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Effective Legal Writing

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Effective Legal Writing

Effective legal writing is a necessary skill in the practice of law and lawyers do tend to write well. However, regardless of how effective a lawyer’s writing skills are, there is always something useful to be gained from a review of effective writing guidelines and advice. This presentation describes the basics of legal writing. All other types of legal writing are built on these basics. Several specific types of legal writing are then addressed with guidelines and ideas to help your writing remain effective.

Presenters

Kevin Johnson
General Counsel
Emporia State University

Transcript

Kevin Johnson: Welcome to this presentation on effective legal writing by Quimbee. My name is Kevin Johnson. This presentation includes a number of course materials, including today's slides, complete with detailed presenter notes. You can follow along with those slides, or just relax and enjoy listening to these recommendations on how to make sure your legal writing remains effective, which is what we all really want.

   Lawyers write. We write a lot, and we write a lot of different things for different purposes. Each lawyer develops their own style of writing, their voice, so to speak. But regardless of your personal style, there are guidelines to legal writing that can make each message, each writing, even more effective. Effective legal writing is not the same thing as creative writing. Although there are some profound legal writings, maybe including some of your own work, I do not think legal writing would be considered as literature. Instead it is a type of technical writing, but it does not need to be dry and boring and without appropriate creative expression. It does however need to be effective for its purpose. The purpose of this presentation is to describe guidelines for effective legal writing in general, as well as to describe guidelines for specific types of writing.

   Introduction. Even though I am giving this presentation on effective legal writing, I am not holding myself out as an expert on the subject, nor as a great writer. I did not create the guidelines addressed and described in this presentation. This presentation is a summary of lessons I have learned during my legal career. These lessons are from experience and from the wisdom of other lawyers who have helped me to become a better lawyer. Lawyers spend a lot of time writing memos, email messages, letters, contracts, pleadings and other court documents, briefs, summaries, policies, and any number of other written works. Different types of work have different purposes. Some contain what we hope are persuasive arguments. Some are instructions. Some are explanations, some are records or recitations of what has happened. Some are demands. Some are responses to demands, and the list goes on. However, each type of work has its own purpose. Writing everything in the exact same style as if everything is just a version of everything else is probably not an effective practice.

   It is important to understand what you are writing and what you hope to accomplish with your writing. It is equally important for a lawyer to write in their own style instead of trying to imitate someone else's style. We are most comfortable and most effective when we use our own voice to express ourselves. This presentation is divided into several sections, with the first being the longest. That section goes through the basics of legal writing. All other types of legal writing are built on the basics, but each different type of writing will have its own elements that go beyond the basics. The remaining sections of this presentation each address specific types of works, with guidelines specific to that type. There may be some overlap, but there is always something unique to each type of work you will write. No matter how accomplished you are as a writer, I hope you will find this presentation to be useful.

   Basics of legal writing. With anything you write it is necessary to know who your audience is, the purpose of your work, and what you need to accomplish with your work. These three things are not presented in any order of priority, they just have to be listed in some order. They are all equally important and all three must exist at the same time. Who is your audience? Who are you writing to? The categories of who you might be writing to are easy. It's your client, another attorney, the court, a partner, or whomever. But as you know, not all clients are the same, nor are all lawyers, partners, and anyone else all the same. The goal of knowing your audience is so you can determine how best to effectively communicate with that audience.

   Some clients will not understand things as well as others, and it will take a different message for them to understand. Some clients are difficult and any message to them might need to include more care in what is said and in how it is said. Some clients just want summaries. Other clients want details. The same idea applies to anyone you are writing to and who they are and what it takes to effectively communicate with them should be considered when preparing your written message. What is the purpose of your work? Common purposes include summarizing relevant events and/or issues, giving instructions on what will or needs to be happening, demanding what you want, responding to requests and demands, making a persuasive argument, a work in which you are explaining yourself or a matter for the purpose of covering your assets, and even sending a statement for payment of fees and expenses. Each type of purpose requires a little different approach to the style and content of the message, refined by making sure you are effectively communicating with your audience.

   What do you hope to accomplish with your work? Is there a particular action or response you are expecting, or are you just providing information? There will always be an outcome you expect as a result of what you write to someone. When you want them to do something specific, it is a good idea to tell them clearly what you expect them to do, including any deadlines or other conditions. Don't make people guess what you're wanting. They might get it wrong. Could be frustrating to you because you didn't tell them what you want. On the other hand, if you do not need them to do anything, it is a good idea to tell them that no action is required at that time from them. When you want a result, you need to tell people what result you want.

