Take Legal Writing to the Next Level -

For Paralegals

Minneapolis

To access additional resource materials:

Minnesota CLE’s Copyright Policy

MINNESOTA CLE is Self-Supporting

A not for profit 501(c)3 corporation, Minnesota CLE is entirely self-supporting. It receives no subsidy from State Bar dues or from any other source. The only source of support is revenue from enrollment fees that registrants pay to attend Minnesota CLE programs and from amounts paid for Minnesota CLE books, supplements and digital products.

© Copyright 2018

MINNESOTA CONTINUING LEGAL EDUCATION, INC.

ALL RIGHTS RESERVED

Minnesota Continuing Legal Education's publications and programs are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distributed and oral programs presented with the understanding that Minnesota CLE does not render any legal, accounting or other professional advice. Attorneys using Minnesota CLE publications or orally conveyed information in dealing with a specific client's or other legal mat-ter should also research original and fully quoted sources of authority.

Minnesota Continuing Legal Education wants practitioners to make the best use of these written materials but must also protect its copyright. If you wish to copy and use our CLE materials, you must first obtain permission from Minnesota CLE. Call us at 800-759-8840 or 651-227-8266 for more information. If you have any questions about our policy or want permission to make copies, do not hesitate to contact Minnesota CLE.

All authorized copies must reflect Minnesota CLE’s notice of copyright.

Take Legal Writing to the Next Level— Strategies and Tips to Elevate Your Writing and Enhance Your Credibility

TABLE OF CONTENTS

Why Good Writing Matters ........................................................................................................ 1

Will Attorneys Accept Feedback on Writing? ......................................................................... 2

15 Writing Mistakes that Undermine Your Credibility ... and How to Eliminate Them .. 3

How to Cut the Legalese and Simplify Your Writing ............................................................ 7

Six Tips for Elevating Your Writing Style .............................................................................. 10

Seven Things You Can Do to Improve Your Next Writing Project ................................... 14

Great Writing Resources for Lawyers ..................................................................................... 18

1

Take Legal Writing to the Next Level— Strategies and Tips to Elevate Your Writing and Enhance Your Credibility Paralegals play a critical role in creating efficient, professional legal writing. Good writing takes time and attention, which can be in short supply. A paralegal’s assistance doubles the time and attention that can be given to a document. If you develop close client relationships, you may be the best person to put the client’s story into words. If you prepare transactional documents, you’re the front line in the battle to ensure that the written terms of the deal make sense. And if you’re the one who gets documents out the door, getting involved in the editing process earlier may make the finished product even more polished.

Why Good Writing Matters

In many law schools, students spend a semester writing and rewriting a single-issue brief. The students get months to write and revise, and lots of feedback from peers and teachers along the way.

In real life? Not so much.

For one thing, we move faster: complaints or motions may need to be written in a matter of days. We work together. When different people write different pieces, there’s the pull of social obligation—we’d rather get along than insist others do it our way. And we have to be mindful of cost: instead of scratch-drafting everything from the first page, we’ll do a bit of cutting and pasting to save time.

The result? Writing that’s adequate, but not as good as it could be. We know it could be better, and we resolve to do better next time... except that, when next time comes, we’re often just as busy. So part of being a good writer is developing systems to be fast, accurate, and reasonably effective, while gradually building skills.

Practicing law is about putting words on paper. Whether it’s a legally operative document like a will or contract, or a litigation document such as a complaint, motion, or discovery request, writing is essential to getting a good result. My focus will be a blend of short-term and long-term improvements: the short-term will help you with your next project, while the long-term may take more time but will yield even better results.

Most of what I’ll talk about today are concepts that are (or should be) taught to law students; it’s my hope that it will be helpful to you as well. I welcome your questions,

2

thoughts, and feedback on the course—please feel free to email me, karin@karincianolaw.com.

Will Attorneys Accept Feedback on Writing?

An interesting thing about attorneys: we think about writing the way most people think about driving or raising children. That is to say that the poor choices of others loom large in our minds while our own choices are rarely questioned. Whenever someone finds a mistake in our writing, we are genuinely surprised (and usually embarrassed). So if you want to offer feedback to an attorney with whom you’re working, you may wonder if they will hear what you have to say.

