On Wednesday, May 9, Josh Taylor, Attorney and Smokeball’s Legal Technology Content Marketing Manager, spoke to a large group of Chicago Bar Membership Appreciation Week Conference attendees. More than 75 attorneys were present as Josh presented his “7 Tips for Better Legal Writing.”
Just last week, on Friday, July 20, Josh brought this presentation to a large group of attorneys during a live Webinar hosted by Smokeball. A former large-firm litigator, assistant law clerk, and Washington University Thompson Coburn Research Fellow, Josh brought experience and anecdotes to the table to drive home the main point of the talk: writing well truly matters.
It matters, as Josh pointed out to begin the talk, because judges take the time to point out and chide attorneys for writing errors, ethical rules require solid writing, and lawyers risk losing credibility for otherwise valid arguments if readers cannot trust them to formulate those arguments correctly. All of this ultimately harms clients, opposing any lawyer’s purpose. Quotes from the works of Bryan A. Garner, legal writing guru, were peppered throughout the presentation, but perhaps none was more important than one from Garner’s Harvard Business Review Guide to Better Business Writing: “Supervisors, colleagues, employees, clients, partners, and anyone else you communicate with will form an opinion of you from your writing. If it’s artless and sloppy, they may assume your thinking is the same. . . . Writing well is a big deal.”
The presentation and webinar explored seven main ways to improve and re-focus a lawyer’s legal writing skills:
- Know (and Remember) Your Audience(s)
- Organize Everything
- Be Short and Sweet
- Use Precedent Properly
- Shore-up Your Grammar, Style, and Bluebooking
- Proofread As You Write and After You Write
- Utilize Technology to Reduce Error
“Supervisors, colleagues, employees, clients, partners, and anyone else you communicate with will form an opinion of you from your writing. If it’s artless and sloppy, they may assume your thinking is the same. . . . Writing well is a big deal.”
Know (and Remember) your Audience: This portion of the presentation focused on the different audiences that will critique any written court submission. Judges will be fickle and highly skeptical. Court clerks are an important first gate-keeper that may dock you points for poor grammar and citation. Opposing counsel will certainly try to point out errors in writing to undercut your credibility.
Organize Everything: From materials to outlining and headings, everything must be organized before you lift the substantive pen to write your submission. Make sure you can find everything you need to use in your submission. Additionally, outline in a way that does not constrain your final product. Non-linear outlining and use of the Flowers Paradigm (madman – architect – carpenter – judge) will lead to the fullest substance. Also, use good headings that give your audiences the entirety of your arguments; the paragraphs under the headings should simply support.
Be Short and Sweet: Enough said – don’t say more than you have to just to sound “smart”. It backfires 99.9% of the time. Use plain English.
Use Precedent Properly: The point here was to avoid pulling the wool over the decision-maker’s eyes. If judges or clerks feel that you are misquoting or misusing a case, they will likely disregard the entirety of what you are trying to say. Don’t oversell and do not misuse precedent. Opposing counsel pointing this out may be fatal to your client’s case. Additionally, and related to the next tip, be sure to cite to precedent correctly and accurately. Quotes should be spot-on, and page indicators in your citations must be accurate. If the court feels as though they are searching for your quotes in the case law due to inaccuracies, they will not be pleased.
Shore-up Your Grammar, Style, and Bluebooking: During this portion of the presentation, Josh reviewed favorite grammar, style, and Bluebooking tips. The tendency to let these things fall by the wayside first in a time-crunch must be eliminated. As officers of the court, lawyers are operators within a set of rules and standards; so then why not prove to the court that you yourself can operate within a given set of rules and standards? Accurate grammar, style, and Bluebooking will eliminate any question of lazy thinking or being above the rules.
Proofread As You Write and After You Write: Proofreading is of the utmost importance. We’ve all been taught this since grade school. Proofreading while writing court submissions should be done both contemporaneously, critiquing each and every sentence previously written, and several times once a submission is “complete”. Have others proofread your work, and incentivize staff monetarily or otherwise to find mistakes in your work and argue why something should be written differently. Your writing should be error free and understandable by everyone at your firm from your mailroom intern to the most senior partner. Also, be sure you do not fall in love and get protective over your own writing. Let your writing cool overnight, and never be afraid to take criticism before it is submitted. Fix it before it’s too late.
Utilize Technology to Reduce Error: Once you have a written product that is solid and error-free, why in the world would you try to re-create that over and over again later? Utilize document automation programs to re-use great submissions. Also, utilize Microsoft Word’s tremendous tools for spell-checking and formatting. Of course, being hosted by Smokeball, Josh highlighted the organizational and automation advantages of Smokeball legal practice management software. A software like Smokeball includes features like legal document drafting software and docketing software which keeps everything organized and searchable, tracks all versions of a submission, and allows you to pass work within the firm seamlessly, is an incredible first step toward better written submissions.
Great questions and one-on-one conversations followed the conclusion of the formal presentation in May, with several attendees pointing out their own writing pet-peeves and stating that they could use more practice on certain writing rules. Good questions also followed the Webinar version in July, so be sure to listen till the end.
Like playing a sport, practicing makes one better. Lawyers that truly understand their writing shortfalls or where they skimp in a time-crunch can tighten up their writing much better than one who refuses to re-visit and re-study legal writing. Lawyers can always be better writers, no matter how competent. Josh ended the presentation with a Hemingway quote that sums up the pursuit of better writing perfectly – “We are all apprentices in a craft where no one ever becomes a master.”
That doesn’t mean we shouldn’t try. You can download a PDF of the slides here.
Or just watch a recording of the full presentation here.