the (new) legal writer

“Affect” can be a noun, and “effect” can be a verb.

It’s easy to confuse the words affect and effect. I’ve seen some tipsters suggest using affect when you need a verb and effect when you need a noun. That will work most of the time. But occasionally, affect is a noun and effect is a verb. Confused? Roy Peter Clark will clear things up.

A clinical demonstration in portraying the facts

As advocates, we are called upon to drive home the good facts and soften the bad facts. For a clinical lesson in how to do both, read Ben Opipari’s analysis of subtle bias in a death-penalty article.

Prevision

Writing guru Roy Peter Clark has come up with a great word for the mental work done before putting fingers to keyboard: prevision. It’s the first of three stages in the writing process: prevision, vision, revision. Prevision is “[w]hat to call that period of mental and physical rehearsal that precedes coming to a full understanding of what your story is really about—before you truly ‘see’ the story.”

Me, I spend a majority of my briefwriting time in the prevision stage: digesting the record, researching the law, looking for what pop-song writers call the hook. Why? Because before you hit the road, you’d better figure out where you’re going.

Of headnotes and issue statements

Ernie the Attorney had an interesting post yesterday asking how the headnotes in West digests encourage lawyers to write long-winded sentences. The answer: the headnote authors follow the senseless convention of trying to cram all the pertinent information into one sentence.

Unfortunately, lawyers who read these headnotes often imitate their style. In my world of appellate practice, this pernicious influence most often manifests itself in the issue statements in briefs. You briefwriters out there, please do this: Before you write another long, convoluted, one-sentence issue statement, check the applicable procedural rules to see whether you’re required to do that. If not, then please feel liberated to write a multi-sentence issue statement. Put your premises in the form of declarative sentences. End with a one-clause question, which should have one of these — ? — as its ending punctuation. It’s not hard, folks. All you have to do is write like a human being.