Style & Persuasion - A Handbook for Lawyers

Preface

Easy reading means hard writing.

—William Thackeray

Why must you always communicate effectively? Because your success as an attorney depends on always being understood, regardless of your audience. Moreover, people you may never meet can form an opinion of you based on a single document you have written. You want your readers to respect you. To gain respect, you must first be understood. To get there, your words and thoughts must align. Yet, an effective writing style is about more than the reputation of an attorney; it is essential to the art of persuasion.

Why must you always communicate effectively? Because your success as an attorney depends on always being understood, regardless of your audience. Moreover, people you may never meet can form an opinion of you based on a single document you have written. You want your readers to respect you. To gain respect, you must first be understood. To get there, your words and thoughts must align. Yet, an effective writing style is about more than the reputation of an attorney; it is essential to the art of persuasion.

Three traits typify effective writers: First, the ability to distinguish between those words and structure that enhance your message versus those that impede it; Second, the ability to deploy syntax, diction, and rhythm to ensure your message flows, is understood, and is memorable; Third, the ability to craft sentences that engage your readers, prompting them to ponder your message. Your goal is simple, unadorned prose; writing that is lean, strong, and free of embellishment. None of that comes effortlessly. Yet, the more effort invested in your writing, the less effort required of your reader.

This book comprises ten chapters, plus Part Five, A Thumbnail Sketch for the Busy Lawyer, which is a digested rendition of the ten chapters. Each chapter contains descriptive subtitles. I hope you will read this book in its entirety, but feel free to cherry-pick the subtitles. When you do, I’m confident you will find suggestions that will improve your writing style.

Nelson Johnson, JSC (Ret.)

Introduction

MAKING SENSE OF THE NONSENSICAL

Aside from those engaged purely in literary pursuits, lawyers probably do more writing than any other professional...

—Judge Benjamin N. Cardozo

Lawyers are professional writers. We spend as much time put-ting our thoughts into words as do journalists, novelists and poets. Yet we face special problems. [W]e have a history of wretched writing, a history that reinforces itself every time we open the lawbooks.¹ A large portion of our job entails squeezing knowledge from law books and guiding our clients through a thicket of court decisions, legislation and regulations—none of which speak to ordinary people. At times, our role is equivalent to an interpreter of foreign languages. We must make sense of nonsensical language from on high. Because the law is forever evolving, we are constantly learning new languages we must interpret for our clients.

Yet, frequently, unlearning something is harder than learning something new. My goal is to help you learn how to communicate effectively in every situation, whether it be with clients, colleagues, or the courts. Your goal should be writing that is direct, simple, brief, strong and lucid.

One of the strongest forces in the universe is inertia, and unless you commit to improving your methods of communicating, your writing will continue to rely upon much of the gibberish you learned in law school. Most of what we learned there, and much thereafter, was through reading the opinions of judges, then attempting to emulate their wisdom. Unfortunately, that emulation comes at a price—prose that can be very dense. Other writers don’t suffer from such a handicap in the early years of their profession. As part of developing their writing style, journalists read well-constructed essays, novelists read classic works of literature and poets read great poetry, all providing valuable examples for writing well. Not so for lawyers. In our formative years, we read case law.

Unfortunately, few judicial decisions are inspiring. From my perspective, some of the most obtuse, footnote-laden, god-awful writing can be found in law journal essays and judicial opinions.

Many scholarly writings by law school professors and judges are indeed brimming with wisdom, akin to veins of gold waiting to be mined. But most of these authors seem indifferent to the fact that extracting wisdom from their knowledge would be much easier had it been presented in an engaging style.

Indeed, style matters. Take a moment to read aloud an appellate court ruling or a law review article to a friend or family member. You will likely laugh or cry by the end of the second page. Generally, the only people who read these learned primers are other judges, legal scholars and affected lawyers. For many judges and legal scholars, these writings are rarely about simplifying an issue, they are about expounding on the law, layer upon layer. The more intricate and complex their discussion, including an abundance of footnotes, the better. Though reading such works is unavoidable, mimicking their writing style guarantees you will never be an effective communicator. Few lawyers have such a captive audience. We must communicate not only with courts and our colleagues but, more importantly, with the people who pay our fees, namely clients.

