matter not only of
constitutional law, but also public policy. constitutional law, but also of public policy.

The attorney argued that there were
mitigating circumstances, including the fact
that the drug had been prescribed for Jones,
who had completed a drug rehabilitation
program, and Jones was no longer addicted.
The attorney argued three mitigating
circumstances: First, Jones’s doctor had
prescribed the drug. Second, Jones had
completed a drug-rehabilitation program. And
third, he was no longer addicted.

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