   Here are several guidelines for the basics of legal writing, and again, these are not presented in any particular order. They are all equally important. One. It is necessary to fully understand how to use the language in which you are writing. This includes things like words you use, using the proper form of the words you use, knowing how to write a sentence and a paragraph, proper spelling, proper grammar, correct punctuation, and all those things we should have learned in school. Language is our primary tool in attempting to communicate. Lawyers communicate all the time. Understanding your language, how to use it well, how to use it properly, is crucial. Number two. Do not write a legal writing in a foreign language unless you are as fluent in that language as you are in your native language. It is one thing to insert a word, a phrase, or a sentence or two, but if an entire work needs to be in a foreign language, use a qualified translator.

   Even if you grew up speaking two separate languages in your home and you feel equally confident in both languages, there's probably one language that is the one you use the most. Most likely it's English. Even if you do speak a second language very well, fluently, as a native, when you're putting something into a legal document, a contract, whatever it might be, in that language, it is still a good idea to have a translator do that for you. There's a lot more to legal writing, as you know, than simply being able to speak the language.

   Number three. It must be clear in your mind what you want to say before you can effectively communicate what you want to say. How can you tell someone else anything if you don't know what you want to tell them? Get your thoughts organized. Sometimes it's a very easy process to do. Other times it requires sitting and thinking about it. Take the time necessary to figure out what it is you want to say before you attempt to do it.

   Number four. In general, plain language is a better choice than not plain language. A writing is a form of communication, not an opportunity to show how smart you think you are. You don't want the recipient of your work to ask, "What is this person saying?" I'm sure you've received letters, memos, other communications, you read through it, and you have no real idea what the person's trying to tell you. You don't want to be the author of such a message, and it tends to be better to use plain language. Maybe not conversational language, but in some situations, depending on your audience, conversational language might be the way to go. But don't get impressed with yourself and your big vocabulary and how you can write complicated sentences. Sometimes people look at that and they say, "What is this person saying?" Keep it simple. Effective, but simple.

   Number five. Legal writing is a type of technical writing. It is not creative writing, although you can certainly be creative in your message and your arguments. I know an attorney who loves to put quotes from Shakespeare into arguments, briefs occasionally, different types of writing. He enjoys it. He says it adds some spice, some creativity to his message, and maybe it does. He seems to be very successful in what he does. So legal writing may not be creative writing, but it doesn't mean we can't be creative in how we compose our message in the way we describe something, in the arguments, how we present our arguments. Creativity does have a place, but you're not writing a short story.

   Number six. The worst thing any legal writing can be is vague or unclear. There are, there's case after case in the reporters all about contracts, statutes, other writings, that are vague. It's unclear. No one knows what they mean. That's why we have rules of interpretation because something was vague. Something was unclear. Also, as you know, if you write a contract and it's held to be vague or unclear, the meaning's going to be held against you. Vague and unclear are two things that I think we all know we need to avoid, but they can be very difficult to avoid. Language, as stated before, it's our primary tool. It's not as precise as it always seems, and sometimes it just comes out vague. But that's something that, to work on to try to avoid.

   Number seven. Develop your own style for expressing yourself. There is no reason to try to speak or write like someone who is not you. Just as you might make an argument in court to the judge, to the jury, you want to speak your own mind. You want to put the words, the phrases, the argument, into your own voice. Writing is the same way. We have a natural style for expressing ourselves. Build on that. It's what works for you.

   Number eight. Do not use words and phrases if you aren't 100% certain what they mean. There are words and phrases that I see sometimes and I think I know what they mean, but I do not use them because I'm not sure, or I look them up in a dictionary just to make sure I use it properly. Using a word inappropriately, depending what the word is, how inappropriate it might be in context to what you have written, can sometimes harm your credibility.

   Number nine. Do not use slang or idioms unless you are doing so to make a particular point, and then be sure you are using the words properly. For myself, my general rule is never use slang, never use idioms. Those things are very temporary. They have short lifespans, the words and phrases that are used, and what might be common or normal for me other people will laugh at and they won't know what I'm talking about. It looks bad, in my opinion, to use slang or idioms. But as I said, as the guideline states, if there's a particular point you want to make and you believe the best way to make it is to use something, then go ahead.

