LEGAL WRITING IN PLAIN ENGLISH

A Text with Exercises

THE UNIVERSITY OF CHICAGO PRESS

Contents

CHAPTER 1

Framing Your Thoughts

§ 1. Have something to say—and think it through.

What's your biggest challenge as a writer? It's figuring out, from the mass ofpossibilities, exactly what your points are—and then stating them coherently,with adequate reasoning and support.

Although this advice might seem obvious, legal writers constantly ignoreit. The result is a mushy, aimless style. Even with your point well in mind, ifyou take too long to reach it, you might as well have no point at all. Only readerswith a high incentive to understand you will labor to grasp your meaning.

That's where law school comes in. Every law student must read and digestscads of diff use writing. You read through old cases that take forever toconvey fairly straightforward points. You read law-review articles that take 50pages to say what might be said more powerfully in 5. And as you read, yourincentive for gleaning the main message remains high because your future inlaw depends on it. You have no choice but to wade through all that opaqueprose.

Take, for example, a sentence from a judicial opinion. See if you can followthe court's point:

And in the outset we may as well be frank enough to confess, and, indeed,in view of the seriousness of the consequences which upon fuller reflectionwe find would inevitably result to municipalities in the matter of streetimprovements from the conclusion reached and announced in the formeropinion, we are pleased to declare that the arguments upon rehearing haveconvinced us that the decision upon the ultimate question involved hereformerly rendered by this court, even if not faulty in its reasoning fromthe premises announced or wholly erroneous in conclusions as to some ofthe questions incidentally arising and necessarily legitimate subjects of discussionin the decision of the main proposition, is, at any rate, one whichmay, under the peculiar circumstances of this case, the more justly and atthe same time, upon reasons of equal cogency, be superseded by a conclusionwhose effect cannot be to disturb the integrity of the long and well-establishedsystem for the improvement of streets in the incorporated citiesand towns of California not governed by freeholders' charters.

What's the court saying? In a highly embellished style, it's simply saying, "Wemade a mistake last time." That's all.

If you add sentence after sentence in this style—all filled with syntacticcurlicues—you end up with an even more impenetrable morass of words. Theonly readers who will bother to penetrate it are either law students or lawyerswho are paid to do so.

However willing you might be to pierce through another writer's obscurity,you must insist that your own writing never put your readers to thattrouble. On the one hand, then, you'll need a penetrating mind as a reader tocut through overgrown verbal foliage. On the other hand, you'll need a focusedmind as a writer to leave aside everything that doesn't help you swiftlycommunicate your ideas.

That's the start to becoming an effective legal writer.

Exercises

Begin each of the following exercises by looking up the case cited. Then writea case brief for each one—that is, a short case synopsis that follows a standardform: (1) case name and citation (in proper form); (2) brief facts; (3) questionfor decision; (4) holding; and (5) reasoning. Your finished product should fit ona five-by-seven-inch index card (front and back). The exercises are increasinglychallenging for either or both of two reasons: first, the increasing complexityof the legal principles involved; and second, the increasing difficulty of the languageused in the opinions. When you're finished, have a friend assess howeasy it is to understand what you've written. Here's an example of a case brief:

Case: Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974).

Facts: While driving in city traffic, Henderson found that, despite repeatedattempts, she couldn't brake. To avoid injuring anyone, she ran into apole. An investigator later found that part of a rubber gasket from the airfilter had gotten into the carburetor. Henderson sued Ford on varioustheories, including defective design. Her expert witness didn't criticizethe design of the gasket, carburetor, or air filter, but did say that the positioningof the parts might have been better. No one testified that theair-filter housing was unreasonably dangerous from the time of installation.Yet the jury determined that the air-filter housing was defectiveand that this defect had caused Henderson's damage.

Question: The expert witness didn't testify that the design was unreasonablydangerous—only that it could be improved on. Is this testimonysufficient to support a jury finding that a product's design is unreasonablydangerous?

Holding: Mere evidence that a design could be made better—without evidencethat the design itself was unreasonably dangerous—is insufficientto impose liability on a manufacturer.

Reasoning: A plaintiff in a design-defect case must provide some evidencethat the design of the product made it unreasonably dangerous.Specifically, the evidence must show that a prudent manufacturer whowas knowledgeable about the risks would not have placed the particularproduct in the stream of commerce. Mere speculation that a productmight be improved on does not constitute evidence of a design defect. Amanufacturer is not required to design the best product that is scientificallypossible.

