"If you were limited to oral persuasion or written persuasion, which would you choose?” I recently put this question to our Lawyers’ Lunch Table. These lawyers chose written persuasion four to one. I agree with the writers. I find good writing leads to good results. I credit good writing for my firm's outstanding results over the past year. If we prefer written persuasion and we know good writing leads to good results, why are we as lawyers such bad writers?
The poor writing I see in emails, letters, affidavits, pleadings, motions, and briefs disappoints me as a poor reflection on our profession. I put these in an ascending hierarchy for a reason. Good writing, like most skills, comes from practice. If we focus on writing better emails and letters, we will write better motions and briefs.
Like the lawyers whose emails and briefs I read, my writing needs improvement. My wife—a much better writer than me—often corrects me on my misuse of few and less, among many examples. I am 74-years-old but my legal writing still needs improvement. I am trying.
Two books and two software programs help my continuing writing education. My favorite book is Bryan Garner’s The Winning Brief, 100 Tips for Persuasive Briefing in Trial and Appellate Courts. Since 1998, I use The St. Martin's Handbook to answer my questions on grammar, style, and punctuation. I rely on my word processor's spelling and grammar checker. My favorite program is WordRake, which highlights unnecessary words and legalese and suggests changes. Sometimes, when I think I have written the perfect paragraph, WordRake bursts my balloon and I crash to earth. Even when I reject the WordRake suggestion, I usually rewrite the sentence. I WordRake every document I write in my office.
Here is my approach to legal writing. All legal writing has three sections: the law, the facts, and the conclusion, but not necessarily in that order. This approach follows Bryan Garner's advocacy of syllogistic writing. He urges a major premise, a minor premise, and a conclusion stated as the law, the facts, and a conclusion or question. Syllogistic writing makes it easy for the reader to understand the issue and may persuade the reader even before reading the argument.
Before writing anything, I gather the facts and research the law. I then explain the result I seek or the question I ask. This works for any document I prepare from emails to agreements to appellate briefs. My final writing may omit the law, the facts, or the conclusion but each is part of my organization. An example:
Law: The court may grant an absolute divorce on the ground of adultery. S. C. Code Ann. § 20-3-10(1). The moving party must prove the date, time, and circumstances of the offense. Direct evidence is unnecessary to prove adultery; indirect or circumstantial evidence is sufficient or part direct and part circumstantial evidence. The proof of adultery as a ground for divorce must be clear, positive, and proven by a clear preponderance of the evidence.[citations omitted].
Facts: While Sam Smith and the children took a vacation trip, his wife Jane drove to Orlando, Florida, where she met Bob Jones. Jane and Bob went to several bars before going to the Holiday Inn. Video shows she was not wearing her wedding band. Jane and Bob went to a room at the Holiday Inn at 10:48 p.m. and remained in the room until 8:23 the next morning. They kissed before leaving.
Conclusion: Sam is entitled to a divorce from Jane on the ground of her adultery with Bob.
In orders, I use the law, the facts, and the conclusion. In the complaint, I only use the facts and conclusion. In a settlement proposal, I might only use the conclusion. In an appellate brief, I phrase the conclusion as a question: Is Sam entitled to a divorce from Jane on the ground of her adultery with Bob?
Defining issues as syllogisms makes writing the argument easy, simple, and short. I recently wrote the following as an issue in an appellate brief.
The family court has jurisdiction to apportion marital property but may not apportion nonmarital property. Marital property is all property acquired by the parties during the marriage and owned on the date of filing of marital litigation. Did the trial judge err by awarding the wife part of the husband’s 2015 income tax refund earned after the June 18, 2014, filing?
My goal is a document with no passive sentences and seventh grade level of comprehension. Terms of art and direct quotations sometimes make the grade level difficult to achieve. This post has no passive sentence and has an eighth grade reading level.
By working as thoroughly with my emails as my appellate briefs, I develop good writing habits, saving time and improving clarity in my future writing. I still have a lot to learn and a long way to go.
The most important factor in good writing is a good editor. Thank you Michael J. "Mike" Polk and Thomas F. "Dodie" McDow V for turning my mediocre writing into something of which I am proud.
I named this blog Debating Family Law to generate comment and debate for our mutual improvement. I need and want your comments and opinion on how you think about legal writing and how you achieve your writing goals.
© 2020 McDow & Urquhart LLC