Tone is a matter of professionalism as well as style. By always using an appropriate tone, you avoid annoying the reader while doing your part to uphold the dignity of the legal profession.
Litigators should think of themselves as educators as well as advocates. Your goal is to educate the court about why the facts and law support your client. With respect to tone, that means that you should always be reasonable and demonstrate that you trying to help the judge correctly decide the issue. If you focus on educating the judge and making the strongest affirmative argument for your client’s position, you’ll be less likely to make the mistake of focusing on the opponent and being reactive or defensive.
The most important tone guidelines for litigators are these:
Ensure that your prose is understated — not overwrought, pompous, or openly emotional.
Write to persuade the reader, not to harass or disparage your opponents.
Always show respect to judges and opposing counsel.
And here are some mistakes to avoid:
Using slang or other overly casual language.
Attempting to be “literary.”
Using hyperbole (exaggeration).
Using intensifying adverbs (such as “extremely” or “utterly”).
Overstating your points (by, for example, saying that a fact “proves” a conclusion when it merely provides evidence in support of that conclusion).
Here are some improvable examples:
“Although Plaintiff is technically pro per, he is a sophisticated attorney who either could not be bothered to research the procedural requirements of his own motion, or blatantly chose to disregard it.” [Disparaging the opponent.]
“It is not surprising that the very same defendants that videoed plaintiff Steven Durand while he was on vacation and after he was terminated would object to his counsel’s use of the word ‘criminal’, ‘illegal’, ‘tailing’, and ‘invasion of privacy’ at trial. Perhaps we live in a more Orwellian society than old George predicted.” [Attempting to be “literary.”]
“The district court failed even to address several aspects of the mental health system that Defendants demonstrated are constitutional—screening, mental-health-records management, medication management, and protocols for use of force and discipline concerning mentally ill inmates. . . . In the court’s mistaken view, because the State had ‘gone for the home run ball’ by seeking to terminate the whole case, it was not entitled to have the court consider the appropriateness of its control over individual aspects of the mental-health system.” [Disparaging a court.]
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Ryan McCarl is a partner at the law firm Rushing McCarl LLP and the author of the book-in-progress Elegant Legal Writing. He taught Advanced Legal Writing at the UCLA School of Law. You can follow him on LinkedIn and Twitter as well as his personal blog.