Getting paid to write is, at least for me, the best part of being a lawyer. But while I may be, strictly speaking, a “professional writer,” I’m very much aware of my shortcomings in that field. And I’ve got plenty, as illustrated by the fact that–not to put too fine a point on it–nobody actually wants to read the stuff that I get paid to write. Judges and opposing counsel read my work because they have to; that certainly doesn’t mean that they like it. My clients read it because they’ve already paid for it. And my partners read my stuff primarily to make sure that our firm doesn’t get sued for defamation. Aside from that, there’s really not much of a reader base for my legal writing. If you don’t believe me, check the Amazon sale rankings.
So long story short, plenty of room for improvement here. That’s why I’m always on the lookout for ways to better the quality of my writing.
This brings us to last week’s Appellate Advocacy in Virginia seminar, which was presented by the Appalachian School of Law and Virginia Tech’s Science, Technology, and Law Program. The program offered tons of great content, including candid advice from Chief Justice Lemons, Justice McClanahan, Chief Judge Huff, Monica Monday, Frank Friedman, and Trish Harrington. (Maybe we’ll reward their candor by spilling their secrets in the weeks to come.) Jeffrey Breit gave us a sneak preview of the William & Mary School of Law’s video project, The Art of Appellate Advocacy, which will be unveiled next week at the state bar meeting. It looks fascinating.
Among the highlights of the strong program was Professor Timothy Terrell‘s discussion of legal writing. Professor Terrell is a co-author of Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing. (Amazon Best Sellers’ Rank: 168,037 in Books, 46 in Books > Law > Legal Education > Legal Writing. Clearly I can learn from this man.)
I haven’t read Professor Terrell’s book and was unfamiliar with his work going into the seminar. One of his major arguments seems to be that most technical writing (including legal writing) fails at the macro level because it dumps too much information onto the reader without offering any context or structure. His basic analogy is that if the information in a writer’s head is a liquid, too many legal writers just pour that information out directly onto their reader, without giving the reader a container in which to collect it. Thus, Professor Terrell stresses the need for “meta-information” in legal text–signposting, structural cues, and the like. The trick to good technical writing, in his view, is to make very complicated information seem straightforward and accessible. One of his mantras is “focus before detail”: Let the reader understand what it is that we’re discussing before going in for the deep dive.
Of course, you’ve heard advice like that before. And that last paragraph came at such a high level of abstraction that it provided exactly zero useful tips for actually improving your writing. What does Terrell’s advice look like in practice? How would we write a paragraph or two that gives a reader “focus before detail”?
Glad you asked, Imaginary Argumentative Reader.
Professor Terrell would direct you to do three things in your introduction, and really throughout your document:
- Make your reader smart.
- Make your reader attentive.
- Make your reader comfortable.
First, make your reader smart: Before digging in, forecast the information that you’re about to provide. This can be done in several ways:
- Label: Tell the reader what the document is about, so she can put it in context. For example, “This is a breach of contract case that turns on a single issue: Whether the trial court erred by admitting parol evidence of blah blah blah . . . .”
- Map: Preview the document’s structure. For example, “Summary judgment is appropriate for three reasons. First, blah blah blah. . . .”
- Point: Let the reader know what she should be looking for as she makes her way through the document.
Second, keep your reader’s attention. Professor Terrell offers two basic tricks here:
- Bottom Line: Tell the reader how your document will help her in real life. Your powerful, syllogistic reasoning compels a certain result. Help the reader to understand why that result is important. Connect it to the reader’s circumstances. For example, “If the Court upholds this sanction, it will effectively eliminate blah blah blah . . . .”
- Efficiency: Show the reader that you will not waste her time. Don’t be repetitive or verbose. Don’t present irrelevant information.
Third, make your reader comfortable.
- Language: Using plain English and a classic prose style will show your reader that you are a normal person who occasionally interacts with other humans in their natural habitat. This is surprisingly important.
- Ethos: Show why the result you seek is just and fair; this is far more compelling than bare legal argument. Also, show by your content, tone, and word choice that you are not an asshole. (Pro tip: If you are using adverbs to characterize your opponent’s actions, you are being an asshole. Trust me on this one.) These steps will suggest to your reader that you share some basic assumptions and worldviews, and help to put her at ease.
Overall, I found Professor Terrell’s presentation engaging, and I look forward to reading his book.