DTCI: 'It ain't whatcha write, it's the way atcha write it'

February 10, 2016
By Samantha Huettner
Huettner Huettner

Strong legal advocacy demands writing skills. Good writing wins cases; bad writing buries them. Fortunately, the skill is easily developed with practice. Those who want to develop in this area may consider the following:

Read. To improve your own writing, you must learn to recognize good writing in the first place. Make time to read. Indiana’s appellate courts issue new opinions around 11 a.m. each weekday. (http://www.in.gov/judiciary/2729.htm) Skim them. Look up opinions by former Chief Justice Randall Shepherd and Court of Appeals Judge John Baker, who mastered plain language writing. Also read literature, poetry, newspapers, even instruction manuals. Study the art of clear communication.

Write simply. Cicero claimed law clerks wrote with “a legal hand that Satan himself [would] not understand.” He was probably referencing phrases such as “comes now,” “the instant case,” and “prayer for relief” that clutter legal writing. Clear communication is grounded in everyday language that presents your case in simple terms. Use short sentences where possible and cut extraneous words. A lay person should be able to pick up your brief and understand what happened and what you want the judge to do about it within the first page or so.

Write with dignity. Implied in our professional conduct rules is the duty to practice with some class. Ind. Professional Conduct Rule, Preamble(1). This means knowing the line between zealous advocacy and hyperbole. Hyperbole is a cheap substitute for legal reasoning. Your opponent’s brief is probably not meritless claptrap, although it might be. Refrain from saying so. Use your page space to make your own arguments. Point out the flaws in your opponent’s reasoning, of course, but do so in a tempered way that builds your credibility with the judge.

Buy books on legal writing. Invest in books on legal writing. I like U.S. Supreme Court Justice Antonin Scalia and Bryan Garner’s “Making Your Case” and Steven Stark’s “Writing to Win.” Also consider a copy of Strunk & White’s “The Elements of Style.” Play around with the stylistic points and guidance you learn as you write your briefs.

Legal writing skills are easily attainable and well worth the effort. Develop yours. As you do, keep in mind Hemingway’s advice: “It’s none of their business that you have to learn to write. Let them think you were born that way.”•

This is the first in an occasional series of practice tips for new attorneys by Ms. Huettner, who is an associate in the Bloomington firm of Clendening Johnson & Bohrer. The opinions expressed in this article are those of the author.


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