   Number 10. Do not rely solely on spell checking or on grammar checking, or on any other device built into the software you are using as you write. It is up to you to make sure spelling and grammar and every part of your writing is correct. I'm sure you've all seen things that have been written and the words to, too, and two are used inappropriately. You're, meaning the contraction for you are, is often spelled as your. A lot of things don't catch that. It's still necessary to go through what you have written and make sure it is correct.

   11. When people read what you write, they only have access to what you have actually written in order to understand your message. They cannot read your mind to know what you meant to write, but did not write. I have taught classes for college students before and would occasionally assign an essay or some sort of a short writing to the students, and every single time someone hands in their paper and then wants to tell me what they meant to write. That's an example, to me, of someone who didn't know what their message was. They aren't confident that what they wrote says everything. When we write, we have to put our full expression onto the paper. It's like the four corners ruling contracts. If it's not there on the paper, it doesn't exist.

   12. Be careful and deliberate when attempting to use humor in your writing. People do not all share the same sense of humor, and some people have no sense of humor. The same is true in attempting to inject emotion into your message. It can be very tempting to want to put emotion into a demand letter, or to a brief, or to some argument, and it can be done effectively. But it's important to use, in my opinion, the simple emotions. Appeal to something that most people would readily accept that's a proper emotion for this subject. Humor is more difficult. Humor is not the same. A lot of people laugh at one thing. They don't laugh at other things, but if you're going to use humor, and I have seen attorneys use humor very effectively, be careful. Be deliberate. Think about it.

   Number 13. If the person you are writing to does not know you or does not know you well, tell them who you are, who you represent, and why they should pay attention to you. Do not assume anyone will care about what you write unless you give them a reason to care. If I receive a letter from a law office, I receive letters from law offices all the time. I open it up and I think, "All right, what's this? Why should it matter to me? Do I have to do something now?" I don't like to have to hunt to find out who this person is. Whatever you're writing, identify yourself. "I am so-and-so. I represent the plaintiff. Here's what I want. Here's what you need to do." Make your presentation.

   So these guidelines for the basics of legal writing are general. I think they apply equally well to anything that we might write. Easily adaptable, and I'm sure that you probably can think of several other guidelines or different ways of expressing these guidelines that you have learned through your experience and through conversations you've had with other attorneys. The key is that these, I'm presenting these as the basics. Basics always need to be practiced, they always need to be remembered. They always need to be referred to because the basics remain, but sometimes we forget them. Sometimes we think we know them, and sometimes we may not remember them exactly quite right. So it's always good to look at the basics of anything.

   Letters, email, and messaging. I include these three things together because I believe they are basically three versions of the same type of writing. I use email more than any other thing of these items because it's convenient, it's fast, and it's effective. Even when I write a letter, a formal letter, I usually send it as an email attachment, although sometimes of course a letter is sent in the mail as a regular letter and it does tend to have more of an impact when you receive an actual letter than even an attachment in an email message. So there might be a good reason why to send the paper letter, either along with or instead of the email version. These forms of writing are the most personal of the types of things lawyers write, and by personal, I mean that these works are typically a communication between you and one or a limited number of other people. But these are still business or professional forms of communication. Even when writing to someone who is part of your personal life, when writing as a lawyer, it is important to write professionally.

   At the beginning of any message, quite often of course, the recipient knows who I am. I don't need to identify myself other than the heading. But if the person doesn't know me, or if they don't know me very well, I do identify myself, and I typically state the purpose of my message, my letter, whatever, at the beginning. I like people to know right up front this is why I'm writing to you. Don't make people have to hunt for why you are writing to them. Maybe it's just me, but it makes me crazy when I have to read one or two paragraphs before I find out what they want, why they're writing to me at all. Consider using language at the very beginning of your message, such as "I'm writing to you because," or "The purpose of this letter is," or "This message is in response to your message. See below," if it's in an email chain, or you can refer to the date of the letter. Somehow, whatever words are appropriate to the message, it's good I believe to say, "Here's why I'm bothering you."

   Suspense is great in a novel or a short story, or in a movie, but suspense is not great in a business letter. Emails and other forms of messaging tend to be written more informally than an actual letter. This is true whether the letter is attached to the email message or not, or sent old fashioned. However, it is generally better to use complete sentences, actual paragraphs, and to write in the same style as you would in a letter. The reason is that informal writing can easily lead to a misunderstanding of what you are attempting to communicate, or even if clearly understood, being informal may not effectively convey the same sense of importance or urgency that you may wish to convey. Also, by using more formal language, it doesn't have to be stilted formal language, but paying more attention to the basics and writing in email message, it's more likely to make sure your message is more appropriate.

