Persuasive Legal Writing
Course Description
In “Persuasive Legal Writing,” Mr. Smith teaches the key writing techniques that judges advocate to make legal writing persuasive. The seminar explains why the opaque academic style—acquired in college and law school—is anathema to busy judges. The seminar teaches that the writing quality most desired by busy judges is clarity, which is created by brevity, simplicity, continuity, and specificity.
The seminar is based on Mr. Smith’s 140-page book, Persuasive Legal Writing, which:
(1) Identifies the obstacles to persuading a judge;
(2) Shows that these obstacles are overcome by writing with brevity, simplicity, continuity, and specificity;
(3) Shows how to manifest these four qualities in headings, paragraphs, sentences, and word choice.
The seminar draws on Mr. Smith’s 40 years of practice as an appellate lawyer—including 19 appearances in the California Supreme Court—and Mr. Smith’s 30 years of teaching “Persuasive Legal Writing.” Mr. Smith has presented this seminar to the State Bar Convention, BASF, LACBA, Skadden, DLA Piper, Wilson Sonsini, and Fenwick & West (partial list). The seminar qualifies for general MCLE credit.
Course Content
A. The Need for Persuasive Writing.
1. Judges need the writer’s help.
2. The power of your brief dwarfs the power of oral argument.
3. Judges are busy.
4. Judges may be unfamiliar with your area of law.
5. Judges are often interrupted.
6. Legal analysis is complex.
7. The academic style is obscure.
8. Though writers grasp their own complex constructions, judges won’t.
B. Clarity's components: Brevity, Simplicity, Continuity, Specificity.
1. The need for clarity.
2. The benefits of clarity.
3. Brevity.
a. Advocates of brevity.
b. Palsgraf exercise for brevity.
c. Exercise: Shorten this advertisement.
d. Delete hollow modifiers.
e. Exercise: Shorten these phrases.
f. Condense clauses to shorter phrases.
4. Simplicity.
a. Advocates of simplicity.
b. Simplicity promotes comprehension and is the trend.
c. Imitate Holmes’s simple style, not Cardozo’s ornate style.
d. Exercises.
5. Continuity.
a. Before a quote, state its point.
b. After a heading, restate its point.
6. Specificity.
a. Avoid vague or ambiguous constructions.
b. To refer back, use specific, concrete terms.
c. If a word has multiple meanings, use just one meaning consistently.
d. Restrictive and nonrestrictive modifiers.
e. Avoid acronyms.
7. The key word is more persuasive.
8. Honesty is vital for credibility.
C. Organizing, Drafting, and Editing.
1. Arrange your workspace and time for “deep work.”
2. Organize your brief to meet the judge’s needs.
3. Curing writer’s block.
4. Edit relentlessly.
a. Writers on editing.
b. Examples of repeated editing.
c. Tips for effective editing
d. Editing others’ writing.
e. Editing exercise: U.S. v. Microsoft Corp.
D. Headings.
1. Assert a complete point, using key terms and details.
2. Brevity: Two lines or less.
3. Use parallel structure.
4. After the heading, use the heading’s key terms.
5. Format: Bold and lower case.
6. For past events use the past tense.
7. Exercises.
E. Paragraphs.
1. The topic sentence states the point; limit the paragraph to that point.
a. Exercises.
2. Continuity: Create a clear train of thought.
a. Exercises.
3. Other paragraph structures.
a. Short topic sentence.
b. Short second sentence.
c. Short sentence at paragraph’s end.
d. One-sentence paragraph.
e. Start with your adversary’s point, then refute it.
f. Start with striking facts.
g. Start with a quote.
h. Start with a question, then answer it.
5. Include photos, charts, diagrams, lists, tables, and graphs.
F. Sentences.
1. Start with a link to prior text (when needed).
2. Put the subject at or near the start.
a. Keep introductory clauses short.
b. Avoid introductory clauses modifying the subject.
c. Avoid throat clearing.
3. Use a strong subject and verb.
4. Keep subject, verb, and object close together.
5. End with the point of emphasis.
6. Brevity: Two lines or less.
a. Tips for shorter sentences.
b. Omit “that” and “who is/which is.”
c. Condense “of” constructions.
d. Refer to cases by one name only.
e. Exercises.
7. Punctuate for brevity and emphasis.
a. Dash.
b. Colon.
c. Bullets.
d. Italics.
e. Semicolon.
f. Parentheses.
g. Minimize commas.
h. Minimize hyphens.
I. Avoid ellipses: Paraphrase in brackets.
8. Write in the order of time, cause and effect, and climax.
9. Put the “because” clause (the cause) before the effect.
10. Keep block quotes short (four lines at most).
11. Footnotes: Minimize substantive footnotes.
12. Citing cases.
a. Note the precedent’s similarity (or dissimilarity) to your case.
b. Hierarchy of authority.
c. Put citations in the text, but minimize clutter.
d. Citations should not burden the reader.
13. Parallel structure for parallel ideas.
a. Parallelism’s five forms.
b. Tips for parallel structure.
c. Parallelism reinforces a point the reader might resist.
d. Parallelism makes complex information easier to grasp.
e. Parallelism sharpens comparisons.
f. Examples in legal writing.
14. Exercises.
G. Words.
1. Importance of word choice.
2. Use short, colorful words.
3. Replace nominalizations with verbs.
4. Use the same word for the same concept.
5. Describe court filings by the action, not the title.
6. Use the active voice.
7. Refer to parties by name.
8. Use positive constructions.
9. Put modifiers immediately next to the person or thing modified.
10. Use a respectful tone; avoid emotion.
11. Advocate sound policy, judicial administration, and fairness.
12. Use gender-neutral language.
13. Informal constructions.
a. Splitting infinitives.
b. Put prepositions at the end to avoid awkwardness.
c. Contractions? Probably not.
d. Start sentences with “And,” “But,” or “Because.”
e. “Who” or “whom”?
f. “Will,” not “shall.”
g. “Whose,” not “of which.”
h. Avoid the past perfect tense.
14 . Avoid word gaffes.
H. Structure of briefs and motions.
1. Introduction.
a. Overview: Get the judge interested.
b. Issues Presented.
c. Summary of argument.
d. Cite to the record.
e. Create a theme.
2. Statement of Facts.
a. Use frequent headings and subheadings.
b. Be complete.
c. Structure the facts to match the legal arguments.
d. Make assertions within the standard of review.
3. Procedural History.
4. Argument.
a. State the standard of review.
b. Make your syllogism clear.
c. An argument’s five parts.
(1) Roadmap: Orient the reader to the issue and its resolution.
(2) Rules: Discuss neutrally.
(3) Apply rules to facts.
(4) Anticipatory refutation.
d. Present arguments from strongest to weakest.
5. Avoid repetition.
6. The reply brief.
7. Appendix to the brief.
8. Judicial advice for shorter briefs.