GREAT WRITING: Legal writing is a conversation. All briefs talk. But great briefs also listen.

 

The written word lays the groundwork for any courtroom victory. Because of that, every Fisch Sigler lawyer is a student of great writing. Here, our team members share some of their favorite insights.

 
 
Kate Ryland on writing with the goal of connecting, not impressing
 

Ever find yourself stuck listening to a self-absorbed person? It can be painful, right? They’re so concerned with themselves that they ignore the needs of others in the conversation. You often encounter the same personality when reading legal writing — some writers work so hard trying to impress that they forget the goal is to connect with the reader. Just like the self-absorbed talker, the self-absorbed writer ends up dismissed, ignored, and reviled — ironic, to be sure. If you achieve your goal of connecting, you’ll impress as a by-product. And one of the best ways to connect is using simple words, like near, in place of more complex words, like in close proximity.
 
Meet Kate
 
 
Ken Fung on avoiding long sentences
 

Each word of a sentence adds to the sentence’s mass. When that mass grows too large, it interferes with the idea’s readability and interest, ultimately undermining its persuasiveness. So how big is too big? I’ve long used a 20 word-limit. This doesn’t mean every sentence should be 20 words, but rather that no sentence should exceed 20 words. While 20 may appear arbitrary, it’s not — readability experts’ testing produced this number. So leave 21 for card games, as 20 or below is the magic number for brief writing.
 
Meet Ken
 
 
Bill Sigler on avoiding the looooong wind-up
 

Don’t bury the lede. As a former journalist and current lawyer, I can tell you that this tenet applies equally to legal writing. Judges and clerks deal with dozens of cases and multitudes of submissions each day. So when your brief flashes before their eyes, you better make sure you tell them why you should win, and quickly. If you do so, you’ll distinguish your brief as among the rarified few that doesn’t begin with the all-too-typical unnecessary background, repetitive introductions, and other throat-clearing.
 
Meet Bill
 
 
Lisa Phillips on a strong finish
 

The best stories have great endings. And briefs are no different. That’s why it’s a shame that so many submissions end with a one-sentence conclusion asking the court to act for "the foregoing reasons." Instead, I favor concluding with a meaningful ending — one that capsulizes the specific reasons for why the court should do what I’m asking. I urge others to do the same, and take advantage of the opportunity to finish strong.
 
Meet Lisa
 
 
 
Jeff Saltman on the answer to Hamlet’s question: it’s not "to be" — Use active verbs instead
 

Every story needs not only characters, but also action. Verbs provide that action. They make the story go. "To be" verbs, though, lack action; they feel almost inert. Thus, treat is, am, was, were, will be, have been, and so on as a last resort. Try identifying each "to be" verb in your draft, and replace it with a stronger verb. The English language offers an almost never-ending supply of such verbs. So use them, and swap inaction for action.
 
Meet Jeff
 
 
Ken Fung on a little word that causes big bloat
 

It’s hard to believe that a simple, two-letter word like "of" can bloat your writing. But it’s true. For instance, you may see a brief refer to "the Chief Engineer of the Mobile Division of the Defendant." But I can communicate the same information in four fewer words: "the Defendant’s Mobile Division’s Chief Engineer." Bloat is an enemy of interesting story telling. Editing out "of" and other unnecessary prepositions is a useful tool for polishing your writing into its most interesting and precise form.
 
Meet Ken
 
 
Matt Benner on starting sentences with "and" and "but"
 

At some point in our lives, we were told that you can’t start a sentence with "and" or "but." Well, whoever told us that was wrong. You should begin anywhere from one fifth to one third of your sentences with these short, snappy connectors, along with others such as "so" and "hence." These handy words allow you to better link each sentence to the directly preceding and subsequent sentences, and thus help you lay a smooth path for the reader to follow.
 
Meet Matt
 
 
Nick Garver on lightening the load by eliminating heavy connectors
 

Notwithstanding the fact that, inasmuch as, and in contradistinction. These aren’t phrases you’d expect to read in the newspaper or hear on "All Things Considered." But far too often, these types of long, heavy, and difficult transitional words and phrases dominate legal writing. So while strong persuasive writing requires helpful transitions, you can better serve your reader by casting these heavy connectors aside in favor of lighter words and phrases that convey the same meaning. So, "notwithstanding the fact that" becomes "although," "inasmuch as" becomes "since," and "in contradistinction" becomes "instead of."
 
Meet Nick
 
 
Adam Allgood on the importance of self-editing
 

Ernest Hemingway rewrote the last page of A Farewell to Arms 39 times. Why? Well, he explained to an interlocutor, he was focused on "getting the words right." To make your legal writing great, you must approach it with this same passion for excellence and blue-collar work ethic. That means revising your draft again and again until it’s just right. So before you submit a brief, letter, or report, be your own best self-editor.
 
