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Rookie Mistakes

By Megan Kinneyn | Feb. 2, 2007

News

Law Office Management

Feb. 2, 2007

Rookie Mistakes

New lawyers make some major errors when writing their first memos and briefs. Here are some tips to help you look like a pro your first year on the job. By Clyde Leland

By Clyde Leland
     
      People often ask me if I think the quality of legal writing has deteriorated since I started teaching writing to lawyers 20 years ago. Taking no offense at the implied connection, I tell them I don't think the profession's collective intellect and talent are as bad as the jokes would lead you to believe; I don't even think most briefs are so bad, although some?even some submitted to the highest courts in the land?are awful. Here's one thing I have noticed about what happens to the quality of legal writing over time: Almost every lawyer gets better at it as he or she gets experience. And a corollary to that observation is this: You can usually tell when something was written by a new lawyer or a law student.
      How can you tell? In sports, they call them "rookie mistakes"; in the practice of law, they're "the things you didn't learn in law school." But it's not fair to blame the law schools, and certainly not the overworked, underpaid, unappreciated legal writing instructors. They can't teach how to practice law any more than Little League coaches can show kids how to hit a 97-mile-per-hour fastball. The game may be the same, but new lawyers are in a different league now, facing a different level of competition, and some of the rules have changed.
      The first big change has to do with time. Novice lawyers don't have enough time to write what they want to, to do a perfect job. And the readers?whether judges, clerks, bureaucrats, or the clients and senior lawyers they work for?don't have enough time to read what they've written.
      The other big change from school is that lawyers' goals are very different from what they were when they were law students. In law school, as in the rest of your academic career, you tried to impress your readers with how smart you were so they would give you a good grade. But in writing legal briefs and memos, you are trying to persuade, not impress, the reader. You want a ruling in your favor, not an A on your brief. Of course, sometimes you hope to impress the people you work for, both other lawyers and clients. But those people will be most impressed if what you write accomplishes its purpose, whether explaining a question of law in a memo or persuading a decision maker.
      Most of the rookie mistakes I've seen in new lawyers' writing come from those two things: inattention to the reader's time pressures, or misunderstanding the goal of the document.
      Here are four things new lawyers should consider to avoid sounding so much like new lawyers.
     
      1. Lawyers and judges don't know as much as you think they know
      When writing a legal memo, a new lawyer often assumes that the attorney assigning the memo is thoroughly familiar not only with the facts and procedural history of the matter but also with the applicable law3certainly regarding the big cases in the area. Even if the assigning attorney is well informed, however, he or she should not have to look, or remember, beyond the memo to find all the necessary information; there isn't time. Indeed, there may not be time to read the memo carefully until the question it answers comes up again, perhaps months later, perhaps in a different case for a different client.
      Similarly, a judge with dozens of matters on a law-and-motion calendar for the day may not remember the substance of, or the reason for, an order he or she issued a month ago, let alone the relationships among the parties to the case. Nor should an advocate assume that the judge (or clerk) knows the law, even on a simple issue. Remember that the court is asked to rule on many different issues every day. The judge may be able to keep those issues straight but also will appreciate it if you help by stating the rules simply and clearly, so the court can apply them to your case.
     
      2. Get to the point right away
      Although a busy reader may need help remembering the facts and law of a case, the reader also wants to know the point of the document right away. Thus, a brief should not begin by describing the issue, then analyze the issue, then apply the analysis to the case; rather, the brief should begin by saying what should happen in the case, and then discuss the reasons.
      Imagine that the court looking at a motion begins by asking, "What's the problem here, and what do you want me to do about it?" Answer those questions briefly and immediately, and expect the judge and clerk to skim the rest of the document to see if you've explained why what you want them to do is required, or at least authorized, by the law. Remember: They are skimming not because they don't care or because they are unintelligent; they are skimming because they don't have time to read more carefully.
      Similarly, the basic format of a legal memo begins with a Short Answer because that is what the reader is looking for: the answer to the question asked. If the reader gets a clear answer, then he or she is able to save time by skimming the rest of the memo to confirm that the research supports that answer. A memo that answers the question without taking up too much of the reader's time is an effective memo.
     
      3. Tell the readers what they need to know, not everything you know
      One vestige of academic life is the injunction to "show your work," not just the answer to a problem. But that was partly to show the instructor something about you, usually how much work you put into the project. The court does not need to know every case that addresses your issue, not even every result favorable to your issue. You should use cases to advance the discussion by showing how the relevant rules were applied in a particular fact situation. A case that says the same thing as the one you've just cited does not advance the discussion?it simply wastes the reader's time, and the reader has no time to waste.
      Similarly, the attorney who assigned you a memo is not interested in the avenues of your research that reached dead ends. You may have reached the correct conclusion in a roundabout way, but you should show your reader how to reach that conclusion in the most direct way.
      A new attorney may understandably feel it's necessary to justify the many hours spent researching what turned out to be a long memo, especially if the time is being billed to the client. But the busy reader, who is more concerned about his or her time than about yours, would rather get an eight-page memo than a twelve-page one, so long as it says what's needed to understand the answer to the question.
     
      4. A legal memo does not have to say what the other side will argue or how a court will rule
      A legal memo should do two things: First, answer the question, "What is the law on [some specific area of the law]?" and second, discuss how the law applies to a situation similar to the one your client is in. When summarizing and explaining the law governing an issue, you need to review what the law says, including what courts have said in different situations; however, you don't need to guess what your adversary is going to say. (If your adversary has actually made the argument, that's a different story; it may even be part of your factual background.)
      I suspect that new lawyers write, "The plaintiff may argue ... " because they are searching for a way to introduce a counterargument to the prevailing view of the law, or to the view the writer wants to advance. But it makes more sense to introduce such an argument directly, not through the opposing side. For example, you could say, "A few courts have disagreed, but each such decision was based on facts very different from ours."
      Similarly, the job of the memo's author is to explain what factors courts consider when making a decision, not to predict what the decision will be. Yet new lawyers frequently write, "The court is likely to hold ... ," as if they were familiar with the rulings and predilections of the judge hearing the matter. Indeed, predicting how a particular court will rule is usually based on the writer's experience with that court?which is, by definition, the one thing that an inexperienced attorney does not have.
      The good news is that lawyers' writing gets better with practice. The key is to remember your audience and your goals: Write so that readers too busy to read everything you wrote will understand what the problem is and how the law applies to address that problem.
     
      Clyde Leland (clydeleland@sbcglobal.net) teaches legal writing and presentation skills for Leland Communications in Berkeley.
     
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Megan Kinneyn

Daily Journal Staff Writer

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