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Balance the competing values at stake in writing tasks.
Legal writing tasks involve tradeoffs.
Writing guidelines often conflict, requiring writers to evaluate tradeoffs and choose between different ways of expressing the same idea. This process can be guided by a sense of how to prioritize the values underlying different pieces of advice.
If you’re writing a discovery motion, you’ll have a different set of priorities than someone writing a poem. Aesthetic considerations such as pace and rhythm matter even in litigation writing, but they are less important than complying with court rules and making the judge’s job easier by using a plain-language style.
Here is a suggested ranking of aims for litigation writing:
1. Fulfilling your ethical duties (including the duties to be competent, to avoid misstating the facts or law, to avoid abusing the judicial process, and to avoid misleading the tribunal).
2. Filing the document on time.
3. Following court rules so the clerk doesn’t reject your filing and you don’t lose on a technicality.
4. Clearly articulating your point.
5. Persuasively arguing your point.
6. Avoiding blunders such as spelling and grammar errors.
7. Making the filing as short and readable as possible.
8. Holding the reader’s interest and motivating the reader to continue.
9. Making the text pleasant to read by using effective style techniques.
10. Making the text appear professional and impressive by following sound layout, design, and citation-formatting practices.
Although prose style and aesthetics appear near the bottom of this list, that does not mean they are unimportant. Every item on the list is important. A piece of legal writing that ignores any of them might be minimally acceptable, but it won’t be good.
The main variable that determines whether you can fulfill all ten aims is time. The less time you have to draft and revise a legal document before it must be filed, the more you will have to sacrifice in matters of style.
On many days, being a litigator involves one fire-drill after another. Emergencies (real and perceived) often disrupt your plans and cut into your time for focused writing. If you don’t protect your time and start projects early, they will come due before you have had time to do your best work.
Ryan McCarl (LinkedIn) is the author of Elegant Legal Writing (forthcoming, U. Cal. Press 2024), a founding partner of Rushing McCarl LLP, and an adjunct legal writing professor at LMU Loyola Law School. For more writing tips, subscribe to the Elegant Legal Writing blog:
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