Remember the reader

Lawyers should write with their audience in mind.

To write any professional document effectively, you must write with the audience in mind. Keep in mind how your writing will be used and shape it to be as useful as possible for that purpose. Anything in a legal document that does not help the reader is wasteful and must be removed during revision.

Remember that you are explaining the law to another human being. As Joe Glaser put it, “Good writers picture their readers and try to appeal to them directly.”[1]

Aim to make your document as useful to the reader as possible. That means thinking about the reader’s specific goals, keeping the reader’s background knowledge in mind, and avoiding lazy habits such as dumping the results of your research onto the page and leaving the reader to piece it together into an argument.

Think about the reader’s specific goals.

“Address the reader’s needs specifically enough to make the document a sharp scalpel for the operation you want to perform.”

— Armstrong & Terrell, Thinking Like a Writer

Always think about what your target reader needs to accomplish and make your document a useful instrument for that purpose. For legal writers, thinking about audience means considering who your target reader is and what they need to use your document to accomplish. Here are some typical scenarios:

  • You are writing a demand letter with the aim of convincing an opposing party to take some action voluntarily so you don’t have to resort to litigation. Your goal is to persuade them that taking the action is in their best interest.

  • You are writing a pre-litigation analysis letter to a client setting forth potential legal strategies, their expected costs, and the probability of various outcomes. Your goal is to help them think through a legal problem and develop realistic expectations so they can make a decision that is in their best interest.

  • You are writing a meet-and-confer letter with opposing counsel before filing a motion to compel further discovery responses. Your ostensible aim is to persuade the opponent to give more substantive responses, but you suspect that you won’t be able to persuade them to do so; you therefore also write with the court in mind, as this letter may end up attached to a filing and ultimately on the judge’s desk.

  • You are writing a motion to compel further discovery responses. When the judge reads your motion, their goal will be to decide whether to order your opponent to supplement its discovery responses. The judge has no interest in being a spectator to sniping between you and opposing counsel, reading irrelevant facts about other cases, or seeing how much research you’ve done.

Consider the reader’s background knowledge.

In general, assume that your reader is a well-informed member of the legal community who is a bit rusty on the specific topics you are covering. Don’t waste the reader’s time with information that he or she already knows.

Here’s an improvable example from an appellate brief:

II. Standard of Review

The “standard of review” refers to the manner by which the appellate court conducts its examination of the matter on appeal. Morrison, 538 Pa. at 131, 646 A.2d at 570.

The trouble with that example is that every appellate judge knows what a standard of review is. It’s true that you should always say which standard applies in your case — abuse of discretion, de novo, etc. — but you don’t need to explain the concept of a standard of review.

Bad habits to avoid

Writing with your audience’s needs in mind can help you avoid some bad habits that abound in legal writing.

  • Avoid research dumps. If you’re writing a brief or memo, don’t do a “research dump” in which you fill the text with long chains of citations, include tangential asides, or otherwise try to find a home in the text for everything you learned during your research. Judges, colleagues, and clients want you to clear a path through the thicket of the law, not reproduce that thicket in your document.[2] The point of a legal document is never to show how hard you’ve worked to solve a problem. Rather, the point is the solution you’ve discovered as well as the reasons that solution is correct.

  • Don’t snipe at opposing counsel. Lawyers often pepper their filings with snarky asides and snipes at the opposing party or its lawyers. Avoid this practice. A judge reading your brief wants to know why she should grant or deny the relief requested. She is not interested in reading about petty grievances with the other side.

  • Avoid unnecessarily long recountings of a case’s facts or procedural history. Many lawyers have trouble distinguishing relevant from irrelevant details. In general, include only the information that the reader needs for their present purposes — for example, in a motion, include only the information a judge needs to decide that motion.

    This general principle is especially true when you are writing about a case’s procedural history. Does it really matter, for example, that so-and-so’s deposition was taken on March 19, 2020 in Dallas, TX, or can those details be simplified or omitted?

  • Avoid unnecessary legal-history lessons. Most legal audiences are in a hurry for you to get to the point. One manifestation of this is that they are not usually interested in the backstory of how a doctrine came to become the law. Just say what the law is, not how it came to be — unless you have one of the unusual cases in which a court needs to understand a doctrine’s history to properly decide the case.

[1]     Joe Glaser, Understanding Style 3 (1999).

[2]     A related tip for law students: avoid “outline dumps” on law exams. Don’t try to cram as much of your outline as possible into an answer to show how much you’ve learned. The professor doesn’t care what your outline says. He or she is evaluating your legal analysis and judgment, not your skills as a notetaker or scribe.