Common Denominators of Effective Legal Writing

The Bencher—May/June 2023

By Katherine M. Lennon, Esquire

The dreaded first redline. So many of us have been there. You graduated law school. You may have received good grades in your legal writing classes. Someone, maybe many people, have told you that you are a good writer. You submit your first written assignment at your post-law school job, and suddenly, edits. A lot of them. Your thoughts jump from, “this must be some mistake” to “this cannot be good for my job.” After all, don’t people say that a majority of issues are decided before any oral argument is made?

Fortunately for all of us, this is a common experience. Legal writing is a temperamental, ever-changing, preference-based aspect of the practice of law. If that is the case, can there be common denominators of effective legal writing? I give you the view of one former law clerk and current fifth-year associate who loves legal writing and has received a fair share of redlines.

Be Concise

This cannot be stressed enough. When you are trying to be persuasive, the last thing you want to do is bury your point. Use the word that fits easily, not the one you think makes you sound intelligent. You will not win the case simply because you used the word “equanimity” instead of the word “calm,” nor will your reader be more persuaded by a 20-word sentence that could have been said in five. To the contrary, you might lose on an issue because the reader is more focused on the complex words you used and deciphering your sentences than appreciating the logic of your argument.

As an added bonus to relaying your argument efficiently, the simplification of your argument signals to your reader that your position is common sense. Ultimately, that is your goal; write the argument that makes the most sense.

Follow Your Own Organization

Oftentimes, a lawyer writes to oppose a document that another lawyer has written. A common pitfall in writing a response is the assumption that you must follow the organization of the document to which you are responding. While it may be a time-saver to adopt the organization of your opponent, there are risks in such an approach.

First, your opponent’s brief might be of substandard, rushed, or poorly organized quality. If you follow your opponent’s lead, you may find that your brief ends up similarly ineffective. In the alternative, your opponent’s brief may be strategically organized to benefit his or her position. Accordingly, you may do your argument a disservice by merely defending against what your opponent wrote.

Take a strategic approach. How can you organize your brief that, again, makes your argument appear to be the most sensical? This may take some extra time. In a busy profession, we tend to want to jump right in to writing, but taking the extra few minutes for organization can take you from merely responding to an argument to making an influential argument all your own.

A Fine Line Between Strong Language and Disrespectful Language

Cases are not won by disparaging the opponent. In fact, you risk losing credibility with the court if you venture from the topic at hand to take a shot at opposing counsel. In a similar way that big words and long sentences can detract from the merits of your argument, so too can making unnecessary remarks. It should go without saying that if you would not say it orally in a courtroom before a judge, then you should not write it in your brief. The judge is more than capable of evaluating a bad argument without you needing to hammer it home with inappropriate comments.

If you have difficulty responding to an argument that you believe is nonsensical without making disrespectful remarks, perhaps remind yourself that motions and cases are lost all the time by lawyers who believe that their argument is the correct one. If that is not sufficient, keep in mind that good reputations take time to make and are easy to lose.

If you are prone to writing emotion-driven responses, I recommend finishing your draft in advance of your deadline, walking away from the document, and reading it with fresh eyes on another day. If time does not allow for a day’s time, walk away for an hour or five minutes. Re-entering the rest of the world, even for a short time, can help you gain perspective. Not only will you catch typographical errors and other mistakes you did not catch the day before, but you may find that you feel less compelled to make snide remarks toward your opponent. I suspect when you look back on your career, you will be more appreciative of the moments you took the high road.

Young Lawyers: Be Resilient. Experienced Lawyers: Be Constructive

It is important for the redline process to be transparent—if time allows, of course. For example: a partner at a law firm asks for an associate’s help on a brief. The partner provides the associate with redline changes without any commentary or explanation. The associate reviews the redlines and sees that the partner changed the word “shoe” to “sandal” in every spot it is referenced. In accepting the change, the associate thinks that the partner is just making changes for the sake of making changes. The partner knows, however, that he made the change because the fact that the plaintiff was wearing a sandal is more persuasive to the contributory negligence defense than would be a shoe generally.

In the above situation, the associate is likely frustrated, and more importantly, has not learned or improved. While taking a few minutes to review the changes can seem like an inefficient use of time in the moment, it should save editing time for the partner in the future and will prevent the associate from spending unnecessary time agonizing on the next assignment. A law practice will be better served by such transparency.

Determine What Works for You

As with many aspects of the practice of law, your personality, preference, practice area, and background may play a role in how you write. That is the art and, dare I say, enjoyable aspect of written advocacy. If you make efforts to be clear, strategic, respectful, and resilient in fielding feedback, and make continued efforts to improve, legal writing can be a powerful tool.

Katherine M. Lennon, Esquire, is a civil litigator at Woods Rogers Vandeventer Black PLC, in Norfolk, Virginia. She is a member of the James Kent American Inn of Court. The views advanced in this article are those of the author alone and should not be mistaken for the official views of Woods Rogers Vandeventer Black PLC.