   There are email messages that you've received I'm sure where it seems as if the person was sitting at their terminal, at their screen, didn't get it, that what they're sending is going to be read in a certain way, a different way than perhaps they realize. Sometimes this is because they write too personally, or they write too brief, or they're in a hurry. The writing deserves the time it takes to get it in there, to use the proper language, to use the proper guidelines, to apply the proper guidelines. You want good communication. You want to be taken seriously. You don't want to be ignored. When you have said all you need to say in your letter or your message, you're done, and you may very well have finished all the meaningful communication before you realize you are done.

   People have attention spans, sometimes very short attention spans, depends who you're writing to, and they have many things to do during the day. Perhaps a letter truly needs to be lengthy in order to properly and effectively be a complete and meaningful communication, and this is true. We do sometimes need to include a lot of information in a letter that we're sending or in an email message, however it is, or it might be a brief email message or a cover letter with a number of attachments because there's just a lot of information that needs to be communicated or shared. But as much as possible, especially with just a letter itself, aim for a letter that is no longer than one page. I have received letters sometimes that are 10 pages long, and my first thought is, "Oh my gosh. What takes 10 pages of paper to tell me? What's the message going to be?" I like to know right up front, "What is this?" Tell me everything. If there is more, of course include more, but it's better to include less.

   People will stop reading or paying attention when they're done, and you want them to be done at the same time you're done. Remember that once you mail a letter or send an electronic communication in any medium, that communication is no longer under your control. The recipient may or may not share it with the entire world, or with some subset of the entire world. Even when you state that the message should not be shared, it might still be shared. Yes, of course you can try some recipients to preserve confidentialities in the message, but the message is still out of your control. Therefore, be prepared to stand by and to defend your message to any extent necessary. Pay attention to what you write. Pay attention to the words you use. If you decide to express emotion in your letter, righteous outrage or indignation, think carefully about that. It might be received as intended by the recipient, but someone else might see that message. It might be someone might see it over their shoulder, someone might pick it up off the desk.

   That person might be irritated with you for having written the way you did and send it to someone else. "Look what this person wrote." The next thing you know, a lot of people you never intended, or perhaps even expected to see it, have seen it and they are not pleased, and you might be entirely correct in everything that you said. You might have said it very well, but you need to pay attention carefully when writing these types of messages so that if it comes back to you and people are outraged, then it's because you expected it, you anticipated it might happen, and you stand by it. You don't want to get into the situation of having to try to explain what you really meant to say. We see that on the news with politicians and others. They'll say something. It's quoted differently. It's shared differently, and then they spend the next week trying to explain lane what they really meant to say or how they were taken out of context. That's not what you want to have to do. Think it through. Your message is your message. It's what I intended. I stand by it.

   It may not hurt to ask yourself before you write something, "Is this letter or message really necessary?" Most likely it is really necessary. I don't think you're going to be sending a lot of unnecessary forms of communication. You have other things to do besides waste your time that way. But once in a while, you might be thinking about sending a letter, writing a message to somebody about something, and maybe you're going back and forth in your mind, "Should I bring this to their attention? Is this something I want to take a position on right now?" So it's always good to think it through a little before you push send or drop it in the mailbox, "Is this the right message at the right time to the right person?" And one thing to always remember, and there are horror stories about this, you've probably heard the horror stories and maybe been involved in them, address the message correctly.

   Double check the address line. Is this the person I want it to go to? If there are two or more people with similar names in your potential audience, have you listed the right person? If you're going to send a copy to somebody, do they need to have that copy, or do you want the main recipient to realize copies have been sent? Now you can send blind copies, but sometimes the same message might be sent to the recipient, and then you might send it separately to other people that you believe need to also see that message. So that's something else to consider. Letters, emails, and messaging seems so simple, so common. We do them all the time. We do them many, many times during the day, in particular email, but they are much more tricky than you realize. Think about it, pay attention to it.

   Memos. This includes memos you write to yourself and only for yourself. We all do that sometimes, memos to file or a memo you stick away somewhere to remind you of why you did what you did. Memos for use inside your firm or organization, memos explaining some personnel issue, memos commenting on a plan that the firm is considering, memos that need to be shared with the people that you work with, memos to clients. Memos to clients are often explaining in more detail than you want to put in a letter their situation, or what they need to do and why, and memos to others. We attach memos to things all the time. Memos might even be included in a court document of some sort. Regardless of how the memo is used or what it's for, memos are a personal form of communication, like a letter, in that they tend to be written from you to a specific other person or a limited group of people. Memos, though, are generally intended to be longer than a letter and to be written to someone with whom you already have some sort of professional relationship.