Basic

Write a case brief for People v. Nelson, 132 Cal. Rptr. 3d 856 (Ct. App.2011). If you belong to a writing group or class, circulate a copy of yourcase brief to each colleague.

Intermediate

Write a case brief for Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky.2010). If you belong to a writing group or class, circulate a copy of yourcase brief to each colleague.

Advanced

Write a case brief for District of Columbia v. Heller, 554 U.S. 570 (2008). Ifyou belong to a writing group or class, circulate a copy of your case briefto each colleague.

§ 2. For maximal efficiency, plan your writing projects. Trynonlinear outlining.

Writers work in various ways, often experimenting with many methods beforesettling into certain habits. But most writers need a way to set down their yet-unformedideas in some way other than a top-to-bottom order.

Once you've thought of some points to make—even if they're not fullyformed—you've already begun the writing process. But you're not yet readyto begin writing sentences and paragraphs. You're ready to start outlining,which itself can be a multistep process. Here I'll discuss producing an outlinethat probably won't resemble the outlines you've tried for other writing projects.More on this in a moment. First, let's break down the writing processinto its component parts.

It's useful to think of writing as a four-step process:

1. Think of things you want to say—as many as possible as quickly aspossible.

2. Figure out a sensible order for those thoughts; that is, prepare anoutline.

3. With the outline as your guide, swiftly write out a draft.

4. After setting the draft aside for some time (whether minutes ordays), come back to it and edit.

These four steps derive from a system developed by Betty Sue Flowers, a formerUniversity of Texas English professor. She has named each of the steps:(1) Madman, the creative spirit who generates ideas; (2) Architect, the plannerwho ensures that the structure is sound and appealing; (3) Carpenter, thebuilder who makes the corners square and the counters level; and (4) Judge,who checks to see whether anything has gone wrong. Each character representsa separate intellectual function that writers must work through.

The Madman, essentially, is your imagination. This character, thoughsome times brilliant, is almost always sloppy. When you're in the Madmanphase, you're going for copious thoughts—as many as possible. Ideally,though, you won't be writing out sentences and paragraphs. Rather, you'll bejotting down ideas. And if you get into the swing of it, your jottings will comefast and furious.

You'll need to protect the Madman against the Judge, who hates the Madman'ssloppiness. If you don't restrain the Judge in these early stages of thewriting process, the Madman could be at considerable risk. Writers commonlyhave little battles in their heads if the hypercritical Judge is allowed to startcensoring ideas even as the Madman is trying to develop them. The result iswriter's block. The one thing all slow writers seem to have in common is thatthey will not go on to sentence two until sentence one is perfect. By the timethey get to the end of the paragraph, the Judge still isn't satisfied, so they crossit out and start again. Fast writers never bring in the Judge that early in thewriting process; this enables them to use the process to discover what theyhave to say. The perfectionistic, Judge-dominated writers view their initialefforts as producing a final product, which is why it takes them so much longerto get it done. So learn to keep the Judge out of the Madman's way.

The other steps are equally important.

Once you've let the Madman come up with ideas—in no particularorder—the Architect must arrange them. But it's virtually impossible forthe Architect to work well until the Madman has had free rein for a while.Although initially the Architect's work might be nonlinear, you'll ultimatelyneed a linear outline—a plan that shows the steps on the way from the beginning,through the middle, to the end. Typically, in legal writing, you'll arrangeyour points from the most to the least important—and then clinch the argumentor analysis with a strong closer.

The Architect's work product should be in complete sentences—notmere phrases. Why? You should be working with full propositions, not justscraps of ideas. A good outline can be as simple as three propositions arrangedin their most logical and powerful order.

Next is the Carpenter's turn in the lead. This is where you begin writingin earnest. Following the Architect's specifications, the Carpenter buildsthe draft, joining sentence to sentence and paragraph to paragraph. Of course,the Architect's blueprint makes the Carpenter's job much easier. Ideally, theCarpenter writes quickly, treating the outline as a series of points that needelaboration.

For many people, the carpentry is the most unpleasant part of writing.They find it hard to sit down and produce a draft. But this problem stemslargely from skipping the Madman and Architect stages—as if any writercould do three things at once: think of ideas, sequence them, and verbalizethem. That's not the way it works, even for superb writers. In any event, theCarpenter's job becomes relatively easy if the Madman and Architect havedone competent work beforehand.