Yes! All people accept feedback better if the giver of feedback is attentive to time, place, person, and manner. Offer thoughts privately, when the recipient is not distracted by other things. Offer them as courteously and non-judgmentally as possible. Welcome their feedback on your feedback, so that it builds trust and opens a dialogue.

Because many lawyers want to write well, they more are receptive to suggestions than one might expect. I write a monthly column about legal writing that is aimed at attorneys, and have been surprised at how enthusiastically people embrace tips and assistance on writing. For more tips on giving (and receiving) feedback I commend to your attention the book Thanks for the Feedback: The Art and Science of Receiving Feedback Well, by Douglas Stone and Sheila Heen.

3

15 Writing Mistakes that Undermine Your Credibility ... and How to Eliminate Them

Edit.

Seriously, that’s the one-word answer (although I would also have accepted proofread).

When we think of good writing, we think of writing that’s free of mistakes, that clearly communicates what the writer intends, and that flows easily from point to point.

Almost nobody writes that way, at least not in a first draft. Luckily for us, we don’t have to turn in a first draft as long as we leave time to edit and proofread. I tend to use the word edit for big changes, like resequencing paragraphs and sentences, and proofread to mean fixing errors of grammar, punctuation, and spelling. It helps to do them separately—sometimes I can lose sight of unanswered arguments and abrupt transitions because I’m too busy hunting for inconsistencies in the number of spaces after a period.

If you take one thing away today, make it this: insist on time for editing.

What can editing do for you? It can catch the following mistakes, among others. Behold my candidates for the Fulsome Fifteen:

1. Any mistake on the first page.

To err is human. To err on the first page of a document is like sitting for a portrait with a gob of spinach between your teeth. It forces the observer to ask two unflattering questions: does she not know? or does she not care? The first page features the case caption, the firm’s letterhead, names and addresses. Like a resume or a profile photo, it’s where great first impressions are made . . . or not.

Think about it. The misbegotten pleadings that go viral usually have some hilarious blooper right up front—how else would we know to keep reading?

2. Misspelling names.

Party names, place names, case names, titles. The name of the person to whom I’m addressing a letter. The name of the court in which I’m filing a document. These are the brown M&Ms of the legal writing world: if I don’t know enough to catch misspellings here, what else might I not know?

Spell-check programs are not your friends. They will betray you in a heartbeat, so don’t count on them. You’ve been warned.

4

3. The ransom-note effect.

Writing is a visual medium. Even minor changes in font, type size, margins, or other formatting details can set readers on edge (there are people who get very excited, for example, about the use of “smart quotes” over the plain old typewriter-style dumb quotes some of us grew up with back in the day).

The more we cut and paste, the greater the chance of error. Think of inconsistent fonts and formatting as noise that obscures the signal of your argument, and always give the document a last look to be sure it’s visually consistent.

4. Excessive emphasis.

The ransom-note effect is usually accidental, but occasionally can be produced by the deliberate use of too much emphasis.

When you’re writing a legal document go for understated elegance; the emphasis of choice is italics. Save the bold and underlining for headings, and use a single typeface and font size. The CapsLock key is optional, used strictly for titles (COMPLAINT, AGREEMENT) and major section headings (TABLE OF CONTENTS, INTRODUCTION, FACTS, ARGUMENT).

5. Ghosts and gate-crashers.

Missing words and extra words are byproducts of word-processing. Both are best detected by editing and proofreading. Left uncorrected, they suggest that the author may not be paying attention.

Ghost: The plaintiff was laid because she reported sexual harassment.

Gate-crasher: The plaintiff was laid off fired because she reported sexual harassment.

6. Le mot gauche.

At best, the wrong word provides your adversary, the court, and the internet with minutes of harmless entertainment. I leave the worst-case scenario to your imagination. Most of us have heard that there’s a difference between affect and effect, yet folks confuse them. Guess what? It gets worse. Much, much worse.

7. Sentence fragments.

Usually accidental, sentence. Fragments can and should be edited for clarity.

8. Apostrophe abuse.

Know where apostrophes go, and where they don’t go. (Hint: they are never used to make a singular noun plural.)

5

9. “Scare quotes.”

“Did anyone say that?” If not, quotation marks may not be the best way to “communicate” what you “mean.” As it does in a transcript of testimony, irony plays poorly in formal legal writing—we get taken at our “word,” quotes or not.

10. Untethered citations.

Lawyers live in a world of numbered pages. There is almost never a reason to avoid including a pinpoint citation to the precise page containing the evidence or legal rule upon which our blistering legal analysis rests.

