Effective Written Advocacy
The Bencher—March/April 2016
By Judge John R. Stegner
What is effective written advocacy? While I can explain what I think is effective, other judges might not agree with me. Judges are idiosyncratic. What appeals to me may not appeal to another; however, these are the things that I think are important.
“First seek to understand, then to be understood.”—Dr. Stephen R. Covey
Have you ever tried to explain something you didn’t fully understand? If you are like I am, it didn’t go very well. You had to go back and learn more about your topic before you could explain it.
Dr. Stephen Covey, in his Seven Habits of Highly Effective People, writes that this adage is the pinnacle of interpersonal communication. What is written advocacy other than interpersonal communication between a lawyer and a judge? In order to understand your topic, you must first know the facts and understand the law.
I have, on occasion, at a hearing for summary judgment, asked counsel to identify the jury instruction I would give based on the plaintiff’s cause of action. I have heard lawyers say that it is too early to be worried about jury instructions. If a lawyer does not know the specific elements of a particular cause of action prior to a motion for summary judgment being heard, then he doesn’t understand his case. If you want to be understood, you must know your case inside and out. You must be able to describe in cogent terms both the facts and the law and be able to convey how they relate to one another.
Before you Begin, Draft an Outline
We have all been taught to write an outline in advance of writing something substantial. But how many of us actually draft an outline before we write? Briefs sometimes appear to be stream-of-consciousness submissions, rather than careful analysis with logical progression. In order to improve your writing, think about what you want to say and draft an outline. Abraham Lincoln once wrote, “I am sorry to write such a long letter. I didn’t have time to write a short one.” Shorter submissions, as noted by Lincoln, require organization and time. Use simple declaratory sentences.
Many years ago I read an advertisement that made a lasting impression on me. It is the epitome of what I mean by simple declaratory sentences. I have carried it around for years. My wife, Laurie, an English teacher, has a copy hanging in her classroom. The ad, Keep It Simple, appeared in The Wall Street Journal in 1979, and is reprinted here in its entirety:
Strike three. Get your hand off my knee. You’re overdrawn. Your horse won. Yes. No. You have the account. Walk. Don’t walk. Mother’s dead.
Basic events require simple language. Idiosyncratically, euphuistic eccentricities are the promulgators of triturable obfuscation.
What did you do last night? Enter into a meaningful romantic involvement or fall in love?
What did you have for breakfast this morning? The upper part of a hog’s hind leg with two oval bodies encased in a shell laid by a female bird or ham and eggs?
David Belasco, the great American theatrical producer, once said, “If you can’t write your idea on the back of my calling card, you don’t have a clear idea.”
The acronym for Keep it Simple, Stupid, KISS, is a good way to think of legal writing. If you can distill an idea to its essence and then communicate that essence, you will have distinguished yourself as a writer. According to Antoine de Saint Exupery, “It seems that perfection is reached, not when there is nothing left to add, but when there is nothing left to take away.”
There is, however, a warning about keeping it simple and it comes from Albert Einstein, who said, “Everything should be made as simple as possible, but no simpler.” I have seen briefs in opposition to a motion for summary judgment that are under two pages in length. In those cases, when summary judgment is denied, it is because I have done my job, not because the lawyer did his.
We are all familiar with the phrase: “Comes now the plaintiff by and through his counsel of record and prays for a cause of action as follows.” Isn’t it clearer and better to say, “The plaintiff claims the following”? My daughter, Sarah, had a friend in college who had a bumper sticker that read, “Eschew Obfuscation.” While it is funny, it is also apt (as long as you don’t use eschew or obfuscate in your legal writing). I know lawyers who use legalisms as a badge, as if to show membership in the legal fraternity. I, on the other hand, prefer common, ordinary language. It is hard to employ simple declaratory sentences through legalisms. (Think: “party of the first part,” “hereinafter,” “heretofore.”)
“Use a high-powered rifle, not a scattergun.”—Judge Ronald D. Schilling of the Idaho Supreme Court
In law school I was taught that no issue, even if it was small or seemingly unimportant, should be conceded. The thought was that you could never tell which issue a judge might seize upon to side in your favor, so you should include every possible issue in whatever you do. If you don’t learn anything else from reading this article, learn this: That concept is pure hogwash. Every issue is not equally important. Some are critical to your case. Focus on those, not the minor ones. As Judge Ronald D. Schilling of the Idaho Supreme Court used to say, “Use a high-powered rifle, not a scattergun.” If you use a shotgun to address all the issues, you will dilute those that are pivotal. You may think all the issues you are dealing with are equally important. I can assure you, they are not.
