Concision’s value in legal writing lies in how it furthers the goal of any litigation brief: communicating your argument and persuading the judge to accept it. Shorter, tighter documents, arguments, and sentences — with everything that is dispensable proactively disposed of rather than left for the judge to sort out — are more likely to attract and hold the judge’s attention, motivating them to pick up the brief and read it all the way through.
An example from my workshop
While concise sentences hold the judge’s attention, long-winded ones lull them to sleep — especially if the sentence relies on worn-out incantations to carry its meaning.
In my online writing workshops, attorneys from around the world independently revise anonymized examples from real legal filings, then discuss the original’s problems along with the solutions we found.
Here is a sentence that generated an interesting discussion at my most recent Concision and Plain Language workshop. It’s from an attorney’s meet-and-confer declaration:1
“Attached hereto as Exhibit ‘A’ is a true and correct copy of my March 22, 2019 ‘meet and confer’ letter addressed to counsel for Plaintiff in the instant action pertaining to the instant motion in limine.”
That’s a bloated sentence packed with legalese. Legalistic jargon and ritual phrases become habits because lawyers tend to reproduce writing patterns used by other lawyers without pausing to consider whether these are the most clear, straightforward, and artful way to convey meaning.
I revised the “Attached hereto” sentence as follows:
Exhibit A is my March 22 meet-and-confer letter to Plaintiff’s counsel.
That structure works well if the declaration is functioning as an index, with each line beginning “Exhibit X is ....” But the best revision came from a participant:
I sent Plaintiff’s counsel a meet-and-confer letter about this motion on March 22 (Exhibit A).
This version restructures the sentence to show a character performing an action (Elegant Legal Writing § 4.4), replacing the static verb is with the action verb send.
Here’s an (inexhaustive) analysis of problems with the original:
1. “Attached hereto is ….” “Hereto” is quintessential legalese; it’s also contextually redundant, since the reader will expect that any attachment mentioned in a declaration is attached to that declaration rather than some other document. The sentence’s structure also violates the reader’s expectations; the sentence describes a document as “attached” before identifying the document, reversing the usual subject-verb or topic-predicate sentence structure and lending the sentence an archaic flavor.
2. “A true and correct copy of.” “True” and “correct” mean the same thing here, so this pair is a doublet. A doublet is a pair of redundant synonyms, used reflexively as a cliché without attending to the words’ meanings (ELW § 2.4). Consider describing the exhibit while leaving implicit that it’s authentic and a copy, since both assertions are contextually redundant; an attorney attests that a document is authentic just by telling the court what it is in a declaration based on personal knowledge.2
3. “In the instant action.” Still more redundant legalese. “The above-entitled matter,” “the above-captioned case,” and similar phrases are equally bad. “Here” is better, but it too is often dispensable. Unless context suggests otherwise, a litigation filing is presumed to be referring to the case in which it’s filed.
4. “Addressed to counsel for Plaintiff.” “Addressed to” is a longwinded way to say “to.” “Counsel for Plaintiff” should be revised to “Plaintiff’s counsel” (ELW § 4.7).
A well-crafted brief is approachable in length and style, encouraging the judge to pick it up and read it straight through. Concise writing reassures the judge that every paragraph contains information that will help them do their job.
Join my next workshop
Attorneys and legal-writing aficionados from around the world join me for ninety-minute sessions reworking passages and discussing the nuances of great legal writing in my online workshops. Subscribe to this blog to learn about new ones. Each session uses fresh examples so people can return as often as they like. The reviews have been uniformly positive:
“The workshop was a great experience. Small-group sessions like these are highly beneficial. The personal interaction and feedback are invaluable.”
— Steven Sciple
“The workshop was great! I loved it. I was really grateful for you sharing your firm’s example briefs, recommending books, and for being so willing to answer questions. It was also really fun getting to be around a bunch of legal writing nerds!”
— Workshop participant
I hope you can join us:
A declaration is a written statement of facts based on personal knowledge and made under penalty of perjury. Attorneys often submit them with motions to attest they made a good-faith effort to resolve the dispute informally before bringing the motion.
Contextual redundancy occurs when a document expressly says something that’s already implicit in the document’s context. True and correct is contextually redundant because a declaration is submitted under penalty of perjury and closes with an attestation that its contents are true. The attorney who signed it is bound by rules like Federal Rule of Civil Procedure 11(b) and ABA Rule 3.3, which require attorneys to tell the truth in their court filings. A judge will thus assume that any attachment to an attorney’s declaration is genuine, and the attorney’s description of that declaration is accurate — and woe to the attorney who violates those assumptions. Similarly, in the age of e-filing, no one will expect that the declaration’s attachments are wet-ink originals, so you shouldn’t need to state the obvious by acknowledging that they are copies.
A jurisdiction’s evidentiary rules or relevant caselaw may require the declarant to expressly state that the documents are authentic or say whether they are originals or copies. If so, write within those constraints. But it still helps to be aware of when you’re including low-information language out of a sense of necessity rather than to serve the reader’s needs.