   So you may not need to explain who you are at the beginning of a memo. People want to know who wrote the memo, but they probably already know who you are and why you're writing the memo and how this memo might have come to be. Every memo should be considered to be a formal legal writing. If you wish to include a personal or informal message with a memo, it may be best to include that message in a cover letter that you send with the memo. The memo itself is often, it's a discoverable document in case you end up in litigation or it becomes necessary to share. A memo is quite often relied upon by a decision maker as the basis for their decision, or at least as one of the factors that went into the decision. If that decision is later challenged or questioned in any way, they're going to fall back on that memo. That memo, therefore, needs to be well written, very professional, and not personal.

   In my opinion, every memo should contain a heading of some sort. It can be, look any way you want, but a heading where the intended recipient is named, along with their title and other status relevant to the subject of the memo. It should also include the name and title of the author of the memo. The date the memo is given, that date can be very important, as well as the subject matter of the memo. The point is that it should only take a quick glance to be able to identify who the memo is between and what it is about. The date to me is very important because it sets the timeliness of the message. The next day, the memo might be written differently. Things might change. It also allows things, when you're putting together chronologically, you know where that memo's going to go. I've seen a lot of memos without dates on them, and perhaps for a reason. But in my opinion, that date is good. The subject line is very good. It helps people to understand right away what this is going to address.

   The format for the body of the memo can take any number of forms. If it is a lengthy memo or a complex memo, it may even contain a table of contents and/or an executive summary at the beginning, and this would be something that may be tens of pages long. If the memo has been written in response to a question that needs to be answered, such as, "Where are we on this issue? What do we do next? Can we do what we want to do?" is a good idea to put a brief statement containing the fast answer to the question at the beginning of the memo. People like knowing answers as soon as possible. That's true for us. How many times have you received an appellate decision or a written decision from trial court? First thing we do, we go to the back page to see what the decision is. Then we go back and read the decision, the memo that goes with it. People want to know. Is the answer yes? Is the answer no? Then I'll read the reasons why.

   When writing the memo, always remember the purpose for writing that memo. Keep this purpose front and center in your mind, and write the memo in such a way that every sentence and paragraph is there only because it addresses the purpose of the memo. All parts of the memo should further the purpose of the memo. Don't waste the recipients time with information and content that really doesn't add anything. Don't pad the memo. Don't think that by making it longer, it has more credibility. Just write your message, but keep your purpose front and center. This is one area where legal writing might have something similar to creative writing. In creative writing, it's, the advice often is every word, every sentence, every bit of punctuation in that story is there for a purpose. It moves the story along. If it doesn't move the story along, it shouldn't be in there. In my opinion, when writing a memo in particular, everything in there should move the purpose of that memo to its conclusion.

   People don't want their time wasted, and also you won't be wasting your time if you make it to the point without putting in a lot of extra things, and if you somehow think the memo should be 20 pages long but you're done in five pages, it's a five page memo. End the memo with your conclusion and with any recommendations. If you have given conclusions and recommendations in the body of the memo as you addressed the various issues, it doesn't hurt to summarize them altogether at the end. For me, if I begin a memo with "Here's the reason for the memo. Here's the short answer to your question. Here's the short answer to what we need to do next," and then the body of the memo explains the rationale for all that, and then the end of the memo says, after the person has read everything, restates the conclusion or the answer, but in a bit more detail. It might be summarized, but it's still a bit more detailed in the beginning. It bookends the beginning.

   So the person reads the memo from the beginning understanding what they're going to be reading. When they finish it, they understand what they have read, and there are the recommendations all set out in a nice order on one page, or however long it is, instead of having to go back and hunt through the body of the memo to find each recommendation separately. Make it convenient. Make it as easy as possible for the recipient of your memo to read and understand and appreciate your hard work.

   Contracts. I have always enjoyed contract law. It's something that's been a big part of my practice. I've been involved in litigation with contracts. I enjoy writing them. They're fun to me, and I think there's only two real issues in any contract case. First, what is the agreement of the parties? Two, let's enforce the agreement of the parties. The best evidence for answering that question is, as to the agreement of the parties, is the contract document itself, and for that reason the way a contract is written is absolutely crucial. It is this... It will be the reason why a case goes well or doesn't go well. The worst thing a contract can have is vague or unclear language. The second worst thing a contract can have is missing language. It can be exceedingly difficult to avoid these problems. For one thing, written language is not as precise a tool as it might seem for fully describing the agreement of the contract parties. In addition, not everyone who writes contract language is a lawyer, and just because a lawyer writes the contract, not every writer is equally effective.