11. Mid-sentence shifts in subject, object, verb tense, person, number, and voice.

The rules of grammar require certain types of word to accompany and agree with each other. So it is with subjects and verbs; so too with pronouns and their antecedents. While the language is evolving (note the increasing acceptance of the singular “they”), rules about fundamental sentence structure break badly. Proceed with caution.

Wrong: The court issued their opinion.

Right: The court issued its opinion.

Wrong: While most people willingly serve as jurors, there are others who refuse.

Right: While most people willingly serve as jurors, others refuse.

12. Faulty parallelism.

Grammar is all about meeting expectations and avoiding surprises. The matching rule described above extends to lists and multi-part sentences; once a pattern is established, it must be followed to create parallel structure, lest reader confusion ensue. Here’s an example from Ross Guberman’s Point Made:

Wrong: The software creates the month display, dates are filled in, and then tracking of the correct order of dates and times occurs.

Right: The software creates the month display, fills it in with dates, and then tracks the correct order of dates and times.

13. Skunked words.

English being English, meanings mutate, and some words—like enormity and fulsome—come to mean weirdly divergent things.1 Or, like data, they preserve a mystery as to

1 Enormity = a grave crime or moral wrong, or just enormous. Fulsome = nauseating, sickening, rank, and also very full or extensive.

6

whether they’re singular or plural. Examples of skunked words appear in Garner’s Modern American Usage; I recommend consulting such a list regularly.

14. Misplaced and dangling modifiers.

This problem is related to #11, mid-sentence shifts; it’s what happens when one part of the sentence modifies a word that’s either in the wrong place, or not mentioned in the sentence at all. The reader does a double-take to figure out what just happened.

Dangling: Shouting “Police!” the apartment door was kicked in.

Right: Shouting “Police!” the officers kicked in the apartment door.

Misplaced: When located, file the will in court.

Right: When the will is located, it should be filed in court.

15. Failure to obey house rules.

You may find yourself writing for a specific audience that has expressed a preference for a particular line spacing, or typeface, or font, or method of abbreviating words, or number of spaces that follow a period, or appropriate location of citations (text or footnotes). These preferences are sometimes called “house style.” To learn and honor such preferences earns us credibility and shows respect for our audience.

Are there only fifteen?

Heck no. The internet contains many lists of lawyers’ and judges’ writing peeves. What matters is to understand that many lawyers and judges are sticklers for grammar—including points of grammar that may be obscure, or even (dare I say) outdated. So if you’re interested in becoming a better writer, I encourage you to check out some of the resources mentioned at the end, and invest some time in refreshing your grammar skills.

7

How to Cut the Legalese and Simplify Your Writing

Respecting house style or traditional preferences doesn’t mean adopting legalese. So how to keep it simple? Here, I’ll go for a two-word answer: Read aloud.

I’m using legalese to mean three things:

Jargon Buried verbs Surplus words

Let’s take them in order.

Jargon

Jargon, as defined in Garner’s Modern American Usage, “refers to the special, usually technical idiom of any social, occupational, or professional group. It arises from the need to streamline communication, to save time and space—and occasionally to conceal meaning from the uninitiated.”

Sound familiar? As a law student, I remember the thrill of learning terms of art (such as terms of art), believing that victory would go to the lawyer with the largest vocabulary.

Well, sort of. Jargon both connects and excludes. Lawyers learn new words (or narrower uses for existing words) to speak with colleagues and clients, and lose track of how to talk like (or to) regular people.

How to spot jargon? My favorite way is to ask a smart non-lawyer to read a document and tell me what’s annoying or doesn’t make sense. Or try reading aloud; my ear sometimes picks up awkward phrases more quickly than my eyes.

Or just grab the low-hanging fruit:

Acronyms and initialisms. We all know NASA (acronym, read as a word) and the NAACP (initialism, sounded out letter-by-letter). So too with ATM, DVD, GAAP, HIV, UFO, and the like—these are the red-carpet celebrities of the abbreviation world. They get a pass. For everything on the B-list and below, or any abbreviation that could mean more than one thing, find a plain-English way to shorten it that doesn’t require the invention of a new word (for example, the Federal Arbitration Act becomes “Act.”)

