The legal-writing advice I give every week
Some principles apply to almost every writing and revision session.
In the two years since Elegant Legal Writing was published, I have continued teaching legal-writing seminars while building my litigation practice at Rushing McCarl LLP. These create many opportunities to give writing feedback to others, often by pointing them to specific sections of ELW.1 Certain recommendations recur so often in my feedback that I have memorized their section numbers.
This post highlights several of those widely applicable recommendations, paired with new examples not included in the book.
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ELW § 1.7: Include only relevant details and put them in context
This principle, emphasized throughout the book, stresses that you should have a reason for every citation, quotation, and factual detail you include in a brief. Each detail must clarify or persuade.
First drafts are typically replete with details that should be cut or simplified. For each detail you keep, supply enough context for the reader to appreciate its significance at the first encounter.
ELW § 2.5: Condense bloated phrases
I often direct writers to ELW chapters 2–4 (Concision, Plain Language, and Strong Sentences) when I line-edit drafts. The most common sentence-level fixes condense and rearrange phrases to convey the same meaning in fewer words. Here are examples of bloated phrases with concise alternatives:
in order to preserve her down payment → to preserve her down payment
for the purpose of furnishing credit reports → to furnish credit reports
in connection with performing the Services → in performing the Services
subsequent to signing the MOU → after signing the MOU
in the amount of $1,024,337.50 → for $1,024,337.50
at the present time → now (or omit if implied)
by and through their attorneys of record → (omit)
on the part of the defendant → by the defendant
in the event that any portion of the verdict were overturned → if any portion of the verdict were overturned
the aforementioned judgment → the judgment
ELW §§ 7.1 (Assert propositions, then support them) and 8.1 (Use citations to support your argument, not as a substitute for analysis)
I’ve long urged attorneys to dump the simplistic IRAC and CREAC writing formulas (see ELW § 7.2) and instead adopt the framework “Conclusions + Reasons.”
In the brief as a whole — and in most headings, sections, and paragraphs — the default information sequence should be “[Conclusion] because [Reasons].” State the conclusion, then support it with reasons that integrate legal and factual premises.
Arguments should be organized around the points you’re trying to prove, not the raw materials you’re using to prove them. Every nonconclusory argument seeks to prove a conclusion by marshaling reasons consisting of legal and factual propositions.2 Attorneys cite cases (judicial opinions) not to provide history lessons, but to support legal propositions needed for one’s argument. It follows that if you’re going to cite a case, you should do so only to support or defeat a legal proposition.
It makes no sense to provide support before identifying the proposition you seek to prove, but attorneys often do just that. Here is a typical poor example of a paragraph that discusses a case before showing what proposition it supports and why it matters:
People v. Armendariz (1984) 37 Cal.3d 573 is another case in point. The defendant testified that he went to the victim’s house and found him dead; he claimed that he panicked, fled with some of the victim’s property, and did not call the police. On rebuttal, the court allowed testimony by the victim’s son, Alfred, that the victim, Joe, had telephoned him 17 months earlier ….
That paragraph appears in an argument section that is disorganized and difficult to skim because most paragraphs begin with a contentless assertion about a past case:
B. The trial court erred and abused its discretion by admitting the hearsay statements of Tito Angeli
The testimony of witnesses # 8 and # 11 regarding what Aguirre said was pure hearsay. {Rest of paragraph omitted} …
For example, in People v. Jablonski (2006), the trial court admitted testimony that the victim feared the defendant. …
People v. Ireland (1969) 70 Cal.2d 522 is in accord. …
The case of People v. Arcega (1982) 32 Cal.3d 504 is also illustrative. …
People v. Armendariz (1984) 37 Cal.3d 573 is another case in point.
Uninformative topic sentences like these make it hard for judges to follow your argument. Instead, topic sentences should usually state the legal or factual proposition to be proved, and that proposition should be a necessary building block of one’s argument.
ELW Chapters 7 and 8: Avoid proposition-citation mismatches.
Elegant Legal Writing’s chapters 7 (“Briefs and Motions”) and 8 (“Legal Authority”) contain tips on citations and argument structure. The most common flaw I encounter is a mismatch between a citation and the proposition it’s meant to support, or an inadequate explanation of how the citation supports that proposition. Here’s a poor example:
Moreover, Hunt cannot claim an ownership interest in the Palm Springs property based on Burke’s allegedly using “specific funds obtained from Hunt” to buy it. See Kenney v. United States (N.D. Cal. 2004), where the court held that an oral agreement reducing a spouse’s ownership interest in property was unenforceable because it fell within the Statute of Frauds.
The citation to Kenney doesn’t support the assertion about Hunt’s ownership-interest claim. The argument assumes — without explanation — that an ownership claim based on a buyer’s use of specific funds provided by an alleged co-owner is equivalent to an ownership claim based on an oral agreement.
Workflow — ELW § 10.12 (Follow a systematic writing workflow) and § 10.14 (Edit in stages, working on large-scale issues first)
I often remind myself to follow a systematic writing and editing workflow; doing so uses writing time more efficiently and leads to more organized and persuasive briefs. This is especially important when writing as part of a team. For lengthy or complex documents, seek consensus on an outline and obtain the lead partner’s approval before drafting.
Conclusion
Elegant Legal Writing is designed to be read straight through or in any sequence. If you are short on time and want to strengthen your legal writing quickly, start with the sections mentioned above. Then read the introduction and first five chapters — covering legal-writing principles, concision, word choice, sentence mechanics, and organization — followed by whichever sections interest you.
My book Elegant Legal Writing is available on Amazon and Audible. Please help me sustain the book’s momentum by rating it five stars and sharing my posts.
Thanks for reading Elegant Legal Writing!
Ryan McCarl is a partner of the business litigation firm Rushing McCarl LLP and author of Elegant Legal Writing (Univ. Cal. Press 2024). For more tips about legal writing and argumentation, subscribe to the Elegant Legal Writing blog and follow Ryan on LinkedIn. McCarl’s book is available on Amazon and Audible.
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Notes
This idea was inspired by Judge Frank Easterbrook’s practice, in his Legal Interpretation seminars at the University of Chicago Law School, of writing “Garner” in the margin of student papers whenever he found a word-usage error. “Garner” meant “look this point up in Bryan A. Garner’s Dictionary of Modern English Usage.”
A proposition is a declarative statement that can be accepted as true or rejected as false. For example, “Stein was a full-time W2 employee of Litwak at the time of the accident” is a factual proposition; “Stein was Litwak’s agent” is a legal proposition. Factual propositions are supported by citing allegations (in pleading-stage motions) or presenting evidence (at trial); legal propositions are usually supported by citing legal authority, such as cases or statutes.