Here’s an example. In the first case, I get a brief in which one issue is addressed; in the second, I get a brief in which ten are addressed and each is given an equal amount of attention. In the former, I know that one issue is important. In the latter, I cannot tell which are truly important and which are incidental. I will do my best to decide all ten correctly. Nevertheless, the writer of the second brief has not helped me identify what is essential to the case. I think this adage is especially apt on appeals. Focus on what is really important and let the minor issues go.
I practiced with a lawyer who used the phrase, “knee-jerk adversarial reaction.” In the practice of law, we are reactionaries. We oppose a motion merely and solely because our adversary wants it. Our rationale is that if our adversary wants it, we not only can, but should, oppose it. My former partner said you should ask yourself two questions before you fall prey to the “knee-jerk adversarial reaction.” The first question is: Does it hurt my client? The second question is, Can I oppose it and win the motion? If your answer to either question is no, then ask yourself, why oppose the motion? If you cannot come up with affirmative answers to both questions, you ought to focus on something important. The message I’m trying to get across is that even though this is an article about written advocacy, sometimes your best choice is to not file a written response.
Write in Your Voice
My daughter, Elizabeth, recently traveled to Cuzco, Peru, to do some volunteer work. Here is an excerpt of one of her emails to her mother: “Hannah and I went on a walk earlier to find water and a bank and went through the market where there was a basket of chicken heads. For sale. To eat. Well, I think that is about it.” My daughter broke a cardinal rule of writing in this email. She used sentence fragments instead of complete sentences. Yet, her writing is vivid. Most legal writing is formulaic. Subject, verb, object. Don’t be afraid to use the power of your voice when writing. Don’t be afraid to violate the conventional to make an impact.
Pay Attention to Details
I routinely see misspellings and grammatical errors in pleadings and other documents. I even see some in my own written opinions. Do I like it when I see them? No. Does my blood pressure increase when I do? Yes. Would I prefer never to see an error? Absolutely. Do I strive to issue opinions (and letters, for that matter) that are error-free? Unquestionably. Take pride in your written work. Strive to submit only that which is error-free. If you don’t pay attention to the details, it will be obvious to everyone who reads your work that you are a sloppy lawyer. Much of what we do as lawyers is detail-oriented. Crossing “Ts” and dotting “Is” is not scut work. It is how we distinguish ourselves from other lawyers.
Rewrite, Revise, Edit
A writer I admire once told me that all good writing is rewriting. Take that admonition to heart. While it is critical to have a first draft, it is in revising that draft that the murky becomes clear, and the obtuse becomes pointed.
Enlist Others to Read and Critique Your Work
I sometimes ask my wife, the English teacher, to read my writing. (In fact, she read this document for me and I am indebted to her for her assistance.) When you ask others to read your work, the chances are it will improve. Sometimes I think something I have written is clear until it is read by someone on my staff. I hope everyone in my office feels comfortable telling me when something isn’t clear. If they don’t, I have missed out on an opportunity.
We, as lawyers, sometimes feel as if we are the only members of the club and the language we use is only for our benefit. The best writing I see is accessible to a broad range of people, not only lawyers and judges. I don’t mean you should dumb down your submissions (although you might improve your odds by doing so). Effective prose is not something unique to our profession. When you have your work edited by others—especially those not in the legal profession—the chances that it will be understood by your audience go up.
Use the Active Voice
I think we have all had drilled into us the advice to use the active voice. I now infrequently see the passive voice when the active should be employed. Nevertheless, I think it’s important to remind lawyers that use of the active voice is more compelling. In order to write in the active voice, the subject of the sentence performs the action. In the passive voice, the subject does not perform the action. An example of the passive voice is the following sentence: “The letter was mailed by John.” To transform the sentence to an example of the active voice, the subject, John, and the direct object, the letter, are reversed and the verb is modified to reflect the change: “John mailed the letter.” Normally, you should choose the active voice over the passive.
Judge John R. Stegner, of the Idaho Second Judicial District Court in Moscow, Idaho, is a member and past president of the Ray Nichols AIC.
© 2016 Hon. John R. Stegner. This article was originally published in the March/April 2016 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.