Becoming a Better Poet: What Poetry and Your Legal Writing Should Have in Common
The Bencher—May/June 2023
By Judge David W. Lannetti and Jennifer L. Eaton, Esquire
Good legal writing is almost poetic: it flows naturally and leaves the reader satisfied and fully aware of its purpose. Bad legal writing, on the other hand, can leave the reader confused and unaware of the writer’s intended focus. Many lawyers have a hard time mastering this craft because legal writing is more an art than a science, and a craft needs constant refinement. It takes intentionality and practice to begin to master the art of poetry…and legal writing. There is no magic formula to legal writing; one lawyer’s “art” may look different than another’s, but there are some common gaffes that good legal writers avoid.
Not Recognizing that Your Job Is to Educate the Judge
It is not unusual for attorneys to assume that their primary task is to bring a dispute to the court so that the judge can impart his or her wisdom and resolve the dispute in short order. In reality, most judges are generalists; they likely continued to specialize their practices after graduating from law school. Hence, when they took the bench, there are vast areas of the law about which they have no specialized knowledge. You, on the other hand, have lived with the case—and the related law—for months or even years. The judge often wants you to educate him or her on the case and relevant law, and you have the knowledge to do so effectively. The ultimate literary compliment is for a judge to use language from your brief in his or her ruling.
Assuming a Foundational Knowledge of the Topic
Some topics and legal arguments are run of the mill, but never assume the court is familiar with a topic. Always present your arguments logically, cite relevant authority, and define key terms. Failing to cite key authority can be fatal because it leaves the court without authority for its ruling. Judges are leery of adopting your uncited opinions regarding an aspect of the law. Don’t rely on the judge, or his or her law clerk, to research the issue. Make the judge’s job easy by presenting the applicable statutes, regulations, and caselaw. Minimize the use of acronyms. If using abbreviations, always define the term first before abbreviating. Although you may be intimately familiar with the terminology, the court may not. Using definitions also helps preserve the record in the event of an appeal.
Overlooking Who Has the Burden of Proof
Lawyers too often underestimate the importance of the burden of proof in legal writing. It is not unusual for the judge to read briefs from both parties and realize that neither has addressed the issue. Of course, in some cases it is obvious which party bears the burden, but in others it is not. Even when it is clear who has the burden of proof, either explicitly or implicitly, brief writers should use the burden to their advantage. If you have it, demonstrate why it is satisfied. If the other side has it, make it clear that you must prevail if that party fails to satisfy it. Further, if the other side has the burden of proving several elements, point out that the failure to prove any one element results in that party losing. Focusing on the burden of proof can be particularly important to remind the court of its mandate in cases where the other side may appear sympathetic or when the equities might lean in its favor.
Not Using Every Part of Your Pleading to Persuade
It will come as no surprise that your primary goal is to advocate for your client by persuading the judge that your position is the correct one. However, few writers recognize that they can do so in every section of their brief. The issue should be phrased in a way that favors your client. The statement of facts should emphasize helpful facts and deemphasize facts that hurt your case. The section headings need to argue your key points. And, of course, your choice of analogous cases needs to highlight how the facts in the current case align with analogous cases that have a favorable outcome and are easily distinguishable from those that have an unfavorable outcome. Additionally, identify to the court whenever possible how the outcome you desire supports public policy and will positively impact future cases. Finally, the conclusion needs to summarize the key persuasive points and lead naturally into your prayer for relief. No aspect of the brief should be fluff. Be intentional and precise in both your approach and your advocacy throughout.
Having No Road Map to Guide the Reader
A brief without direction is like driving across the country without a plan; you might ultimately get to the destination but not without frustration and unnecessary meandering. Clearly outline your road map at the beginning of the argument section of your brief or motion. It provides context for the reader, and the flow of the pleading will make more sense as an orderly and logical progression of your argument. Identify the key arguments of your position and address why perceived weaknesses—which the other side likely will highlight—are easily distinguishable or immaterial. Giving the reader a preview of the arguments helps manage expectations and hopefully creates interest in your position.
Not Citing Authority to Support Your Argument
When you don’t cite authority, it reads as if there is no authority. This leaves the reader questioning whether your position is valid or fabricated. Remember, it is not the court’s job to find caselaw to support your position. If you have an argument, find a case that supports it; don’t weaken good arguments by failing to cite legal precedent. Further, when you do cite authority, ensure that the citations are complete and accurate and that they indeed stand for the proposition for which they are cited. Remember that you are obligated to bring negative controlling authorities to the attention of the court, so ensure that you distinguish the current case from the cited case when applicable. And avoid showing up in court with cases not cited in your brief without providing copies to opposing counsel and the court in advance whenever possible.
