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There’s a crisis of inattention in the modern world. We’re all surrounded by electronic devices that sound off continually, requiring—or seeming to require—our immediate attention. We end up concentrating for five or ten seconds before mentally resting a bit until the next surge of attention is required (or seemingly required). Scientists say that we’re all “cognitively busy.” But really we’re cognitively scattered. People have made scatter-brained. The modern attention span is doubtless shorter than ever.
Ernest Hemingway once said in an interview, “You can write anytime people will leave you alone and not interrupt you.” It’s true. If you’re a writer, you must arrange time when people will leave you alone and not interrupt you. The biggest key to writing is to apply your seat to the chair, when nobody else is around, and to write.
Having nobody else around includes silencing your smartphone and turning off popup notifications. A real writer needs time to contemplate and compose in silence.
Garner on Language and Writing 4–14 (2009).
Legal Writing in Plain English 7–16 (2d ed. 2013).
Making Your Case: The Art of Persuading Judges 80–81 (2018).
The Winning Brief 60–62 (3d ed. 2014).
Try this when revising: Mark your changes on a hard copy—in ink. Then enter your changes yourself. You’ll find that merely touching the keys sharpens your thoughts. You’ll be making more revisions as you go, especially toward an appropriate copiousness of thought. You’ll cut later, to be sure, but one aspect of early revision is to ensure that you haven’t left ideas underdeveloped.
Over the past two weeks, we’ve seen that the first two criteria in assessing the quality of motions and responses are to examine page 1 and the point headings. Now for the third.
Step 3 is the fresh conclusion. It should be a short, punchy summary that doesn’t merely repeat what’s been said before. It should be a freshly written closer that keeps the reader’s interest. It should be fully comprehensible on its own.
That’s the way it should be. But it hardly ever is. Most conclusions are rote sentences that simply send the reader back to the middle part of the motion (“For all the foregoing reasons,” or “Wherefore, premises considered”). Those are the closing words beloved of so-called “generic lawyers.”
What percentage of motions and responses do well when judged by this standard for gauging conclusions? Less than 3%.
What?! You’re offended? Please don’t be. I didn’t call you a generic lawyer. Perhaps I just suggested that you might have a bad habit you should think about breaking.
Legal Writing in Plain English 71 (2d ed. 2013).
Making Your Case: The Art of Persuading Judges 37–38, 100–01 (2008).
The Winning Brief 143–47 (3d ed. 2014).
Last week, we saw that the first step in assessing a motion’s quality is to examine the form and content of the first half-page of prose. Now for the second step.
Step 2 is to examine the point headings. Make a list of them. Look at the headings in the order in which they occur. Do they proceed logically? Are they concrete? Are they 15 to 30 words long—and always complete sentences? Are they typed as sentences, in downstyle (lowercase sentence style)? Do they progress from stating the applicable standard to marshaling the crucial facts to showing that the standard has or hasn’t been met? Is the third or fourth point heading devoted to answering the most obvious counterargument?
Or, by contrast, are the headings by a so-called “generic lawyer”? Are they set in initial caps or all caps? Are some of them just phrases instead of sentences? Are they too abstract to be fully comprehensible? Do they require the reader to read the full text just to understand what the headings mean?
What percentage of motions do well when judged by these standards? Less than 5%.
Next week: step 3.
Legal Writing in Plain English 20–22 (2d ed. 2013).
Making Your Case: The Art of Persuading Judges 108–09 (2008).
The Winning Brief 403–22 (3d ed. 2014).
Judges often lament their inability to grade motions* (and responses to motions) in addition to declaring winners and losers. To be sure, a C or D motion sometimes wins—because it’s not uncommon to have lackluster briefing on both sides. In fact, that’s the rule, not the exception. But a well-written motion saves the court’s time and can help bring you a win. Trust me: judges hate motions that waste the court’s time.
This is the first in a three-part series about how to evaluate the quality of a written motion.
The first criterion has to do with page 1. Are the first few lines devoted to stating the problem to be decided by the court in a cool, logical way, shorn of all inflammatory words and invective? Is it businesslike and economical, stripped of legalistic folderol? Is it an example of good exposition: does it explain the problem in a way that almost any reader could readily understand? Will the experienced legal reader instantly recognize that you’re no ordinary lawyer who apes all the others? Does the prose suggest the style of a writer whose work will make for enjoyable reading?
Page 1 is the most valuable real estate you have. If you waste it on 19th-century legalistic “pleasantries,” on lots of parenthetical shorthand phrases for obvious names, or on insults directed to your adversary, you’re being ineffective.
What percentage of motions do well when judged by these standards? Less than 5%. I’ve polled my judicial audiences on this question many times, and the consensus is always about the same.
This is the first step in assessing the quality of a motion. Next week: step 2.
*In using motion, we include the memorandum in support that is commonly used in many jurisdictions.
Garner on Language and Writing 108–10, 114–16, 120–23 (2009).
Legal Writing in Plain English 73–76 (2d ed. 2013).
Making Your Case: The Art of Persuading Judges 83–88 (2008).
The Winning Brief 77–93 (3d ed. 2014).
Shortly before he died last month, Charles Krauthammer, the illustrious political commentator, gave an interview in which he discussed his writing process. Just as we do in LawProse seminars, he emphasized the architecture of writing:
“You write a column, an essay, anything: if you get the structure wrong, you’ll never get it right. You’ll spend hours whacking your way through the weeds with a machete, and you won’t be able to escape the marsh.”