Examine your daily routine and you will see that a large part of your role as an attorney is that of a professional writer, explaining the law to others. With the exception of lawyers on their feet daily in a courtroom, every other attorney conveys most information in written form. As a result, you must think like a professional writer. Clarity, in everything you write and say, must be your primary concern. Your writing must effortlessly impact your readers’ thinking or you have failed.

In my years on the bench, I presided over hundreds of jury trials. Before each trial, I reminded the lawyers, It’s not the jury’s job to figure out your presentation, it’s your job to make yourself understood. That is true of every communication you make as an attorney, whether written or spoken. The more effort invested in your writing, the less required of your reader.

We all have audiences to whom we wish to deliver information. In our profession, we never know with certainty who our audience is. An email, letter, contract, memorandum or brief on a motion may be read by many sets of eyes before its message is delivered to every interested party. As a professional writer in the law, the words used to express your thoughts on any matter must not be misunderstood. Readers must readily grasp your meaning or you have missed the mark.

To avoid frustration with your writing, be mindful of four terms that course through this book: the first three are precise, concise and economy of language. In all your writing, you must strive to be precise and concise, and to use as few words—and syllables—as appropriate for the topic and your audience.

Increasing the word count rarely conveys a thought more clearly, but the right choice of words always does. The fourth term I have used in presentations to lay audiences on the craft of writing is the reader’s eye. Just as a speaker must be sensitive to the ears of his audience, so as not to bore or confuse, writers must be ever mindful of how their prose will be received by the reader’s eye. There must be nothing in your writing that creates an obstacle to your reader’s eye moving effortlessly across the page, sentence by sentence, paragraph by paragraph.

From time to time, I will refer to Strunk & White.

William Strunk Jr. and E.B. White were the authors of The Elements of Style, a renowned handbook on writing. This authoritative manual is in its fourth edition and retains relevance for all writers, including lawyers.

Finally, I have a confession. I own many books on writing; I’ve read approximately half in their entirety. As for the remainder, I scanned the table of contents and index to read those portions that interested me most. My hunch is many readers of this handbook will do the same. Thus, what follows is a string of words and phrases that appear multiple times in this handbook to capture the eye of the busy lawyer. Don’t be surprised when you see them repeated, and keep these concepts at the fore-front of your thinking: less is more; simple unadorned prose; economy of language; the reader’s eye; the more effort you put into your writing, the less effort required of your reader; words matter; simple declaratory sentences; matter of factly; sentences are like fences; mastery of the facts; know your deal; you win your case by making your case; it’s all about your sentences understand your client’s needs, situations and expectations; clarity; cogency; lucidity; brevity demonstrates confidence; you must prepare an outline; there is no excuse for footnotes; and writing is rewriting.

Part One

UNLEARNING BAD HABITS

I think that law should be a literary profession, and the best legal practitioners regard law as an art as well as a craft.

—Justice Ruth Bader Ginsberg

Chapter One

LESS IS MORE

Link

Contents

1.1 - The Reader's Eye

1.2 - The Other Gettysburg Address

1.3 - A Legal Brief Must be Brief

1.4 - Role Models Lured by Technology

1.5 - The Length of Your Message Matters

1.1 The Reader's Eye

Following the publication of my first book, I was asked to speak at several writing conferences. The first event was thrilling yet daunting. In preparing my notes for the first conference, I was struggling with how best to explain the concept of linking. I wanted my audience to understand more than how the use of strong nouns, verbs or modifiers in the last sentence of one paragraph, then re-appearing in the first sentence of the next paragraph, will link’ the two paragraphs. I needed to show, not tell. That’s when I decided to express my personal aim as a writer. My number one goal is for the reader’s eye" to glide effortlessly across my writing, sentence by sentence, paragraph by paragraph, page by page. Especially as attorneys, we must make things easy for our readers. We are interpreting the law for people with a need to know. We mustn’t litter our readers’ path with unnecessary lawyerly words and long-winded phrases and sentences. Nothing should hinder the reader’s eye as it makes its journey through your prose.