Using Passive Voice Unintentionally
Passive voice weakens arguments because it fails to identify the actor. This can lead to confusion and muddy otherwise solid case facts. Active voice better focuses the reader because it emphasizes the actor and uses direct correlations. Additionally, active voice requires fewer words to convey the same idea. When possible, use active voice and clear, concise sentences. Being direct and to the point shows confidence and conviction in your position. This is not to say that passive should never be used. There are times when you want to de-emphasize the actor and instead emphasize only the relationship between the verb and the object. For example, if you are representing a defendant accused of committing a crime involving the discharge of a firearm, you may be justified in writing, “The gun went off.” But in doing so, be intentional. Don’t use passive voice when there is not a clear reason to do so.
Being Long-winded
Don’t shy away from brevity; the reader will appreciate it. Just because the page limit is 30 pages does not mean you need to write 30 pages. If you can articulate the necessary background and arguments in five pages, then the brief should consist of only five pages. Avoid string cites and block quotes, as most readers simply skip over them. Don’t include unnecessary facts, arguments, or caselaw just to increase the word count. Judges actually appreciate concise briefs as long as they convey the necessary information. Omitting unnecessary facts and tangential arguments focuses the reader on what is important. Your task in a brief is to clearly articulate your position; it is not the reader’s job to search through a wordy and confusing document to identify the relevant elements that you failed to clearly convey. Don’t waste the reader’s time.
Overstating Your Case
Although you may believe you have a “sure winner” of a case, the judge likely will be a bit skeptical, at least initially. Avoid using conclusory words such as “never” or “always” unless you are confident that those terms accurately reflect the case facts. It is rare that something will always be true and likewise that something would never be true, so be certain and selective in your word choice. Words have meaning, and when you stretch the meaning of words, you risk losing credibility with the court. For similar reasons, it is important to avoid exaggeration and hyperbole in your arguments. You gain nothing for your client when you make your arguments theatrical. Instead, focus on emphasizing your strengths and downplaying any weaknesses, and let the reader conclude that you should prevail.
Attacking Opposing Counsel or Their Clients
Although civility should be paramount, some attorneys believe they benefit by making personal attacks against opposing counsel or their clients. In briefs, this may manifest itself as a disrespectful tone—or outright disparaging remarks—when describing the other side’s position or when addressing opposing counsel. Neither is appropriate. The court does not appreciate such language, and you can quickly lose credibility by name-calling instead of focusing on the weaknesses of the other side’s arguments. You also put your own reputation at risk by making yourself look petty and—even if the statements are technically true—by stooping to the same level as the other side. Any antagonism between counsel should not be apparent in a brief or motion. Make the reader focus on your argument, not your lack of civility.
Not Documenting that You Tried to Resolve Matters
Most courts require, or at least expect, that attorneys will attempt to resolve disputes before bringing them to the attention of the court. It is part of the professionalism inherent in the practice of law that lawyers will cooperate with one another, and judges universally expect that attorneys will treat one another professionally. Courts recognize, however, that it is their job to resolve disputes. Hence, it is a myth that courts hate discovery disputes; rather, they hate discovery disputes that the attorneys should have been able to resolve without court intervention. If opposing counsel does not cooperate, document in your motion or brief your attempts to resolve the matter by, for example, attaching copies of your correspondence with the other side.
Avoiding these major gaffes is one step toward improved legal writing, but the best way to get better is to practice, practice, practice. Don’t expect to become Shakespeare overnight. Look for opportunities to refine your art, and take advantage of the opportunity to read the works of others. The more you read, the more exposure you will have to good—and bad—writing styles. Recognize that becoming a better writer, whether as a poet or a legal brief writer, is an incremental process. We all have room for improvement. Start today.
Judge David W. Lannetti is a circuit court judge in Norfolk, Virginia (Virginia’s Fourth Judicial Circuit). Jennifer L. Eaton, Esquire, is a civil litigator and principal at Woods Rogers Vandeventer Black PLC. Lannetti is a past president, and both he and Eaton are current executive committee members, of the James Kent American Inn of Court. The views advanced in this article are those of the authors alone and should not be mistaken for the official views of the Norfolk Circuit Court or Woods Rogers Vandeventer Black PLC.