   Another problem is that the person writing the contract may not be familiar enough with the industry or the business or the dealings of the parties. It takes real effort to successfully avoid vague language, and to be sure everything that needs to be in the contract is in the contract. If you write a contract for a party whose business you're not that familiar with, you need to spend some time talking with your client. You need to find out what's important to them. What does this mean? What does that mean? You've got to understand. You've got to make yourself competent to write a contract of that particular subject matter. Everything you include in a contract should be included only because it helps to clarify and clearly describe the agreement of the parties. It is okay to be redundant and to state the obvious if it helps to make each part of the party's agreement clear. It is not necessary that an English teacher, or a teacher of whatever language the contract is in, would approve of how the contract is written.

   In my mind, the ultimate audience for any contract is the judge that may have to interpret it in order to determine what the agreement of the parties is in order to enforce their agreement. Lot of times, language in a contract is, it does seem kind of silly to state it the way it's stated. But as I'm sure you've experienced, it's there for a reason. When a payment due date is given, payment is due on the first of the month, not the second of the month, not after the second of the month, but on the first day of each month, of course, right away, there is a vague issue. The first day of the month. Is that first business day, first calendar day, first day this particular business is open? It's important to be precise, to say what you mean, but sometimes to say what you don't mean because people will wonder or people will try to twist it around.

   Courts love the plain language rule. Clients like it too. I think most of us lawyers like the plain language rule. Whenever possible, use plain language throughout the contract. This will include, of course, well written sentences, paragraphs, use of the proper words and using words properly, and good punctuation. Plain language, it's sometimes language seems very plain to a lawyer because we read contracts so often. We are used to certain phrasing that is there for a reason. It complies with the statute. It complies, perhaps, with case law that has, applies to the party's business, and sometimes we do use sentences that are a bit more complex than we might write it if we were strictly following the plain language rule. But in general, the same words and phrases that would appear in a magazine article, or a book, that's the language to write a contract in. People like it. When using technical terms or terms of art, be sure they are used properly. The same guideline applies when using abbreviations acronyms, and you may already have been doing this for a long time.

   It's not uncommon, especially the longer a contract is or the more technical the contract business is, to include some definitions, or at the very least to define a particular term the first time it's used in the contract. You give the term, parentheses, maybe a short definition. If there are a number of terms, it might be a good idea to just have a definitions section in the contract, kind of your own dictionary for that particular contract. Same thing with abbreviations. An abbreviation shouldn't be used the first time the name is referred to. It should be spelled out entirely, parentheses, the abbreviation, and then you're good. Same thing with an acronym.

   Boilerplate language definitely serves a purpose in written contracts, but why include boilerplate that does not really apply to the contract? Any language included in a contract that is not relevant to interpretation of the contract and/or of the party's agreement is a potential problem. While such language will most likely be ignored, it is extra stuff that is still a part of the party's agreement. A contract should only include language that describes the full agreement of the parties and no more. Once the full agreement has been described, there is nothing left to describe. Some clients in particular may want you to use this long list of boilerplate because over years, in their experience they've learned this covers every potential problem we're going to have and we want to address it in every contract. Fine, but sometimes the boilerplate just simply doesn't apply to that contract, and it might be a good idea to take it out. Things that are in a contract that aren't necessary can occasionally contradict or conflict or raise a question with other language that is necessary.

   So when I say extra stuff, it's that extra stuff that might get in the way. It's like putting sand in the gear box. It shouldn't be there. It's going to interfere with the smooth operation of the gears. Sometimes a client still wants certain things included in their contracts, or at least in all contracts, meeting certain criteria. As appropriate, advise the client why it may not be a best practice to include language that is not relevant to the contract, as I just described. However it is the client's contract, and clients will make decisions for their own reasons. Just be sure they're making an informed decision. This particular issue comes up a lot in government contracts, and government agencies sometimes have required forms, statutes, language that have to be included in their contracts. Sometimes they don't really fit. Sometimes they don't apply. Sometimes they require things such as compliance with a particular law that's not even an issue in a particular case or agreement.

