Effective Writing, Effective Writing, Organizing & EditingOrganizing & Editing

“There is no such thing as good writing. There is only good rewriting.”

-Justice Brandeis© Professor Mathis Rutledge

The PredictionThe Prediction

When you make a prediction, be sure to include your reasoning

The PredictionThe Prediction

What side am I on? Be objective It’s okay to flip flop during the writing

process, but after editing Make a Decision/Prediction

Addressing Opposing ArgumentsAddressing Opposing Arguments

Brainstorm and make a list Could a counter-argument be made based on the

plain meaning of the rule, case comparisons, or public policy

Look at what parties argued in similar cases Look at dissenting opinions If possible, explain how the client can address

the opposing argument What is your prediction regarding its success

Analogous CasesAnalogous Cases

Before describing, set out the rule or point the case is used to illustrate

The proximity of the structure to the primary residence is also a relevant factor. In McIntyre, for example, when holding that the porch . . .

In the cases in which the courts have held that the plaintiff consented to the interception, the defendant had told the plaintiff that all of his or her phone calls would be intercepted. For example, in Griggs-Ryan v. Smith, the defendant . . .

Explain Your ConclusionsExplain Your Conclusions

Give a reason to support your conclusions Don’t make unsupported conclusory

statements Explain WHY the factual similarities between the

cases are significant

Roadmaps & TransitionsRoadmaps & Transitions

A roadmap places things in context for your reader

Transitions tell the reader where they are, what to expect, and how the pieces are connected. Example: Ms. Johnson can make four arguments.

First, she can argue that . . .Second, Ms. Johnson can argue that . . .

EffectiveEffectiveTransitionsTransitions

Refer to cases, or puts things in context In Hughes, the Court found In the instant case From the Plaintiff’s perspective

Generic transitionsGeneric transitions

Generic transitions link sentences & paragraphs

Important, but overuse is distracting Don’t become married to one word

However Although Like See H-37-38

Sophisticated vs. UnsophisticatedSophisticated vs. UnsophisticatedRoadmapsRoadmaps

Avoid first person pronouns Focus on the Court as actor In this memorandum, I (we) will examine

three issues. First, I will look at whether the statute applies. If I find that it does not, then I will look at whether the Oregon Wilderness watchers had an easement. If I find that an easement was created, then I will examine the scope of the easement.

Sophisticated VersionSophisticated Version

In deciding this case, a court will consider three issues. First a court will determine whether the statute applies. If it does not, the court will then determine whether the Oregon Wilderness Watchers had an easement. If the court determines that an easement had been created, the court will then decide the scope of the easement.

Organizing the IssuesOrganizing the Issues

Familiar Order - if elements are listed in logical order (criminal, contract issues)

Threshold Issues – if have an issue that will be dispositive Standing – criminal case; exhaustion of

administrative remedies Remember factors are flexible standards.

Elements are requirements. The absence o a factor is usually not dispositive

Effective Sentences, Paragraphs & Effective Sentences, Paragraphs & WordsWords

Involves editing “There is no such thing as good writing.

There is only good rewriting.” -Justice Brandeis The best writing uses your own language

Avoid overuse of quotations

Word ChoiceWord Choice

Should be precise and correct Beware of shades of meaning

Problem WordsProblem Words Regardless is a word. Irregardless is not. Judgment is preferred spelling in American legal

writing over judgement (used in British writing)

That vs. Which. That refers to necessary information. The clause that you need the most is not punctuated.

Which is used for alternate information that is nonessential to the sentence’s meaning. The clause, which is not essential to the sentence,

disappeared from the eye when it was set off with commas.

Problem WordsProblem Words

i.e./e.g. – i.e. is an abbreviation of id est – “that is,” and is used to indicate an inclusive list or statement. I like literature; i.e., I read everything I can get

my hands on. Compare with e.g., an abbreviation of

exempli gratia means for example. I like literature; e.g., I am reading all of Alice

Walker this month.

Problem Words-Affect/Effect Problem Words-Affect/Effect

Affect – verb: to influence; to cause a response.

