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MAY 19, 2009  |  THE NEW LAWYER
Writing for Fussy Readers
By Jean Rosenbluth

When I consider my law students' writing in my role as the director of their legal writing program, I feel sympathy and want to help. Their writing needs work, and it's not their fault.

They've dashed through high school and college, being judged almost exclusively on the content of their writing; the mechanics of it have largely been ignored. But when I put on the hat of a supervising attorney and pick up their papers to review, I start to simmer. Typos. Misspellings. Sentences that run on and on and on. It's all I can do to muster the time and patience to wade through the stuff.

From talking to my counterparts at other schools, I know this is a common complaint, even at such top law schools as my own, USC Gould School of Law.

I try to prepare my students for just how little tolerance the best legal employers have for poor writing. I ask them to treat me as if I'm their supervisor at their first post-graduation job, and in that role, I promise to give them my unvarnished reactions to their writing. As I imagine grabbing them by the shoulders and shaking them, here are some of the things I hear myself saying:

Don't waste my time.

No offense, but I would rather be doing pretty much anything than reading your brief or memo. "Flight of the Conchords" and "24" are waiting for me on TiVo, and I still haven't gotten to the latest Michael Connelly novel. Every time you make me waste a few seconds reading "due to the fact that" or "a court may find," you've stolen a piece of my life that I will never get back (never mind that you've risked making a bad impression on behalf of the client). Cut, cut, cut! Even if you think you can't sacrifice an entire argument or point, I guarantee that you can find a way to say it in fewer words.

Take pride in your writing.

If you don't, I have news for you: I won't either. For this reason, there is no such thing as a draft. Everything you give me should be your best work, even if I've told you it needn't be.

Take pride in your legal writing, but don't invest yourself in it.

Red Auerbach, the famous basketball coach, once said of his relationship with his players, "It's not what you say, it's what they hear." Legal writing is not about you, the writer. It's all about the reader. You may have written a brilliant memo, but if for whatever reason I am confused by or dissatisfied with it, you have failed. And if I tell you your writing needs to be changed, I'm always right (this is particularly true if I'm a judge). If you want to own your writing, write a novel. Or a Facebook post.

Learn grammar.

Probably the best advice I ever got in my professional career was to read a grammar book cover to cover, like a novel. I came across rules I never knew existed, and even though I couldn't memorize or master them simply by reading them once, I thereafter knew enough to look them up as needed. You should do the same. Try "The Chicago Manual of Style" or, specifically for lawyers, Bryan Garner's "The Redbook."

Learn citation.

Mastering "The Bluebook" or the "California Manual of Style" is an easy way to make a good impression. Follow the rules, be consistent and double-check your jump cites.

Learn what parallel construction is and employ it. Always. Please.

Guide me.

Use topic or thesis sentences for every paragraph and make sure each paragraph sticks to what you've mentioned in that sentence. Likewise, guide me with headings and subheadings. If I'm on my fourth page of text without having encountered a heading or subheading, I've completely forgotten what you're talking about and am now thinking about what I'm going to have for dinner.

Don't try to show me how smart you are.

In only the rarest of circumstances am I interested in exhaustive surveys of the history of the law. Nor do I care to resort to the dictionary to try to figure out what you're saying. Just tell me what the law is now, in words I can understand. I know you're smart. That's why I hired you.

Remember that you are an advocate, not a scholar.

To the extent possible, use only cases in which the party similarly situated to your client wins. A case may have a succinct and comprehensive statement of the applicable law written by the smartest jurist in the land, but if in it your guy loses, it's not persuasive. Do not cite it unless it's binding authority and you must distinguish it.

Proofread.

One of two people might proofread the document you've written: you, a young associate trying to make a good impression, or me, a very busy and expensive partner. Who do you think should do it? I think we both know the answer. (A plug here for the wonderful "The Curmudgeon's Guide to Practicing Law," by Mark Herrmann, a partner at Jones Day. I heard him make this point at a talk he gave promoting the book.)

Proofread at least once without reading at all.

Many young lawyers read, write, edit and proofread only on a computer screen. But even in this age of electronic filing, most judges require a courtesy hard copy. Look at a hard copy of your document, every page of it, at least once without actually reading it. Check that headings are properly formatted, page numbers are correct, paragraph indents are aligned, right justification is off, line spacing is correct - make sure the overall appearance of your document is clean and correct. You wouldn't have interviewed for this job wearing a wrinkled suit; don't give me a sloppy document.

Read good writing.

You do not "peek" my interest by misspelling words. You do not make mistakes "on accident." Otherwise bright young lawyers sometimes write ignorantly, perhaps because you spend your days reading instant messages rather than carefully written and edited books and periodicals. The day may come when hyphens cease to exist and a singular antecedent can take a plural pronoun, but it's not here yet.

Beware all shibboleths but the ones listed here.

The passive voice is not always to be avoided (if you represent a criminal defendant, for example, you might want to describe the crime that was committed rather than the crime he committed). IRAC is not mandatory in all circumstances (for instance, sometimes an issue is a slam dunk, and you need to say so in one carefully crafted sentence). "Clearly" and "of course" need not be banned entirely from legal writing (ever read a Supreme Court opinion?). The key to all good legal writing is to be familiar with the shibboleths, understand why they generally apply and veer from them only when you have a readily articulable reason.

The late writer and teacher David Foster Wallace regularly lamented his students' lack of facility with the English language, to the point that he became "pathologically obsessed with usage" and would suspend the students' study of literature for weeks to work on the mechanics of writing. Wallace wasn't proud of his behavior - "it's got elements of fanaticism and rage to it, plus a snobbishness that I know I'd be mortified to display about anything else" - but he couldn't help himself. As long as readers like Wallace (and, I admit, myself) exist, you simply can't afford to risk your client's cause with an errant semicolon or misplaced "only." I'm not asking you to write with wit or erudition; just don't make me foam at the mouth!

Jean Rosenbluth is the director of the Legal Writing and Advocacy Program at USC's Gould School of Law. She was previously a federal prosecutor in the criminal appeals section of the U.S. attorney's office in Los Angeles.

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