Meet Adam
 
 
 
Lisa Phillips on the "However Sandwich"
 

When I want to use the next sentence to contradict the thought in my prior sentence, I don’t start with "however." That connector is a strong one — so strong that it can be jarring for the reader. Instead, I sandwich "however" within sentences and use the smoother "but" transition when I want to begin a sentence by refuting the last sentence. So, for example: "Patent actions at the ITC find their basis in 35 U.S.C. § 1337. Practitioners, however, refer to these more simply as 337 Investigations." This sandwiching technique uses all the flavor of the tasty bit in the middle.
 
Meet Lisa
 
 
Nick Garver on avoiding legalese
 

"COMES NOW Vandelay Industries, Inc., Plaintiff in the above-captioned matter ("Plaintiff"), and submits this opposition to the Motion to Dismiss of Defendant Penske Corporation ("Defendant") …" Many briefs begin with a jumble of "legalese" like this one. But resorting to such complex, stilted jargon runs counter to the results of countless judicial surveys. And I know that I didn’t appreciate picking up a brief that started this way when I was in chambers. So listen to your audience, and eliminate any words or phrases that sound like jargon. This will lend your writing a more plain, direct, and conversational style.
 
Meet Nick
 
 
Joe Edell on using a single space, not two, after a period
 

The manual typewriter ushered in an entirely new way of doing business over a century ago. And with it came new products like inked ribbons and liquid paper, and new ideas like using two spaces after a period. The typewriter has since vanished from desktops and inked ribbons and liquid paper ceased being an office necessity around the Reagan Administration. But two spaces lived on, in large measure out of habit in the transition to word processing. Habit is no reason to maintain this relic of 100-year-old technology. One space is simpler, cleaner, and shorter, which, as every judge will tell you, is always better.
 
Meet Joe
 
 
 
Ken Fung on enhancing your position by eliminating "clearly" and "obviously"
 

As a mathematician, I know that showing my work is the optimal way to prove that I’m right. The same holds true for brief writing — show your work. Bullying the reader into reaching a conclusion by using words like "clearly" and "obviously" is no way to persuade. Instead, let your reader draw their own conclusion that your point is clear and obvious. So leave "clearly," "obviously," and their "ly"-word brethren behind in favor of sharing the law and evidence proving you’re right.
 
Meet Ken
 
 
Matt Benner on avoiding substantive footnotes
 

You see it in survey-after-survey of judges, I didn’t enjoy them during my time as a judicial law clerk, and you’re starting to see specific mention of it in some standing orders: judges dislike substantive footnotes. This is understandable. Substantive footnotes are distracting, or, even worse, an attempt to circumvent page limitations — neither of which ingratiates a brief to its primary audience. If an argument is important enough to express in your brief, then put it in the body. If it’s not, then remove it altogether.
 
Meet Matt
 
 
Kate Ryland on eliminating "gratuitous" quotations
 

Great legal writing avoids even the risk of ambiguity. Actual quotations from the law and evidence help reduce ambiguity. But during my time in chambers, I read plenty of briefs that employed a technique that invited ambiguity — using quotation marks for non-quotations, such as in describing the other side’s arguments. Was the author trying to express sarcasm? Importance? Disbelief? Informality? All of these? None of these? Serve your reader by avoiding the ambiguous signal of quotations and instead use words to specifically express your ideas and supporting data.
 
Meet Kate
 
 
 
Bill Sigler on learning from the Declaration of Independence
 

The Declaration of Independence is perhaps western civilization’s most significant document. It marked a sea change in human history. But one element of the Declaration is often overlooked: the simplicity of its exposition. It avoids jargon and uses less-common words only out of necessity to communicate specific points. Thus, this great document’s power lies not just in its ideas, but in its accessibility. In the end, it connects and teaches. Great legal writing follows this wonderful example, rejecting jargon and resorting to more-complex language only where absolutely necessary. Anything less than this distracts at best, and signals a deliberate attempt to obfuscate at worst. We can hold this truth to be self-evident, then: not all words are created equal, so use the right ones for the job.
 
Meet Bill
 
 
Adam Allgood on using concrete data
 

As an author of persuasive writing, your goal is to make it easy for your audience to agree with you. To do that, remember that your audience wants to, and indeed likes to, learn. And readers principally learn through absorbing facts. Therefore, the more precise data that you present in support of your arguments, the better. The concrete, objective data always beats the abstract.
 
Meet Adam
 
 
Alan Fisch on taking the high road
 

Litigation is a race for credibility. Generation after generation of great trial lawyers have passed down this time-honored maxim. And one sure way to lose credibility is by resorting to bombast and personal attacks. Such statements demean the author, not the target. And judges repeatedly express their fatigue with this type of writing, and for good reason — it’s distracting and unhelpful in determining how to apply the law to the facts. Leave the bombast and personal attacks out, keep to the high road — no one has ever gotten lost on it.
 
Meet Alan