Litigation Writing Style
A big part of being a litigator is writing. But writing in litigation is not like writing a short story, novel, or blog. The primary goal is not to be creative or artistic. Instead, it is to clearly and accurately convey information. But this isn’t the sort of thing that a robot can do well (yet). It requires some skill and a little bit of artistry to coherently put together written submissions that a third party can read and understand. And it requires even more skill to write a document that other lawyers won’t roll their eyes at.
Why should you read this post about litigation writing style?
You want to know a part of the job of a litigator that involves a lot of work and strong opinions but that clients may not care about at all.
You want to know why your MFA doesn’t translate well to writing a memorandum of law.
You’re a second year associate and you want to know some lessons I learned about writing briefs.
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Some Lawyer Write Over-the-Top, I Do Not
There are different styles in litigation writing. Many lawyers use a lot of adverbs and describe whatever happened to their client as the worst travesty in the history of the world. This is popular with plaintiffs’ lawyers, who often have clients who have been wronged and who rely on provocative language to prompt a settlement, get attention from the press, or who feel a sense of personal rage at the defendant.
I find that people take lawyers more seriously when they stick to the facts. If a defendant failed to pay $1 million, just say that. I understand how serious that is and I can work with you to address the underlying issues. But by comparing the defendant to a monster or a criminal, the defendant is more likely to want to clear their name and thus not settle. And the defendant may view the plaintiff as unserious and thus view their claims with skepticism.
Also, most commercial claims do not merit over-the-top language. Judges often see horrible events recounted in the cases they judge. And so a lawyer who claims that her breach of contract action or securities fraud is egregious may not be taken seriously if she believes her claims are much worse than the others that the reader may see.
As a corollary to this rule, I think it is good when lawyers do not repeat themselves. Repeating the same argument or concept multiple times in a brief indicates to a reader that the author does not intend for the document to be read carefully enough to have caught the item the first time, which makes the document seem less serious generally. It also makes the document longer, and thus harder to read. And it dilutes the strength of the argument since its impact diminishes when it is no longer new. Lastly, repetition usually arises from poor organization, which means the author could have organized the document in a way that makes it easier for a reader to digest.
IRAC
Many law students are told to follow a structure in their legal writing: Issue, Rule, Application, Conclusion, or “IRAC.” In other words, legal writing should state what the issue is, what rule governs that issue, then apply the rule to the facts of the case, and then explain the conclusion. For example, an issue may be whether a plaintiff filed her complaint too late. The rule is that contract claims need to be filed within six years of a breach. Here, the plaintiff filed within five years of the breach. Therefore, her claim is timely.
This structure may seem clunky. And it is hardly original. But it ensures that the author follows the correct procedure of identifying an applicable law and then applying it. And it makes it easy for a judge or opposing counsel to ensure that the lawyer has identified the correct law and applied that law correctly. And it makes it easy for a reader to follow the lawyer’s logic.
Good legal writing follows this structure. While many lawyers deviate from it, I have found that these deviations are rarely successful and often arise from the lawyer’s sloppiness and not a deliberate choice of a superior method.
Good Grammar
At first blush, it may seem like a waste of time and money for a lawyer to care about good grammar. But a reader may conclude that a lawyer who makes grammar mistakes is also too careless to get the facts or law correct, especially when very fine distinctions matter. Also, good grammar makes writing easier to understand, which is important when the purpose of a written submission is to tell a client’s story so that someone else understands it.
Although this is technically not grammar, I am a huge fan of topic sentences. Every paragraph should start with a sentence that summarizes the purpose of the paragraph. Each paragraph should communicate a distinct thought and a topic sentence helps the author distill what that thought is and allows a reader to easily understand what that thought is. I believe that, instead of giving the reader a bunch of information and hoping she comes away from it the conclusion you want, you should just tell her what the take away should be and then use the rest of the paragraph to support that conclusion.
Along those lines, I hesitate to start any paragraph with an opposing argument. Even if the point of the paragraph is to criticize an opposing point, I am loath to highlight the argument at the start of a paragraph. So if I were a plaintiff, instead of starting a paragraph with “The defendant claims this claim is untimely,” I would start with “This claim is timely.”