Discover more from Elegant Legal Writing
Attorneys are gatekeepers of relevance.
The practice of law often requires attorneys to distill masses of information.
Strong attorneys have an acute sense of relevance. The practice of law often requires attorneys to process a mass of information — most of which will not matter — and distill it for a client or a judge.
When I was in college at the University of Chicago, I had a part-time job at the law library. One of my tasks included updating legal treatises' supplements (“pocket parts”). Each month, publishers sent paper booklets containing synopses of and commentary about recent cases, and I would insert these into the treatise volumes while discarding each volume’s superseded booklet.
The volume of information in the law is fascinating. It is physically impossible to read all available legal authorities, even within niche subspecialties. And the law is constantly changing, as visually demonstrated by the monthly pocket parts.
Laypersons often have the mistaken impression that what distinguishes an attorney from a non-attorney is that the attorney “knows the law” — that is, has the relevant legal rule already fixed in their mind and is ready to deploy it upon demand. While that is sometimes true, attorneys are much more than walking repositories of legal rules, and our minds are unreliable places to store those rules in any event.
Good business litigation attorneys may not know by heart the elements of an “action for the price” under section 2-709 of the Uniform Commercial Code (UCC), but they should know that the UCC exists and that Section 2 of the UCC applies to sales of goods. When they learn of a fact pattern in which a buyer accepts delivery of 500,000 widgets but fails to pay for them, then, they know of one place they might look for relevant legal rules: their state’s codification of the UCC.
Upon determining that, for example, Cal. Com. Code § 2709 (which codifies UCC § 2-709) applies, the attorney can then look for cases and treatises interpreting that provision. The resulting research is not to be dumped on the page to impress the reader with the attorney’s thoroughness and erudition. Instead, it provides the raw source materials from which the attorney can identify or synthesize a rule and craft a legal argument.
A legal rule is relevant to a motion if, given the facts and procedural context, the rule could apply and make a difference to the court’s decision. Facts are relevant if they could affect which rule applies or whether the conditions for a rule are satisfied.
Familiarity with the relevant rules therefore prepares an attorney to serve as a gatekeeper of relevance. The attorney can hold the sea of available information (both facts and law) at bay so their point does not drown.
Call for volunteer reviewers and editors
I am currently soliciting volunteer reviewers to provide feedback on my manuscript chapters before I deliver the final copy of my book Elegant Legal Writing to the publisher on February 1, 2023. If you would like to be added to my mailing list to provide feedback on draft chapters as they are revised, please email me at ryan.mccarl[at]rushingmccarl.com.
Ryan McCarl (LinkedIn) is the author of Elegant Legal Writing (forthcoming, U. Cal. Press 2024) and a founding partner of Rushing McCarl LLP. For more writing tips, subscribe to the Elegant Legal Writing blog:
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