Attorney Tip #10 . . . Legal Consumer Tip # 7 – Better Brief Writing

Last week we posted a tip for attorneys about brief writing.  This week, we stumbled upon an article by Bryan Garner providing tips for “better” brief writing.  On October 1, 2014, Mr. Garner wrote an article for lawyers in the ABA Journal titled, “10 Tips for Better Legal Writing.”  Mr. Garner’s tips are also helpful to legal consumers who are writing their own court filings or reviewing those their attorneys draft.  Here are Mr. Garner’s 10 tips:

  1. Be sure you understand the client’s problem. When given an assignment, ask plenty of questions. Read the relevant documents and take good notes. Learn all you can about the client’s situation.
  2. Don’t rely exclusively on computer research. Combine book research with computer research. Don’t overlook such obvious resources as Corpus Juris Secundum and American Jurisprudence. . . . And when it comes to computer research, don’t forget Google Books (especially the advanced-search function): It can open up a great variety of fresh resources in addition to what you find with Westlaw or Lexis.
  3. Never turn in a preliminary version of a work in progress.
  4. Summarize your conclusions up front. . . . [Y]ou’ll need an up-front summary. That typically consists of three things: the principal questions, the answers to those questions and the reasons for those answers. If you’re drafting a motion or brief, try to state on page one the main issue and why your client should win—and put it in a way that your friends and relatives could understand.
  5. Make your summary understandable to outsiders. . . . . So don’t write your issue this way: “Whether Goliad can take a tax deduction on the rent-free space granted to Davidoff under I.R.C. § 170(f)(3)?” That’s incomprehensible to most readers because it’s too abstract and it assumes insider knowledge. . . . You’d be better off setting up the problem in separate sentences totaling no more than 75 words: “Goliad Enterprises, a for-profit corporation, has granted the Davidoff Foundation, a tax-exempt charity, the use of office space in Goliad’s building free of charge. Will the Internal Revenue Service allow Goliad to claim a charitable deduction for the value of the rent-free lease?”  Then provide the brief answer: “No. Section 170(f)(3) of the Internal Revenue Code disallows charitable deductions for grants of partial interests in property such as leases.”
  6. Don’t be too tentative in your conclusions, but don’t be too cocksure, either. . . . Even experienced lawyers sometimes hedge needlessly. This approach can look wishy-washy. What’s wanted is your best thought about how a court will come down on an issue.
  7. Strike the right professional tone: natural but not chatty.
  8. Master the approved citation form. Find out what the standards are for citing authority in your jurisdiction. In California, lawyers follow the California Style Manual. In New York, they should (but frequently don’t) follow the New York Law Reports Style Manual. In Texas, every knowledgeable practitioner follows the Texas Rules of Form. Other states have their own guides. And, of course, The Bluebook and the ALWD Guide to Legal Citation are widely used as defaults (and sometimes required by court rules).
  9. Cut every unnecessary sentence; then go back through and cut every unnecessary word. Verbosity makes your writing seem cluttered and underthought. . . . The late Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit was a stickler for super-tight prose. Once, when his student clerk, Eugene Gelernter (now a New York City litigator), brought him a draft opinion, the great judge said: “Nice draft, Gene. Now go back and read it again. Take out every paragraph you don’t need, then every sentence you don’t need. Then go back and take out every word you don’t need. Then, when you’re done with that, go back and start the whole process all over again.” We should all have such a mentor.
  10. Proofread one more time than you think necessary. If you ever find yourself getting sick of looking at your work product and starting to do something rash such as throwing your hands up and just turning it in at that moment, pull yourself up short. Give it a good dramatic reading. Out loud. You’ll still find some slips and rough patches—and you’ll be glad you did. Better that you find the problems than your readers do.

Good brief writing is a skill that can and should be continually honed.  Clear, concise, well supported, powerful writing is persuasive, and Mr. Garner’s tips provide a solid roadmap for attorneys and legal consumers alike.

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