Latin words and phrases. Yes, it’s the original legal secret code—so except for words that have made the A-list (de facto), remember that Latin is for lovers of obscurity. If it’s a cause of action (res ipsa loquitur) or a canon of construction (contra preferentem), you’re probably safe as long as you’re speaking to lawyers (and as long as you nail the

8

spelling). But is it really so hard to say that the thing speaks for itself, or a contract must be construed against the drafter?

Buried verbs

What happens when a perfectly good verb picks up a few extra letters and becomes a flabby, unfocused noun? Garner calls these “buried verbs”; Richard Wydick, author of Plain English for Lawyers, calls them “nominalizations.” A few examples from Garner’s Modern American Usage:

Noun Verb Enforcement Enforce Knowledge Know Opposition Oppose Regulation Regulate Utilization Use Violation Violate

Swapping out the nouns on the left for the verbs on the right will help your sentences shake themselves off, stagger to their feet, and get moving. Again, reading aloud is helpful; if you find your speech slowing and your mind wandering, it may be that buried verbs are slowing you down. Dig them up.

Surplus words

Lawyers love words. Lots of words. We think ambiguity can be resolved or uncertainty eliminated by adding words to a sentence. We are often wrong.

Contract drafters know this; it’s why they invented the redline. Consider the excerpt below, which I’ve borrowed from Howard Darmstadter’s Hereof, Thereof, and Everywherof:

Notwithstanding section 8.05(b) above, the Borrower need not make a payment to a Bank under subsection 8.05(b) as a result of a deduction or withholding of incremental tax, interest or penalty that is required of the Bank by reason of the Bank’s failure or inability to furnish a tax form pursuant to section 8.05(a) or an extension or renewal of the tax form, unless . . .

9

Reading aloud is helpful here too. If you find yourself running out of breath before you finish a sentence, start counting words. The text box you’ve just seen contains 64 words, and the sentence isn’t even finished. Can we trim it down?

Of course we can.

That’s 49 words. Here’s the clean read:

And here’s how it might look after a litigator gets through with it:

That’s 30 words, less half the original. (Who knows how short it might become if I knew anything useful about lending transactions or taxes?)

Online sources suggest that when we’re reading aloud, we read about 125 words per minute; when we read silently, it’s closer to 200 words per minute. Aloud, we say less, comprehend more, and intuitively sense awkward sentence structure. It’s a great way to assess how much extra weight our sentences are carrying, and to slim them down.

Notwithstanding section 8.05(b) above, the Borrower need not make a payment to pay a Bank under subsection 8.05(b) as a result of for a deduction or withholding of incremental tax, interest or penalty that is required of the Bank by reason of caused by the Bank’s failure or inability to furnish a tax form pursuant to section 8.05(a) or an extension or renewal of the tax form, unless . . .

Notwithstanding section 8.05(b) above, the Borrower need not pay a Bank under subsection 8.05(b) for a deduction or withholding of incremental tax, interest or penalty caused by the Bank’s failure to furnish a tax form pursuant to section 8.05(a) or an extension or renewal of the tax form, unless...

If a Bank owes extra tax because it failed to timely provide a tax form to the Borrower, the Borrower generally need not compensate the Bank for the extra tax.

10

Six Tips for Elevating Your Writing Style

Here’s where I offer a few pointers for the long game—investments of time that may not pay off next week, but will gradually improve your work. Each of these tips may be amplified by deliberate practice (that is, conscious repetition with a specific goal in mind and an assessment of whether that goal was met).

1. Develop your ear and build your vocabulary.

Before we wrote, we spoke. Perhaps as a result, good writing is pleasing to the ear. To help develop your sense of what sounds right, read widely and focus on professionally edited work for general audiences. I happen to be a fan of encyclopedias for this purpose. Think about it: they contain snippets of biography, geography, history, art, and science, all written for audiences who are presumed to be encountering the material for the first time. Because the authors assume we will not be familiar with the subject matter, they strive to speak simply and clearly—and frequently succeed.

Besides improving your ear, reading will introduce you to new words so that you will recognize them when you encounter them again, and (hopefully) spell and use them correctly. Oddly, we seem to think there’s a time limit on learning new words. We become embarrassed to admit we don’t know, and wonder if it’s rude to ask what the speaker meant. We either retreat to our desks or devices and furtively look things up, or we just forget about them altogether.

