the (new) legal writer

Using grammar to play up the good and play down the bad

The New York Times has an interesting article about how Texas school textbooks use grammatical structure when talking about the history of slavery, to emphasize the less-bad parts and de-emphasize the worse parts. The short version: To play up the good, write sentences in the active voice, with real people as the subjects and real verbs. To play down the bad, use passive voice and hide your verbs in nominalizations.

For an older article on the same topic, follow this link.

Lessons in paragraph building

Here are links to two articles by Stephen V. Armstrong and Timothy P. Terrell on “the art and architecture of paragraphs,” published in the two most recent issues of Perspectives:

• Part I: Focus
• Part II: Flow

Whether you’re a novice legal writer needing sound advice or a veteran needing a refresher, these articles are worthwhile.

For lovers of parentheticals, two articles

What converts a string of case citations into a persuasive tool? A parenthetical phrase or clause following each citation, stating exactly how the case supports the point being made. We’ve all seen parentheticals, and many of us use them in brief-writing. But I have not seen scholarly attention paid to parentheticals until I recently came across these two articles:

• Michael D. Murray, The Promise of Parentheticals: An Empirical Study of the Use of Parentheticals in Federal Appellate Briefs (September 24, 2013). Legal Communication & Rhetoric: JALWD, Vol. 10, 2013. Available at SSRN: http://ssrn.com/abstract=2330555. Prof. Murray analyzes how parentheticals are actually used in briefs to extract the techniques used by the brief-writers.


• Eric Voigt, Explanatory Parentheticals Can Pack a Persuasive Punch (October 14, 2013). McGeorge Law Review, Vol. 45, 2013, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2340202. Prof. Voigt illustrates how parentheticals can be used and gives seven guidelines for writing good parentheticals.

I often use parentheticals for inductive persuasion: stating the point that I want to establish, then providing a list of cases from which the point is drawn. The parenthetical tells the reader exactly why the case supports the point.

What can brief-writers learn from movie trailers?

The current issue of Legal Communication and Rhetoric includes an interesting article by Prof. Steven Johansen of the Lewis & Clark Law School. In Coming Attractions: An Essay on Movie Trailers & Preliminary Statements, Steve analyzes how movie trailers entice us to watch the movies they tout, and how brief-writers can apply those same techniques in writing preliminary statements.

Mark Herrmann on keeping your client-editor happy.

Every writer needs an editor. Every good writer knows this. So every good writer welcomes comments and suggestions from a thoughtful, knowledgeable editor. And when the editor happens to be your client’s in-house counsel, any lawyer-writer with half a brain will want to make that editor enjoy the relationship—enjoyment will lead to more work. (Bonus: If the editor enjoys the relationship, chances are that the lawyer-writer will enjoy it too.)

So how can the writer make the writer-editor relationship more enjoyable? Mark Herrmann has some ideas about that. So take a look at his recent article, A Tale of Two Edits. I’ve been on both sides of the writer-editor relationship. From that perspective, I think Mark is on to something.

Mark blogs regularly at Above the Law, where he often writes about the kind of writing that pleases clients (or at least the good ones), and the kind that doesn’t. He is also the author of The Curmudgeon’s Guide to Practicing Law—if you haven’t read that one yet, you should.

Latest issue of Legal Communication & Rhetoric: JALWD

The Fall 2012 issue of Legal Communication & Rhetoric: JALWD is out. If you didn’t get a hard copy in the mail, don’t worry; all the articles are available online. For a run-down on the contents, read the preface.

If you’re interested in the controversy over the Patient Protection and Affordable Health Care Act (a.k.a. Obamacare), then have a look at Ken Chestek’s article, Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions. Prof. Chestek examines the trial-court briefs in the various legal challenges against the Act and the resulting decisions in those challenges. He concludes that, contrary to the conventional wisdom, the decisions may not have been based on the judges’ respective political leanings, but on the competing stories presented in the parties’ briefs.

How to write a judicial opinion

Whether or not you’re a judge, check out Judge Gerald Lebovits’s new article, Twenty Opinion-Writing Myths. Although Judge Gerry aims his article at judges, many of its tips apply to briefwriting too.

Cite right.

Harry Steinberg has a worthwhile article in the New York Law Journal, The Fine Art of (Persuasively) Citing Cases. Harry focuses his article on New York practice, but many of his tips apply to briefwriting in any American court.

For courageous writers: Writer’s Diet

Are your prose lean or flabby? If you really want to know, put them on the Writer’s Diet, an on-line test cooked up by Helen Sword. Just copy and paste some of your writing into the little box, run the test, and get back the kind of information about your writing that your doctor gives you about yourself when you get your annual physical.

Speaking of Helen, check out her article in the NYT about nominalizations.

On the crafting of sentences

The New York Times has an interesting article by Constance Hale on crafting sentences.