Effect – noun : result or accomplishment; or as a verb – to cause or bring about – common use in legal writing

Effects (plural noun): goods or property: The deceased man’s effects were willed to charity.

Problem Words: Its/It’sProblem Words: Its/It’s

Its is possessive Mary knew the paper had its faults, but she did not

know how to fix them. It’s

is the contraction of “it is” or “it has” It’s clear to me now how “it’s” become such a

common mistake.

Commonly Confused WordsCommonly Confused Words

Statue Council Ensure It’s Cite Principle Compliment Tortious everyday

Statute Counsel Insure/Assure Its Site Principal Complement Tortuous/Torturous every day

See Brian Garner’s Redbook for additional examples

Order ideas logicallyOrder ideas logically

Brainstorm, then group ideas create pre and post drafting outline write main ideas in margin in rough draft Pull out the topic sentence out of every

paragraph, can the reader get the gist of the memo

Does the order of the question match brief answer, rule explanation and application?

HeadingsHeadings

Roadmaps, guide the reader Satisfy the reader’s needs

Element One; The Line-up; The Admissibility of Line-up Identifications

HeadingsHeadings

Consistency is key can’t have A without B; I without II formatting - sentences, typeface

Should always be independent of text Never count on the reader to review the heading to

understand the text

ReadabilityReadability

Don’t make your paragraphs overwhelming (too long)

Each paragraph should have a topic sentence (provides context)

Include transitions Watch out for extra-long sentences (more than

4 lines) and consider revising

Paragraphs - LengthParagraphs - Length

Avoid over-using long paragraphs (7-8 sentences) 8-sentence paragraph is about a full page of type A full page paragraph will have a negative visual

impact on your reader Length is ultimately determined by content Variety in paragraph length will keep your

reader interested Too many short paragraphs makes writing

look choppy

Watch for Parallel ConstructionWatch for Parallel Construction

When you have info in a series, the information must be of the same grammatical type (nouns, adjectives, verbs, etc.)

Ex: The judge excluded the evidence because she thought it was irrelevant, immaterial, and bound to be prejudicial.

Better: The judge excluded the evidence, holding it irrelevant, immaterial and prejudicial.

Parallel ConstructionParallel Construction

Ex: The detective proposed a plan to raid the drug dealer’s office and arresting all his workers.

Better: The detective proposed raiding the drug dealers office and arresting all his workers.

Sentence ReviewSentence Review

Subject + Verb (& sometimes an object) = sentence

Thomas researched the law Subject + verb + object

Missing subject or verb = fragment

Short sentences are bestShort sentences are best

Too many ideas in one sentence is difficult to follow

But, too many super short sentences can make writing seem choppy

Don’t forget your articlesDon’t forget your articles

the, an, a Omitting articles is a common mistake for

students concerned with verbosity Especially a problem with English Second

Language students Leads to choppy, unsophisticated writing –

resembling a police report Ex: Plaintiff claims that cat turned on him and

scratched him before ambulance arrived.

Check your punctuationCheck your punctuation

Comma usage Semi-colons Colons Apostrophes

Punctuation can alter meaningPunctuation can alter meaning

http://www.youtube.com/watch?v=gt0T23gQMU0&NR=1

See handout

Dealing with NumbersDealing with Numbers

Numbers under 100 must be spelled out Exceptions

Dates, time of day Addresses Fractions, decimals, percentages, scores, statistics Exact amounts of money, identification numbers (serial

numbers)

See Diana Hacker p. 288 or Bluebook Rule 6.2

Cutting the FatCutting the Fat

Editing

Effective Sentences - ConciseEffective Sentences - Concise

Don’t worry about conciseness or order in first draft

Cut the fat during editing process

Four Easy Ways To Cut The FatFour Easy Ways To Cut The Fat

Avoid nominalizations Avoid meaningless phrases, lawyer talk and

pompous language Prefer the active voice Keep subject, verb and object close together

NominalizationsNominalizations

Take a perfectly good verb and turn it into a noun

Focus on the real action The parties reached an agreement on the

settlement terms. Real action isn’t reaching, it’s agreed

The parties agreed on the settlement terms.

