the (new) legal writer

The right tool for the job

Here is an article I wrote for the Winter 2008 issue of Certworthy about selecting the right font for a writing project. The skinny version:

• For text in briefs, use a book-like font such as Book Antiqua, Bookman Old Style, Century, Century Schoolbook, or Palatino.
• For headings in briefs, use a bold sans-serif font such as Arial or Verdana.
• For e-mail and other documents intended for on-screen reading, use Georgia (for serifs) or Verdana (for sans serif).
• For drafts, use Courier. (That’s right. Courier.) After at least one pass editing in Courier, convert the document to it’s its final-form font. Then edit again.

Counting Each Shot - The Long Version

(A few months ago, I posted Counting Each Shot, contrasting the storytelling techniques of Justices Stevens and Scalia in Atkins v. Virginia. Recently I wrote up a longer version of that post for the DRI appellate newsletter, Certworthy (which I happen to edit). This post is a reproduction of that article. To download a copy of the article in PDF, click here.)

__________

Counting Each Shot

“The difference between direct and indirect writing is the difference between witnessing the murder and finding the body.” Patricia T. O’Conner, Words Fail Me 150 (1999). As writers, we sometimes want to write indirectly, to soften or deflect the harsh facts. Other times, we want to write directly, to confront readers with those harsh facts. For lessons in doing both, let’s compare two passages from Atkins v. Virginia, 536 U.S. 304 (2002), describing the same crime. One is from Justice John Paul Stevens’s majority opinion; the other is from Justice Antonin Scalia’s dissenting opinion.

Suggestions on style

Here is a chapter on writing style that I contributed to a 2004 DRI publication, A Defense Lawyer’s Guide to Appellate Practice. The ideas are not original, but I hope the presentation is.

Download Style (PDF, 131K). Copyright © 2004 DRI and Raymond P. Ward.

DRI still sells the book in CD and paperback forms; you can find it by visiting the DRI bookstore, searching for appellate, and scrolling down the page a little bit. To view the list of contributing authors and the table of contents, click here.

How to write an appellate brief

Nine years ago, I wrote an article for the DRI appellate newsletter, Certworthy, on preparing to write an appellate brief. The idea behind the article is that 90% of the work occurs before the actual writing begins. I attempted to describe the process I normally went through in preparing to write a brief.

Last year, I updated the article for including in a DRI-published book, A Young Lawyer’s Guide to Defense Practice. I added some material to describe the processes of drafting and editing the brief — and making damned sure it gets filed timely. (For more information about the book, visit DRI’s bookstore.)

You can download either version by clicking on the appropriate link below. I don’t offer them as instructions for how you should write a brief, but as descriptions of how I write a brief — techniques that work for me. Different techniques may work better for you.

Download Preparing to Write an Appellate Brief (PDF, 434K). Certworthy, Spring 1998. Copyright © 1998 by DRI and Raymond P. Ward.

Download How to Write an Appellate Brief (PDF, 128K). Copyright © 2006 DRI and Raymond P. Ward.

At Your Fingertips: On-Line Resources for Writers

[Click here for PDF version of this article.]

Every writer needs a good bookshelf full of well-used reference books. The lawyer is no exception. If you do a lot of writing (and what lawyer doesn’t?), then your bookshelf probably holds a good English-language dictionary, a comprehensive legal dictionary such as Black’s Law Dictionary, a citation guide such as the Bluebook or the ALWD Citation Manual, Bryan A. Garner’s A Dictionary of Modern Legal Usage, and other valuable reference books.

Today, in the Internet age, many tools for writers are available on the Web. Though there are still no on-line substitutes for many of the books mentioned above, there are many, many valuable Web-based resources to complement your reference-book collection. Here are a few of my favorites:

Punching up your writing: Advice from the experts

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“Writing is fighting,” Muhammad Ali once said. That’s certainly true of much legal writing. Just as the boxer who punches better than his opponent is more likely to win the fight, legal writing that has more punch is more likely to accomplish its purpose. How then, do we punch up our writing? Here is a collection of tips from the experts.

Noun plague: Breaking the chains

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Fred Rodell once complained that bad law-review writing often “looks as though it had been translated from the German by someone with a rather meager knowledge of English.” Goodbye to Law Reviews, 23 Va. L. Rev. 38, 39 (1936-37). I often think of Rodell’s complaint when reading something full of noun chains.

Typography and Document Design

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Many lawyers disregard typography—how their writing looks on the page. If you’re one of them, you should cure this failing. The U.S. Seventh Circuit reminds briefwriters that for each argument session, a judge must read about 1,000 pages of briefs and related papers. You can improve the chance that the judge will remember what you wrote by making your brief typographically superior. “It won’t make your arguments better, but it will ensure that judges grasp and retain your points with less struggle. That’s a valuable advantage, which you should seize.” United States Court of Appeals for the Seventh Circuit, Requirements and Suggestions for Typography in Briefs and Other Papers, (hereafter Requirements and Suggestions).

Jury instructions

[Click here for PDF version of this article.]

Jury instructions rank among the most important kinds of legal writing. As Professor Kimble has observed, “Lawyers have to live by them, and some defendants may have to die by them.” Joseph Kimble, How to Mangle Court Rules and Jury Instructions, 8 Scribes J. Legal Writing 39, 39 (2001-2002).

Lawyers often pay great attention to the substance of jury instructions, but not nearly enough attention to their form. The result of this neglect: About half the time, the jurors don’t understand the instructions.

Humility

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If there is one virtue that makes a good legal writer, it is humility.

True humility should not be confused with groveling. Humility does not deprecate self while flattering the court. That kind of groveling is usually phony. And when it’s not phony, it’s embarrassing.

True humility is to see yourself as you are. Flannery O’Connor described humility as selfknowledge. “[T]o know oneself is, above all, to know what one lacks. It is to measure oneself against Truth and not the other way around. The first product of self-knowledge is humility ....”

But how does this virtue manifest itself in legal writing? In many ways.