Krauthammer’s method of producing a first draft was unremarkable—he simply dictated it into a tape-recorder. The key to good dictation, of course, is having the outline first. He always had that covered.
No, the remarkable thing about his process was what happened after he had a complete draft:
“I spend four or five hours editing the text. I go through it 15 times from beginning to end—cleaning, sanding, polishing, just like a clay ornament—until I get it right. Then I sleep on it. That’s the best part. Then I wake up in the morning and spend an hour because by then, I discover 15 egregious errors or wrong ways I’d put things.“
That’s a total of five or six editing hours for a column of usually under 1,000 words. Maybe that’s surprising only to people who aren’t professional writers. For those devoted to the craft, that amount of editing time seems quite normal.
What’s really great about Krauthammer’s statement is that in just six sentences, he summed up an excellent regimen for producing lapidary prose.
Further reading: The Elements of Legal Style 218–19 (2d ed. 2002). HBR Guide to Better Business Writing 31–32 (2012). Legal Writing in Plain English 162–64 (2d ed. 2013). Making Your Case: The Art of Persuading Judges 80–81 (2008). The Winning Brief 68–70 (3d ed. 2014).
In any good argument, it’s important to refute the obvious counterarguments that would naturally occur to an intelligent reader—even when you’re the first to argue. Why? Three reasons. First, doing so shows your readers or listeners that you’ve thought through the issue. The problem will have occurred to the judge, who may well view you with some skepticism if you don’t address it. What else are you trying to hide?
Second, addressing your weak points first will make your stronger points harder for your adversary to overcome: if you’re successful in demolishing counterarguments, your adversary will either abandon them or drone on about them anyway.
And third, the very fact of engaging in dialectical reasoning just makes your discourse that much more interesting.
Where should you refute? If you’re the first to argue, you should do it toward the end of the middle part of your argument: you don’t want the arguments you’re refuting to appear either first or last. But if you’re the second to argue, the answer depends on how much you’ve been damaged by your adversary. If you’ve taken a serious hit, the undercutting must be immediate and powerful. If you’ve been damaged negligibly or not at all, just proceed as you would if you were the first to argue.
To see the structural position of undercutting at work, study the many annotated tables of contents from first-rate briefs in The Winning Brief. Better yet, to learn more about this strategy and many others, sign up for the summer webinars based on The Winning Brief.
Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 55–59 (3d ed. 2014).
Garner, Legal Writing in Plain English 104–05 (2d ed. 2013).
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 15–18 (2008).
In this space, you’ve seen explanations of how to prepare good point headings, which are exceedingly rare. Three of the 100 tips in The Winning Brief illustrate first-rate point headings—which should be complete sentences set down-style (not in initial caps). More than 20 tables of contents from winning briefs appear as examples of how to frame them most effectively—the majority from the U.S. Solicitor General’s Office filings.
The most recent issue of Litigation magazine has Bryan Garner’s grades for point headings in U.S. Supreme Court briefs for the 2016 term—the grades ranging from A to D. Yes, some well-known Supreme Court practitioners receive Cs and Ds in the piece. Have a look here.
To learn more about point headings, as well as innumerable other subtleties that affect persuasiveness, sign up for the summer webinar sessions of The Winning Brief. Sign up yourself, and sign up your whole team with inexpensive secondary licenses. The courses will help you become more efficient and more effective as a brief-writer. No matter how good you may think you already are, you can transcend your current practices. We think you’ll want to watch again and again.
That’s the answer to the question, What quality do most legal writers lack? Communicative fervor. To get your point across, you must ardently want to do so. Passionately. Fervently. That means understanding how readers will see the message—and this in turn requires psychological insight. It’s no mean feat to be understandable to others. Look at the opening paragraphs of your last brief, in the cold light of whatever time has passed since you filed it. Read it as a stranger might. That’s how you can begin to assess its communicative effectiveness. Read it as if you were someone else—someone unfamiliar with the dispute in which you’ve become embroiled. At the outset have you stated the problem clearly to this stranger? Coolly and without disparagement of your adversary?
There are many, many aspects to communicative fervor. Bryan Garner explores them all in his acclaimed book The Winning Brief. This summer, he comes to your desktop in ten sessions to teach all 100 sections of The Winning Brief. Of course, don’t bother with the webinar if you don’t have the time or inclination to improve your communications with judges.
But if you want to be more effective in your motion practice and appellate briefs, sign up here—and now. No matter how seasoned and skilled you already are, you’ll pick up enough new pointers that you’ll kick yourself for not getting them sooner.
Don’t quote dictum without noting that it’s dictum.
Of all the problems in jurisprudence, one of the trickiest can be distinguishing between a court’s holding and its dictum. It often takes a close inspection of the court’s writing to make that distinction. Essentially, a holding is an appellate court’s determination of a matter of law pivotal to its decision. Anything else said in an opinion is dictum—or, if you’re enumerating instances, dicta (the plural noun).
Although dictum is often dismissed as if it had no value at all, it can be highly persuasive. It may be the best indicator of how the court would decide a case like yours. The higher the court, the more sway its dictum has. So invoking “mere dictum”—as it’s often disparagingly called—from the highest court in your jurisdiction can indeed be persuasive.
But merely noting that a judicial statement you’re quoting is dictum can also give you credibility: you’re not only acknowledging that the statement isn’t binding, you’re also signaling that you’re a meticulous writer. And if you tell your readers in advance what assumptions or different circumstances were at play in the court’s statement, you’re likely to enhance that credibility.
Further reading: For a thorough discussion of the distinction between holdings and dicta, see Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 44–75 (2016).