NominalizationsNominalizations Typical endings: --al; --ment; --ant; --ency; --ion; Lead to verbosity

made a statement stated made the assumption assumed determination determined Commencement commence or - begin

Through justification of the evidence and explanation of the determination of outrageous and extreme conduct Lamar satisfies all three elements establishing a prima facie case of intentional infliction of emotional distress against defendant Waters.

Meaningless words and phrasesMeaningless words and phrases

Beware of “it is _____ that” pattern It is essential that essentially It is obvious that obviously It is conceivable that conceivably It may be argued that arguably it should be noted that omit It is important to note that omit

Meaningless Words & PhrasesMeaningless Words & Phrases

Does the phrase add anything kind of; practically because of the fact that because for the purpose of to for the reason that because In the case of in he was aware of the fact that he knew

Pompous Language & Pompous Language & Lawyer TalkLawyer Talk

Elucidate explain notwithstanding the fact that although endeavor try supposition belief; thought

Delete Redundant wordsDelete Redundant words

Includes words implied by other words or words that simply repeat the meaning of other words first and foremost true and accurate basic and fundamental terrible tragedy free gift

Prefer the Active VoicePrefer the Active Voice

Use the actor as the subject, not the object Subject - noun; object - noun that receives the

action of the verb. Subject + verb = sentence. Some verbs need

an object Lawyers [subject] make [verb] arguments

[object] or Lawyers argue.

Prefer the Active VoicePrefer the Active Voice

Find the subject Is the subject the actor? Is the subject doing

something. - active voice Is the subject being acted upon? Does a verb

phrase include a form of “be” --is; was; were; are; been

A verdict [object/subject] was reached [verb] by the jury vs. The jury reached a verdict.

Active Voice - why care?Active Voice - why care?

Because I care Preferred style in legal writing (most writing except

science) It is more concise

How evil is the passive voice?How evil is the passive voice?

Sometimes effective, but be ready to justify your use Anytime the actor doesn’t matter or you don’t

want to emphasize the actor or subject (think criminal defense cases)

The marshal left the summons; The summons was left by the marshal.

My client struck his wife with a baseball bat in self-defense. Or The victim was struck with a baseball bat in self-defense.

The child was killed while wrestling with Jones. Or Jones killed the child while wrestling with him.

Keep the subject & verb closeKeep the subject & verb close

Keeps writing concise the wider the gap between the subject and verb

more likely unnecessary words makes writing easier to understand

large gaps between the subject and verb may confuse reader

minimizes passive voice

Failure to Keep the Subject, verb & Failure to Keep the Subject, verb & object closely connectedobject closely connected

Interrupts sentence flow Leads to confusion & verbosity The lawyer, who was feeling sick and had not been to

the office in several days, drafted, without the benefit of the proper statutory material or the pertinent cases, the memo.

Sick and absent from the office for several days, the lawyer drafted the memo, even though he did not have the proper statutory material or the pertinent cases.

Closing the GapsClosing the Gaps

Flip-flop the sentence. Put the subject & verb first The defendant, in addition to having to pay

punitive damages, may be liable for plaintiff’s costs and attorneys fees. Or

The defendant may have to pay plaintiff’s costs and attorney fees in addition to punitive damages.

Closing the GapsClosing the Gaps

Avoid giving long descriptive information before the main subject and verb

Given the absence of accurate and effective fines for disciplinary violations and an incentive on the part of lawyers to maximize overall gain by engaging in the unethical conduct, a court, faced with a choice between applying a narrow disciplinary rule such as the dishonesty rule, will achieve a more efficient result by adopting the narrower approach.

No accurate and effective fines exist for disciplinary violations, plus lawyers have an incentive to maximize overall gain by engaging in the unethical conduct. Thus, a court will achieve a more efficient result by adopting the narrower approach, even when faced with a choice between . . .

A court will achieve a more efficient result by adopting the narrower approach when it is faced with a choice between . . .