   If the government agency says it has to be in there, sometimes they'll negotiate and take it out because it doesn't make any sense. Other times, it's going to be there and that's just the way it is. But it's good to confront that. When referring to other documents or resources in order to include them as part of the contract by reference, be sure to properly and fully describe the other document or resource. Give it its full name, full name and title, maybe any subtitles it might have, so that when someone sees that document or that resource, they know exactly what you're talking about. Even when the resource is physically attached to the contract, the proper reference makes certain that all parties understand exactly which resources are part of the contract and which are not. It's very normal now for things to be incorporated into a contract by reference that are found on a website, one party's website. Be sure to identify that webpage, maybe give an address, the title, so it's very clear that when I go look it up I'm looking at the same thing that this person intended me to look at.

   They need to be clear, otherwise it is vague. It raises a question. When several documents make up, the entire agreement of the parties, include in the primary document language that prioritizes how each document will be referred to when interpreting, when understanding, and when enforcing the party's agreements. If the total contract includes five separate documents, and each might have been prepared at different times and serve a different purpose, state when interpreting and enforcing this contract, this document, and give it its full name, has priority. This one is second. Then this one, then this one. It's a roadmap. It's a guide to tell you how to understand the contract. Contracts basically, in my opinion, are instructions. They're descriptions of a party agreement and their instructions on how the parties are going to perform their agreement. So everything in there needs to be clear. It's difficult. It can be done of course. It is done all the time, but there are still vague things. It's always a never ending challenge, which I think is why I like it so much.

   The bottom line with any contract is to be as clear as possible and don't leave anything out. Also remember the rules of contract interpretation because that's what a judge will use if the judge has to get into your agreement and interpret it.

   Pleadings, discovery, briefs, court documents. Case strategy and tactics is the most important element when writing anything to be used in litigation, period. That always comes first. Everything you do during a contested matter is because you want to win. It's because you want your client to have the best possible outcome, and so that's your focus. At the same time, we must remember our ethical requirement to exercise candor toward the tribunal and fairness to the opposing party and counsel, which are rules 3.3 and 3.4 of the model rules of professional conduct. In other words, be truthful. Don't lie. Don't misrepresent things. We don't have to share things or provide things or do things unless we're required to or unless we're asked, but when we do have to provide something, it needs to be what we have to do, and when we take a position it needs to be supportable.

   The second most important element is to observe the basics of effective legal writing. Everything, we must observe the basics of effective legal writing, other elements that can have specific import to court documents, regardless of what it is, why you're writing it, what your position is. One, be deliberate in what you include in your documents. Everything there is because you intend it to be there. Everything there is because you need it to be there. Anything less than that, you shouldn't have it in there. Observe local rules and rules of the court when preparing everything you write. Sometimes a judge will let it slide. Sometimes a judge gets really bent out of shape if you don't do that. It's very simple to observe those rules. When writing a brief, be brief. If possible, be even briefer. There are reasons why Supreme Court rules and other rules that describe the format of a brief to be filed with an appellate court, or even in a trial court, have page limits. No more than this many pages, one inch margins, whatever the rules are, whatever the guidelines are, it's there because the courts don't want a manifesto.

   They want the issues clearly identified, the arguments clearly set out, what you want clearly described, why they should listen to you clearly described, and then your conclusion. I've heard, you've probably heard many judges over the years say "It's a brief. It's called a brief on purpose." They really mean that. Take extra care to make sure that what you write is understood as you intend it to be understood. This is tricky. I'm writing this sentence. It can only be read and understood in one way. Well, be sure about that. One size does not fit all. Often, we use templates or former versions of what we're using now as a guide, but they're meant to be customized. Don't just cookie cutter each initial set of interrogatories for example. Why am I asking these questions? Maybe there's a good reason to ask these questions each time, but why?

   No matter how well you write, your opponent is still likely to insist that your work means something different than what you say it means, and that's because it's a conflict. It's adversarial. You write this sentence that could only be interpreted in one way. You're convinced, but the other attorney gets a hold of it and says, "Well, what you're really saying is this, and we don't have to do that." Now sometimes of course they're wrong, but that's a test as to how well you have written your court document, whatever it is that you're writing.

   Articles. These are articles that might be submitted to a professional journal, to a local bar journal, or to another local business publication or any other type of publication, whether online or even a print publication, and these guidelines of course apply to articles that have some sort of a legal issue as the purpose. Most publications, regardless of the type, have their own guidelines for how articles are to be submitted. Be sure to get a copy of those guidelines and be sure to comply with them. Virtually everything, every publication has their guidelines posted on their website. They may want you to use a particular style of writing, a particular way of referencing your citations and your sources. That's what they mean, and they may not want you to use footnotes. They may say just include it in the body of your work. It's going to be different from one publication to the next, and they will not consider, typically, anything that they receive that does not fit their publication guidelines.