Again, the Judge must stay out of the Carpenter's way. If you're constantlystopping yourself to edit the Carpenter's work, you're slowing yourselfdown. And you're getting into a different frame of mind—that of editor, asopposed to writer. Still, though, the Carpenter exercises considerable discretionin following the Architect's plans and makes architectural refinementshere and there when producing paragraphs and sections.

When you have a draft, no matter how rough, the Judge can finally takeover. For many writers, this is where the fun begins. You have the makings ofa solid piece of writing, but now you can fix the ragged edges. The Judge doeseverything from smoothing over rough transitions to cutting unnecessary wordsto correcting grammar, spelling, and typos. An alternative name for the Judgeis "Janitor" because a big part of what the Judge does is tidy up little messes.

Each character has an important role to play, and to the extent that youslight any of them, your writing will suffer. If you decide, for example, to"rough out" a draft by simply sitting down and writing it out, you'll be startingthe whole process at the Carpenter phase. You'll be asking the Carpenterto do not just the carpentry but also the Madman's and the Architect's work.That's a tall order. People who write this way tend to produce bad work. Andthey tend to procrastinate.

If you decide that you can begin an outline with a Roman numeral, you'llstill be asking a lot: the Architect will have to dream up ideas and sequencethem simultaneously. And worse: whatever your I–II–III order happens to beat this early stage will probably become fossilized in later drafts. Most writers'minds aren't supple enough to allow part IV to become part I(D) in a laterdraft, even if it logically belongs there.

That's why it's critical to let the Madman spin out ideas in the earlyphases of planning a piece. Ideally, the ideas will come to you so fast and fluidlythat it's hard to get them all down as your mind races.

One way to do this—to get yourself into the Madman frame of mind—isto use a nonlinear outline. Among lawyers, the most popular type of nonlinearoutline is the whirlybird. It starts out looking like this:

[ILLUSTRATION OMITTED]

A shorthand name for the project goes in the center. Then you begin addingideas—the more the better. For every major idea you have, use a branch offthe center circle. For supporting ideas, try branching off from a major branch.Everything you might want to mention goes into the whirlybird—which hasno top and no bottom. You're striving for copious thoughts without havingto worry about where they go, how they fit together, or what they'll look likewhen put in the right order. Here's an example:

[ILLUSTRATION OMITTED]

Once you've finished a whirlybird—whether it takes ten minutes or tenhours—you'll probably find it easy to work the elements into a good linearoutline. You'll know all the materials. It will just be a matter of having theArchitect organize them sensibly. The next step might look like this:

An insurer's duty to settle requires proof of actual coverage, and theMilnes assert that they have proof of coverage. But in a previous, relatedproceeding, they proved up a default judgment by arguing thatthe person they now claim was negligent harmed them intentionally.

A. The district court did not find that there was coverage, so Panzan Insuranceproperly refused a settlement offer.

B. The Milnes cannot contradict the factual and legal position they tookin state court:

(1) The equitable doctrine of judicial estoppel prevents a party fromtaking a position contradictory to the position taken on anotherissue or in a previous but related proceeding.

(2) In state court, the intentional nature of the act that harmed theMilnes was crucial to obtaining the default judgment, and theypresented evidence of intent.

(3) The policy does not cover intentional actions, and the state-courtevidence is fatal to their claim against Panzan, so the Milnes presentedevidence that the act was not intentional.

Once you have this type of linear outline—something that many writers cancreate only if they do a nonlinear outline first—writing your first draft becomesmuch less intimidating. More on this in a moment.

Lawyers who have tried using the whirlybird before drafting a linear outlinecommonly cite several advantages:

• It encourages creativity. It helps you think of things you might otherwisemiss. Brainstorming becomes easier because the creative mindtends to jump around. You eliminate the straitjacketing effect of As,Bs, and Cs, which can cause you to force ideas into premature categories.

• At the same time, the whirlybird can help in free-form categorizing.

• It makes getting started fairly easy. It's stress free. You can avoidwriter's block.

• As some of the same ideas emerge in different contexts, you can seemore clearly the interconnections between your ideas.

• It's a great way to discover your key points—and to distill your thoughts.

• Once you know all the options, you can more confidently select whatyour lead will be.

• The whirlybird is an excellent reminder of ideas that might otherwiseget dropped.
(Continues...)Excerpted from LEGAL WRITING IN PLAIN ENGLISH by BRYAN A. GARNER. Copyright © 2013 Bryan A. Garner. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS.
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