Part III: Don't tell the reader what to think or feel

To achieve the Remaining Invisible goal, the writer has to remove her mental and emotional processes from her writing. Judges know when lawyers are making a play for their emotions, so instead of proclaiming indignation ("opposing counsel's conduct represents an affront to the legal profession"), it's better to state the facts which provoked it ("out of twelve pages of argument, counsel devotes three pages to precedent and the remainder to questioning plaintiff's parentage"). Instead of telling the reader what to think, it's better - and more convincing - to set out the facts and law in a way that leads him to the desired conclusion on his own. A well-presented argument doesn't require unnecessary, transparent efforts to convince (e.g. "clearly," "obviously," "blatant," "utter," etc.). A "clear" and "obvious" thing will speak for itself.

But sometimes lawyers have to make arguments that don't stand a chance, and write with the hope that calling their conclusions "obvious" lends them a cloak of inevitability that covers their flaws. Unfortunately, it doesn't. This strategy can't compensate for bad facts or law, and works best as a giant flashing arrow drawing the reader's attention to an insubstantial claim. And, like George Costanza trying to convince a woman she can't get him out of her head, it's simply magical thinking done badly.

For example, the first of these sentences draws a conclusion for the reader, but the second depends on the facts which lead the reader to decide for himself:

  • His conduct was clearly offensive.
  • Several neighbors denounced his conduct at four consecutive community board meetings.

Likewise, adverbs, adjectives, and qualifiers (such as "a fairly significant holding" - is it significant or not?) draw attention to the writer's unfolding thought process instead of the facts and law. Compare these versions of a quote from the late Justice Scalia, and note how various hedging techniques weaken the first, doctored version, compared to the second, original quote:

  • “I would argue that adverbs are mostly a cop-out. They’re almost a way for you to qualify, and if you don’t use them, it really forces you to think through the final conclusion of your sentence. And clearly, it forces you to confront the significance of your word choice, in other words, the importance of your diction.”
  • “I think adverbs are a cop-out. They’re a way for you to qualify, and if you don’t use them, it forces you to think through the conclusion of your sentence. And it forces you to confront the significance of your word choice, the importance of your diction.”

True, there's no need to avoid these formulations in a initial draft. Embrace them at first, if you'd like - it's important to write without interrupting the flow - but don't let them slip past your editing. Here's the Bryan Garner-recommended method for condensing diluted prose: Where you encounter a qualifying word, delete it, and if it changes the meaning of your sentence, try to express your meaning with a more precise noun or verb before resorting to your qualifier.

Part II - Achieving Your Invisibility Superpower

In the last post we identified our goal of keeping ourselves as writers in the background. This is hard for anyone, but maybe even more so for lawyers - we of no small egos - than many other writers. Here's one strategy that helps: Break things down. Sticking to, or at least aspiring to, a particular structure requires thoughtful organization, which lends itself to clear explanation.

One classic method, widely preached by Bryan Garner, is syllogism - a major premise, followed by a minor premise, then a conclusion. You've probably seen this classic example:

Major premise: All men are mortal

Minor premise: Socrates is a man

Conclusion: Socrates is mortal.

In other words, your major premise is your rule of law; your minor premise, a short description of the facts; your conclusion explains the effect of the major premise on the minor, or the overall outcome of the situation.

Even though many lawyers have already encountered another structure - the (F)IRAC method - in law school, often one wouldn't know it to read their papers, so a refresher can be helpful.

(Facts - if not established elsewhere already)

Issue - the question you're asking the court to decide

Rule - governing statute or premise

Application - how the rule applies to the facts of your case

Conclusion - how the application of the rule controls the issue

A twist on the IRAC formula is called CREAC (but don't ask how to pronounce it):

Conclusion - how the application of the rule controls the issue

Rule - governing statute or premise

Explanation - the rule's logic/rationale/intent

Application - how the rule applies to the facts of your case

Conclusion

This method works well for policy-based arguments, which rely on the reasoning (legislative intent, for example) behind a given rule, and explain how an outcome adverse to your client's interest would violate that intention. Further, there's no guarantee in any writing that the judge will make it to the end of your point section or the senior partner will reach the end of your memo, so it's generally wise to lead with your conclusion regardless of your chosen structure.

These strategies can organize any level of a written product - the brief as a whole, and each point heading, sub-point, and paragraph. Just as in most other areas of law, nothing here is subject to rote application and judgment is always required; for example, simply because the CREAC structure doesn't specifically provide for facts doesn't mean one should exclude them.

Any of these organizational structures, or a similar one, makes your logic explicit. Explaining your reasoning step by step guides your readers to the destination you want them to reach, and keeps the focus on your argument, not you.

How to write well - Part I

"A writer is someone for whom writing is more difficult than others" - Bryan A. Garner

Last month I pondered why overworked attorneys should take time away from case management and spend it on the finer points of writing. Many lawyers consider these points secondary or tertiary when writing fact- and law-based arguments to persuade decision-makers. Yet while it's impossible to attribute the win or loss of a given case to the style of the papers, judges on the whole are clear about the type of writing they want to read, and hewing closely to their preferences - which skew almost invariably in favor of short and plain writing - never hurts one's position.*

So that's why, and I doubt we can get a clearer answer than that. The question then becomes how to achieve this plain-language ideal. I've read pointer after pointer after pointer and while suggesting that a list of good writing tips could be "infinite" is a little hyperbolic, no matter how long the list is it could never be exhaustive. But whatever the issue is, I don't think I've ever seen any advice which is incompatible with this, the overall mission of any conscientious legal writer: Make yourself invisible.

Restate this principle to yourself however you like so that the image is wedged into your head. "Place yourself in the background." "Don't waste readers' time." Or if you prefer classical phrasing, here's some from Sir Arthur Quiller-Couch: "the business of writing demands two—the author and the reader. Add to this what is equally obvious, that the obligation of courtesy rests first with the author, who invites the séance, and commonly charges for it. What follows, but that in speaking or writing we have an obligation to put ourselves into the hearer’s or reader’s place? It is his comfort, his convenience, we have to consult. To express ourselves is a very small part of the business: very small and almost unimportant as compared with impressing ourselves: the aim of the whole process being to persuade."

But what does this process look like? We'll start exploring it in the next post.

 

* Except that "[t]he price of clarity, of course, is that the clearer the document the more obvious its substantive deficiencies. For the lazy or dull, this price may be too high." Reed Dickerson, Professor of Law, Indiana University.