   When writing about cases or experiences as an attorney, especially when giving examples of things, or maybe you're writing an article about a particular case that you handled, be careful not to breach any confidences or privileges. You still have a client. Maybe the client's in the past. There's still that attorney client relationship. There are still all of our ethical rules that apply. You can't go speaking publicly or sharing confidential information. That may include not using anyone's real name. It may include not covering certain aspects. You need to use your own judgment on how that works, but just remember confidences need to be preserved. Each type of publication has its own audience. That is your audience. Now you may have written an article first and then you're looking for an outlet to publish it, and that's fine. When you find an outlet that's interested, you might want to look at your article to make sure that it adequately addresses the audience of that publication. You might need to change it around a little bit.

   Also, if it's a journal or a business article or a publication, you might be writing for lawyers. You might be writing for law students. You might be writing for very experienced, seasoned attorneys on a particular subject matter, brand new lawyers, business people, how people who are not lawyers can handle illegal matter on their own, all those sorts of things are possible. That's your audience, and you need to write differently, if this has been talked about before, depending on who your audience is. Be careful when expressing humor or satire or sarcasm. This can be a great way to make a point, but it is also a great way to alienate your audience. Things like humor, this emotion, people handle those things differently. People evaluate things differently. Something that might be good sarcasm, a good analogy to you, irritates somebody else. So when you use those types of things in your article, use it for a point. It furthers the purpose of your article, but use it well.

   Never assume what attitudes the audience has about anything. Unless the purpose of your article is a particular viewpoint, either be neutral or acknowledge that there are differing points of view on your subject. Again, you don't want to alienate the audience. If you are pushing a particular agenda or just a viewpoint, or just trying to argue one side of a contested matter, express that, state that. I'm taking this viewpoint on purpose. I'm not expecting you necessarily to agree with me, but I am taking this viewpoint. Here's why, and here it is, and you can acknowledge here are their other points of view. You don't want to alienate your audience. That's the key.

   No matter how great of an article you write, there will be an editor who will decide how and it will be published. Work with the editor. Sometimes the editor says, "This is fantastic, but it's too long. You need to cut something," or something else that means your article has to appear in print a little bit differently. Sometimes the editor may just make edits without telling you about it, and then when you see the piece published it looks different. It might be dramatically shorter. It could be presented in a different order than you wrote it. Depends on the publication. That's one of the things to check out before you submit something. How do they handle editing? But the bottom line, again, in writing an article, work with your editor, follow the rules of the publication, and consider the publication's audience as your audience.

   Press releases. A press release is anything that you author or advise your client as they are authoring, they want to take a position publicly on something that's important to them. It might also include the text for an oral statement or an interview. Regardless of the format that it's in or the reason for it, the reason should be very specific. Why are you doing this? Think about it carefully. Most press releases do not change anyone's mind. If you simply want to explain something or to attempt to explain something, that's a good reason. If you want to change someone's mind, you may not be successful. Every press release should be short and to the point. This is not something where you want go on and on and on. You want to say what you have to say, and then stop saying it.

   Press releases are most likely to be edited before the outlet publishes your press release. Be prepared to respond to inquiries if the editing changes the meaning or context of your message, and it often will. Depending on the outlet who's going to pick up your press release and publish it, they may only be interested in certain bullet points that they can draw out of what you have written. They may have their own agenda that they want to further, and they may only take bits and pieces of what is in the press release to further their agenda. You never know what's going to happen. Be prepared to respond to inquiries about any press release. There will always be misunderstandings. There will always be people who disagree with what you have said. There will be sometimes people who are angry, and sometimes if you're lucky, someone might even appreciate the press release.

   Press releases are kind of tricky. I have, over the years, developed the idea to tell my client, "You don't want to issue a press release." They never seem to be received in the way intended. They're quoted out of context frequently, or they're ignored. But if a client wants to do it, they want you to write it, they want you to be involved in the writing of it, consider these guidelines to try to make it a source that helps as opposed to just adding another layer of problems.

   In conclusion on effective legal writing, we do it all the time. I'm sure that you are a good writer already and you'll become a better writer the longer you do it. But I've gone through some of the guidelines that I've learned, that have been pointed out to me. They've proven helpful for me. I hope this has been helpful for you, and good luck with all your future writing.

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1h 07s

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