If you’re interested in developing a robust community of words to enrich your writing, you can’t play it cool. When you hear or see a new word, be curious. Listen carefully to the context. Ask about it. Try using it in a spoken sentence and a written sentence. Later on, look it up. The same goes for unusual verb tenses, colloquial turns of phrase, or other flourishes that catch your attention. Don’t assume you know, and don’t just let it go—learn it.

2. Learn a few grammatical terms.

Because we can’t diagnose a problem until we understand how to talk about it, it helps to understand a few grammatical terms of art. Equipped with the tools to talk about grammar, you can plug into grammarians’ lingo and benefit from their wisdom. If you’ve ever learned a language other than English, you may already know more than you think about the vocabulary of grammar.

11

Here are my picks for Basics, Next Steps, and Deep Cuts:

Parts of speech Basics Next Steps Deep Cuts Nouns Common nouns Count nouns, mass

(or noncount) nouns and collective nouns

Infinitives and gerunds

Pronouns Pronoun and antecedent relationship

Demonstrative pronouns

Relative pronouns

Verbs Tense (e.g. past, present, future)

Voice (active and passive)

Aspect and mood

Adjectives What they modify, and why

Cumulative or phrasal adjectives

Customary sequence of adjectives

Adverbs What they modify, and why

Conjunctive adverbs

Customary sequence of adverbs

Articles What they modify, and why

Definite and indefinite

When an article isn’t needed

Conjunctions Coordinating conjunctions

Subordinating conjunctions

Correlative conjunctions

Prepositions Referring to time Referring to space Referring to causation

Punctuation Apostrophe Comma Hyphen and Em Dash

Sentence components

Subject and predicate

Phrase and Clause Appositive

3. Diagram sentences.

Diagramming sentences is a lost art, but it’s helpful for the visual thinkers among us. Like a circuit or a schematic, a sentence diagram lets us visualize the components of a sentence (subjects, predicates, phrases, clauses) and understand how they fit together. You can compare two sentences and see which one has a structure that’s simpler and easier to follow. I’m not good enough with graphics to do this in Word, so you’re just going to have to watch my slides.

In general, simple sentences are better. Start with a subject, followed by a verb, followed by an object if there is one (SVO). Make the subject of the sentence a person, a group of people, or a thing—that will allow you to use the active voice, which is livelier and holds a reader’s interest.

For example:

12

The police [Subject] kicked in [Verb] the door [Object]…

The Company [Subject] shall redeem [Verb] this debenture [Object] in 24 equal installments…

The more abstract the subject of the sentence, the more likely a reader is to get lost in the weeds.

4. Develop your punctuation arsenal.

Fluency in punctuation distinguishes a novice writer from an experienced (or well-edited) writer; it is essential to have a working knowledge of colons, semicolons, commas, periods, dashes, hyphens, and the occasional question mark. Exclamation points not so much.

Here I will single out the most common and egregious example of punctuation abuse, the comma splice. Comma splices occur when two independent clauses (mini-sentences, each with its own subject and verb) are joined by a comma:

Wrong: She was once a litigator, now she’s doing major real-estate deals.

If you can’t use a comma to link these up, how to do it? Three good choices:

Period: She was once a litigator. Now she’s doing major real-estate deals.

Semicolon: She was once a litigator; now she’s doing major real-estate deals.

Conjunction: She was once a litigator, but now she’s doing major real-estate deals.

(Bonus track: when a conjunction is used to link independent clauses as you see in the final example, it’s called a coordinating conjunction. A conjunction may also be used to link an independent clause to a dependent clause, in which case it’s called a subordinating conjunction—about which more below.)

5. Learn about storytelling and rhetoric.

As Jonathan Shapiro observes in Lawyers, Liars, and the Art of Storytelling, law schools don’t teach rhetoric and storytelling systematically. Yet rhetoric and storytelling are related, time-tested systems for communicating information in a way that will prompt an audience to remember it and act upon it. Sound good? Fact sections, legal arguments, and trial theories can all be structured according to narrative principles to enhance their persuasive power. So consider learning about these structures and how they work.

6. Cultivate sources of honest feedback.

13

Feedback is a gift, and one of the best things you can do is cultivate a network of people (friends, co-workers, mentors, supervisors) who will look over your stuff and tell you what’s awful. Grant them the freedom to do a quick review so they don’t feel they have to be comprehensive or to teach you your job (unless they want to). You want their impressions: what stands out, what they remember (good and bad), what they trust.