Reading requires more of the reader than we sometimes appreciate. Each sentence, paragraph and page conveys thoughts that must be digested. That mental digestive process demands of the reader that she make use of her reasoning powers by defining, classifying and making logical inferences. The simpler the words, the shorter the sentences and the more engaging the construction of the text, the smoother the journey for the reader’s eye. Your choice of words, length of sentences and paragraphs, along with your syntax, diction and rhythm, must all be calculated to encourage the reader’s eye to glide across the page.

Words matter. If you wish to capture your reader’s attention, you must make it your practice to treat words with respect. Any word that impedes the reader’s eye must be omitted or replaced. You must develop the habit of scrutinizing everything you write; needless words must be deleted. All good writing is the product of rewriting. It’s unusual that the first draft of any substantial presentation will be of the quality you desire, namely, simple unadorned prose that impacts your reader. As discussed in Chapter Seven, with practice, patience and persistence, editing your own work will come naturally.

Equally important as some of the skill sets discussed in this handbook is the context in which we work as professional writers. It is frequently said: People’s attention spans have shrunk. I see things differently. We live in the most highly commercialized society in the history of civilization. Add the Internet and social media, and it’s a mix that troubles psychologists, sociologists and educators. From the moment we awake until we go to bed, whether driving in our car, surfing the web, opening mail (electronic and snail), watching television or looking at our cel phone, we are constantly bombarded with messages of one sort or another. Advertising resources seem infinite.

Yet human attention is one of the more finite resources. To describe the demand for human attention, one social psychologist uses the term the attention economy. Advertising is part of the attention economy; so are sports, politics, religion, journalism, all forms of entertainment, literature, social media platforms and, alas, even lawyers’ communications. It’s the nature of things that when you pay attention to one thing, you ignore everything else. "In an attention economy, one is never not on, at least when one is awake, since one is nearly always paying, getting or seeking attention."¹ (emphasis added) The average person’s attention span hasn’t withered; it’s overwhelmed. Understanding that distinction is critical to your ability to communicate effectively.

Your success as a communicator depends upon your ability to penetrate the mind and gain the interest of an audience being barraged with messages. Not an easy task. Your message must be tailored to swim in that rushing river of information. To grab your reader’s attention, your writing must stand out in a way that pleases the reader’s eye. All your research and carefully conceived positions run the risk of being ignored if you fail to structure your thoughts in a manner readily accessible by the reader. Don’t litter your writing with legaldegook.²

1.2 The Other Gettysburg Address

Attorneys are some of the most verbose people in our society. Whether trying to impress clients, colleagues or judges with their knowledge, or battling the fear of failing to address every conceivable issue, lawyers tend to say too much. While my primary focus is writing, many of the rules of restraint on writing apply with equal force to the spoken word. Less is more. The fewer words used to express your thoughts, the greater the likelihood they will be understood, remembered and embraced. Economy equals impact. A thimble full of simple words is a weapon, while a bucket full of highfalutin nonsense may doom you with your reader. Too many words tend to turn your message into mush. There is power in brevity.

For proof of brevity’s power to inform as well as its capacity to linger in the mind, we can look to Gettysburg, Pennsylvania, on November 19, 1863. That day, at the dedication of the national cemetery on the site where more than 3,000 soldiers died and 15,000 were wounded, the featured speaker was Edward Everett, America’s most sought-after speaker. Everett was a distinguished historian who had served as president of Harvard, U.S. congressman, governor of Massachusetts, secretary of state and U.S. senator. Remembrance of the dead was the theme of his oration. Everett used ancient Greece and its battle with the Persians to make sense of the carnage at Gettysburg. His remarks consumed nearly two hours. Everett was followed by President Abraham Lincoln.

Lincoln had little of Everett’s education. He had studied history, science and math on his own but read neither Greek nor Latin. Recalling his youth in frontier Illinois, he once wrote, If a straggler supposed to understand Latin, happened to sojourn in the neighborhood, he was looked upon as a wizard. Fol owing Everett, the president spoke for approximately two minutes. Lincoln’s speech totaled 272 words; 74