13 essential principles for advanced legal writers

1. Legal writing is legal thinking

If you can't write it simply and clearly, you haven't thought it through yet. It's as simple as that.

2. Shoulder the burden you must - but travel as light as you can

Don't assume the burden of showing more than you need to make your case. Don't dispute every point your opponent makes; dispute only the ones you need to dispute.

3. Write for the chronically late

I once heard a trial court judge break down exactly how much time he (and he was a "he") has for each summary judgment motion on his docket: 15 minutes. You want him to stick his neck out for you and risk reversal? You better make your case in your allotted 15 minutes.

4. Structure your brief like an onion

A brief should always be structured so your judge needs to drill down into the details only so far as needed to be convinced. Make it easy on your judge to set your argument aside when satisfied. Start with the ultimate relief you are asking for. Provide sufficient grounds to grant that relief. If those grounds are separately sufficient, say so. Then, for each ground, give your judge sufficient reasons to establish the ground. And so on.

5. Save the introductions for cocktail parties

The heading "Introduction" just screams "stuff you don't really need to know but I can't resist talking about." Instead, summarize your argument under the heading "Summary." The Summary is your important section. If you are not ready to write a clear, concise summary of your argument, you are not ready to write the long version.

6. Don't be Joe Friday ("Just the facts, ma'am")

When we write we gather all the facts into a single narrative at the front, followed by legal analysis. This makes judges flip back-and-forth to line up the facts, law and argument on each point. Don't do that. Judges may not have the time or patience to mentally reorganize all the stuff you throw at them. And if they did, what makes you think you are entitled to it? Your job is to make their job easier.

If you can, banish the fact section completely and discuss pertinent facts in the proper level of detail in the argument. Organize facts and law together under the conclusion you want your judge to draw. Don't make flipping between sections necessary. If you can't do that, discuss facts under a separate heading, organized to justify the factual conclusion you want your judge to draw. And the heading should not be "Facts" (or something akin) - it should be the factual conclusion or inference you are advocating. And even then, repeat pertinent facts later in the proper section of legal argument.

Never hand your judge a section of a brief that has "all the facts Your Honor needs to keep in mind to understand the rest of my brief. (Please feel free to take notes.)"

7. KISS

You know what this means. Strunk & White put it best: "Omit needless words." William Strunk and E.B. White, The Elements of Style 39 (Illustrated 3rd Ed. 2005). The same goes for arguments. If it's too complicated to write simply, you need to think it through more. Your entire argument may be complex, but each part should be simple, the structure that ties each part should be simple, and your language should be simple. Nothing is so complicated that it cannot be broken down into simple steps.

8. Don't forget your ABCs.

Always Be Connecting. As you write, every point should connect to the last one (or the next): Grounds to results, section to section, paragraph to paragraph, often sentence to sentence. Keep your judge connected to the superstructure of the argument. They should never wonder, "Why am I reading this?" They should know.

9. Don't commit senseless acts of string-citing

Nothing screams "Danger Will Robinson!" more than a brief that says "It is well-established that _____" followed by a long string of citations. If it was well-established, only one cite is necessary. And that cite should either be the leading case establishing the rule; a very recent case repeating the rule (preferably from a court binding on your judge); or a decision from your own judge.

There are only three reasons to string-cite: (1) You need to show that a rule has been widely adopted across multiple courts whose holdings are merely persuasive as to one another; (2) you need to show a rule has been applied in varying factual settings; (3) you need to chart the development of a rule. And you had better use parentheticals to clarify why you are string-citing. Do not string-cite just because you have done the research.

10. Only put in a footnote what you don't need your judge to read

Don't assume that anything in a footnote will get read. So, why bother with them at all? Because they are a great place for stuff that need not be read. Think of them as the bottom layer of the onion. They are great for points you need not address but think your judge might want to see regardless, and points you might need later, but are not essential to your argument.

Never footnote: (1) critical parts of your argument; (2) necessary facts, or (3) anything you want your judge to read. You can footnote: (1) additional authority; (2) supplementary arguments; (3) stylistic asides or ephemera; or (4) points you want to later show were addressed, but you don't want your judge to focus on.

One particularly good use of footnotes is when you need to string-cite. Put your best citation in the text, and continue the rest of the string-cite in a footnote.

But never reveal difficult facts or law in a footnote without thinking it through carefully. Paradoxically, nothing calls greater attention to a weak point than burying it in a footnote.

11. Be easy on the eye

We are visual learners. A whole courtroom graphics industry has been built around this. This is no less true for writing. "[T]he first thing the reader sees is the overall pattern of light and dark on the page." Ruth Anne Robbins, Painting With Print: Incorporating concepts of Typographic and Layout Design Into the Text of Legal Writing Documents, 2 J. Ass'n of Legal Writing Directors 108, 110 (2004). Using the tools of typography--font, format, spacing--a "legal writer can create a picture ... as paint on the canvas of a page" to enhance their own credibility and their judge's receptivity. Id.

Take seriously the two laws of legal typography: (1) The more difficult a judgment on the contents of a writing, the more influence typography will have on the judgment. (2) The more limited a reader's time or attention, the more influence typography will have on their judgment. Matthew Butterick, Typography for Lawyers 28 (2nd ed. 2010).

12. Don't lose your head(ing)

Headings are important. They are the summary of your summary - the 'elevator pitch' of your argument. After putting careful thought into crafting them, don't toss them onto the typographical trash heap by making these mistakes:

(1) Putting them in all-caps. All-caps look terrible, slows reading dramatically, and people just plain don't like reading all-caps. Psychologists have known this for decades. Large and Small Caps achieve the same effect without the disadvantages.

(2) Underlining them. Underlining "makes characters look more alike, which not only slows reading but also impairs comprehension." Seventh Circuit, Requirements And Suggestions For Typography In Briefs And Other Papers 5 (available at http://www.ca7.uscourts.gov/forms/type.pdf) Bold works better.

(3) Shoving them to the left. Contrast is enhanced when headings are centered on the page.

(4) Making them one long, complex sentence. KISS applies as much to heading as to text.

(5) Letting them break across the page. Headings only work if your judge can understand them with a glance. Turning the page in a heading defeats that purpose.

(6) Orphaning them. A heading is a navigational aid doing extra duty as a summary. If it sits at the bottom of a page with no apparent text to mark or summarize, it isn't doing anything.

13. Wash, rinse, repeat

It's a cliché, but it's true: it takes a long time to write something short. If you haven't gone through multiple drafts of a brief, then you simply haven't devoted enough effort to keeping it simple.