If you’re too shy to ask others for help right now, start by learning how to give good feedback to yourself. A day or two after I’m finished with a project, I make notes for myself with questions, changes, ideas. Then I calendar a date to go through again and answer the questions, consider the changes, and evaluate the ideas I came up with in the moment. I’m also thinking about calendaring an anniversary review: one year after completion, I read through the material a last time.

Deliberate practice demands honest feedback. You owe it to yourself to get some.

14

Seven Things You Can Do to Improve Your Next Writing Project

Here are a handful of tips that I hope will be immediately useful.

1. Edit and proofread.

You already know why, so get started. Find a reading buddy; ask supervisor or a client for feedback. Or do it yourself, after a day or two to rest.

2. Offer old information before new.

As Stephen Armstrong and Timothy Terrell point out in Thinking Like A Writer, readers who understand why information matters and how it will be used are more likely to retain it. So, whether you’re organizing an entire piece, a section, a series of paragraphs, or sentences within a paragraph, remind the reader what is known before moving to what is new.

Have you ever been invited to a party by a gracious host? When you arrive, your host introduces you to her other guests by name (“this is Karin”), mentions how she knows them (“she lives down the block,”) offers a thumbnail sketch (“she’s a lawyer”), identifies common points of reference (“you both work downtown”), and so on. Thus furnished with context, you begin to chat. Kind writers introduce readers to information in the same way.

3. Organize your thoughts to tell a story and avoid repetition.

At some point, before or after you start drafting, think about structuring your presentation. What do you want the reader to do; what must they know in order to do it; and in what order should they learn things so that the desired conclusion flows naturally from what has gone before.

There are many ways to organize legal argument and analysis. The IRAC formula is a classic, because it’s simple, predictable and effective. Narrative structure moves a discussion along and pulls toward an outcome. Anticipating a reader’s logical questions as of a particular point in a discussion can present information in the order a reader will be ready to receive it. The point is, don’t leave it to chance. If you can’t explain why topics are included and left out, and why they’re addressed in a particular order, there may be more organizing to do.

4. Add topic sentences to summarize.

15

Sometimes we forget our audience doesn’t know things as well as we do. An example, borrowed from an actual federal case (and lightly edited):

What’s missing? A topic sentence. The first sentence of the paragraph states a position on the law without providing context; the remainder of the paragraph relates evidence and suggests a conclusion. The author has obviously been thinking deeply about the case, but a reader encountering this paragraph for the first time might have to read it twice.

A topic sentence can help orient the reader. Imagine starting the paragraph thus:

Plaintiff claims Defendant violated the Anti-Cybersquatting Consumer Protection Act simply by registering a similar domain name and linking it to Defendant’s website for less than two weeks.

Or:

Defendant registered and briefly linked to a domain name similar to Plaintiff’s, and Plaintiff promptly sued.

Or:

Defendant stands accused of cybersquatting on Plaintiff’s domain name.

Or:

This case involves accusations of cybersquatting.

You get the idea. Cold water feels less startling when you can put a toe in first.

“Bad faith intent to profit” required under the Anti-Cybersquatting Consumer Protection Act means more than registering a domain name similar to Acme’s domain name. There is no evidence that defendant acquired any sales as a direct result of registering, and for 10 short days in 2XXX, inadvertently linking the domain name to defendant’s website, or that defendant in any way tarnished or disparaged plaintiff’s business. On receipt of this lawsuit—the first and only notice received of the alleged dispute, defendant immediately abandoned the domain name. Defendant neither demanded nor received compensation for doing so. Without evidence that there was a bad faith intent to profit, plaintiff’s claim fails as a matter of law.

16

5. Use independent clauses and dependent clauses deliberately.

An independent clause contains a subject, verb, and (usually) object, and functions as a standalone sentence (recall the comma-splice example above). A dependent (or subordinate) clause is a sentence fragment that can’t function as a complete sentence. The two are usually linked by a subordinating conjunction (although, even if, until, etc.) or a relative pronoun (who, which, that, etc.).

Dependent clauses tell us that the information they contain matters less than the information in an accompanying independent clause. Compare:

Even if plaintiffs establish a prima facie case, they have come forward with no evidence that the defendant’s reasons for firing them were a pretext for discrimination.

Even if plaintiffs come forward with evidence that the defendant’s reasons for firing them were a pretext for discrimination, they have not established a prima facie case.

The independent clause is italicized; its position in the sentence tells the reader it’s the more important point. They key is to make sure that the sentence matches your intent. The independent clause contains information you want to emphasize; the dependent clause contains information you need to acknowledge, but want to de-emphasize.

6. Write a first draft without citations, then add them in.

Since the 1990s Bryan Garner has suggested that citations belong in footnotes, not text. The primary reason is aesthetic; some readers view citations as mere clutter between sentences. I assume those readers are not lawyers, but still, Garner has a point. Even though citations are essential support for our argument, too many of us do the same thing we did in law school, stacking them up like bricks without mortar, and expecting the reader to build a structure that will be helpful to us.

Citations are another lawyer code used to communicate key information about a case. They tell you where something is, but not why it matters. Gone are the days (if they ever existed) when a lawyer could just call out chapter and verse and opposing counsel would respond in kind (“477 U.S. 317, 327!” “Oh yeah? 477 U.S. 242, 249!”).

If you’re working on a first draft, after you’ve researched the law, looked at the facts, and framed a general sequence of topics to discuss, go ahead and write your material using placeholder words for citations. You’ll probably know which case makes the point you’re looking for, so put in the name, then move on. Only after you’ve reviewed your writing for organization and flow will you fill in the full cites—and at that point, they should hold your sentences up, not weigh them down.

While we’re in the neighborhood, a word about citations.

17

Even as bound books are replaced with online sources, we continue to rely on citation forms that point to volume, reporter, and number.

I will offer some contrarian wisdom on citations. From the court’s perspective, citations exist to help the court find the law; clarity and precision are prized above consistency and form. The most important parts of the citation are the page cites, particularly the page upon which the text being cited resides.

If a court has its own house rules about what to cite and how, follow them. If not, look to the authorities—the Bluebook and the ALWD Citation Manual. Garner’s Redbook is a comprehensive guide that is designed for lawyers rather than law students and professors writing articles. For the truly arcane questions, check out the recently liberated style manuals from the Solicitor General’s office and the U.S. Supreme Court.

Great Writing Resources for Lawyers

When it comes to writing, I’m an enthusiast, not an expert. But I consult with experts, and so can you. Here’s a nonexhaustive list:

Kenneth Adams, A Manual of Style for Contract Drafting (ABA)

Stephen V. Armstrong and Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing (PLI 3d ed. 2009)

Bill Bryson, Bryson’s Dictionary of Troublesome Words: A Writer’s Guide to Getting It Right (Broadway Books 2002)

Howard Darmstadter, Hereof, Thereof and Everywhereof: A Contrarian Guide to Legal Drafting (ABA 2002)

Lenné Espenschied, The Grammar and Writing Handbook for Lawyers (ABA 2011)

Mignon Fogarty, The Grammar Devotional (Holt 2009)

H.W. Fowler, Modern English Usage (Oxford 2nd ed. 1959)

Bryan A. Garner – Black’s Law Dictionary, Garner’s Modern American Usage; The Redbook: A Manual of Legal Style; The Winning Brief; among many others

Karen Elizabeth Gordon, The Well-Tempered Sentence: A Punctuation Handbook for the Innocent, the Eager, and the Doomed (Ticknor & Fields 1983).

Rachel Grenon, Grammar: The Structure of Language (Wooden Books 2012).

Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates (Oxford 2011)

Ursula LeGuin, Steering the Craft: A 21st-Century Guide to Sailing the Sea of Story (Mariner Books 2015)

18

Casey Miller & Kate Swift, The Handbook of Nonsexist Writing (iUniverse 2000)

Elizabeth O’Brien, Get Smart: Grammar Through Sentence Diagramming (2013)

Jonathan Shapiro, Lawyers, Liars, and the Art of Storytelling: Using Stories to Advocate, Influence, and Persuade (ABA 2016)

The University of Chicago Press, The Chicago Manual of Style (16th ed.)

Stephen Wilbers, Mastering the Craft of Writing: How to Write With Clarity, Emphasis, & Style (Writers Digest 2014)

Richard Wydick, Plain English for Lawyers (5th ed. 2005)

Ben Yagoda, How to Not Write Bad: The Most Common Writing Problems and the Best Ways to Avoid Them (Penguin, 2013)