the (new) legal writer

Do stories really persuade?

Many good CLE programs for litigators include panels of judges, who tell the attending lawyers the kinds of argument and behavior that judges like to see or don’t like to see. I appreciate these opportunities, since judges are the people I’m trying to persuade. But I’ve often wondered whether these presentations are answering the right question. While I want the judges to like me, I want even more to win. And I’ve wondered whether what judges like is really the same as what persuades them.

So I salute Prof. Ken Chestek of the Indiana University School of Law.¹ He recently conducted a study, trying to determine empirically whether a brief with an element of storytelling is more persuasive or less persuasive than a purely logical, law-driven brief—one that omits the interesting but perhaps legally irrelevant story. He published the results of his study in an article that you can download here. Although (as Prof. Chestek acknowledges) the sample size may be too small to draw definitive conclusions, the study’s results suggest that storytelling makes for a more persuasive brief.

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¹ Another reason I salute Prof. Chestek is that he is a man who supports his home team and honors his bets. For that story, visit Legal Writing Prof Blog.

The vampires of legal writing

I’ve been known to preach against over-reliance on forms, because the practice tends to perpetuate bad legal writing. The following article (PDF version here) is my latest word on the topic.

Counting Each Shot: The FTD Version

Here is an article of mine, recently published in the November 2008 issue of For the Defense. The title is Counting Each Shot: Techniques for Emphasis and De-emphasis. The lesson is how to use the structure of a written piece to play up or play down the facts.

This article started out as a blog post. From there, it evolved into a short article for the DRI Appellate Advocacy Committee newsletter, Certworthy, Summer 2007 issue. Now it’s become a longer article for FTD’s larger audience. I guess this is an example of how blogging can help a writer record an idea when it happens, and later develop the idea into something suitable for paper publication.

More effective e-mail

Here is an article I wrote for the DRI magazine, For the Defense, on writing more effective e-mail. As you’ll see from reading it, Lynn Gaertner-Johnston deserves credit for some of its ideas. Lynn writes a blog called Business Writing, a must-read for lawyers and others whose jobs involve any sort of writing, and e-mail is one of her frequent subjects.

You can test your proofreading eye by finding the mistakes in the PDF. Happy hunting.

(To download a PDF file of this article, click here.)

Ideas, anyone?

The DRI magazine, For the Defense, runs a regular feature called “Writer’s Corner,” a one-page column on legal writing, written by a different contributor every month. I’ve written several of them over the last few years,¹ and I’m scheduled to write it again for an upcoming summer issue. The deadline for my draft is May 30.

There’s just one problem: I have yet to think of a topic. But rather than rack my brain thinking of one, I thought I’d ask the largest group of legal-writing devotees I can find in one place—you—for some ideas. The topic must be something that: (1) can be covered in 900 words; (2) has not been covered in a recent “Writer’s Corner” column; and (3) I know enough about to write an original column.²

So if you have an idea, please leave a comment. Thanks.
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1. To read some of my past Writer’s Corner” columns, click on the Articles by me link under the Categories heading at right.
2. Yes, I know I messed up my parallel construction with that third item. But at least it fits grammatically with what precedes the enumeration.

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.)

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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: