LawProse Lessons

Either and or are called correlative conjunctions when they appear in tandem. They present several grammatical and usage issues, and because they’re used so often, you’re well advised to commit a few rules to memory. Use them with paired items only. Once you get to three, drop either. Make sure the items they frame are …

LawProse Lesson #322: Best Practices for either . . . or. Read More »

Write an editorial in 45 minutes? Given that lawyers are professional writers, I’ve always thought that any good lawyer ought to be able to block out a period of 45 minutes, sit down, and write a publishable newspaper editorial during that time. Many can. But most can’t. It’s challenging to define a problem of current concern, …

LawProse Lesson #321: Write an editorial in 45 minutes? Read More »

Stopping and starting. Flow. Fluency. Continuity. These are some of the most challenging things to achieve in the process of writing. Here’s a tip: When you’re composing, and you need a little breather, never stop at the end of a section or paragraph. Instead, begin the following sentence and then take your break. You’ll naturally …

LawProse Lesson #320: Stopping and starting. Read More »

Opinion letters. The phrase opinion letter denotes a broad category encompassing many types of lawyers’ letters with various purposes and formats. Examples abound: usury opinions in loan transactions, title opinions in real-estate transactions, closing opinions in securities offerings, coverage opinions in insurance matters. Such a letter is almost always a written opinion of law regarding …

LawProse Lesson #319: Opinion letters Read More »

Powerful pleadings. Some people—mostly journalists, but even some lawyers—refer to all court papers as “pleadings.” In precise usage, however, pleadings are the documents containing the written allegations that each party must communicate to the opponent before trial so that each will know what contentions must be supported (or rebutted) by the evidence. Examples are complaints, …

LawProse Lesson #318: Powerful pleadings. Read More »

Writing in solitude—with concentration. There’s a crisis of inattention in the modern world. We’re all surrounded by electronic devices that sound off continually, requiring—or seeming to require—our immediate attention. We end up concentrating for five or ten seconds before mentally resting a bit until the next surge of attention is required (or seemingly required). Scientists …

LawProse Lesson #317: Writing in solitude. Read More »

Try this when revising: Mark your changes on a hard copy—in ink. Then enter your changes yourself. You’ll find that merely touching the keys sharpens your thoughts. You’ll be making more revisions as you go, especially toward an appropriate copiousness of thought. You’ll cut later, to be sure, but one aspect of early revision is …

LawProse Lesson #316: A key to revising effectively. Read More »

Over the past two weeks, we’ve seen that the first two criteria in assessing the quality of motions and responses are to examine page 1 and the point headings. Now for the third. Step 3 is the fresh conclusion. It should be a short, punchy summary that doesn’t merely repeat what’s been said before. It …

LawProse Lesson #315: Judging Motions: Part 3. Read More »

Last week, we saw that the first step in assessing a motion’s quality is to examine the form and content of the first half-page of prose. Now for the second step. Step 2 is to examine the point headings. Make a list of them. Look at the headings in the order in which they occur. …

LawProse Lesson #314: Judging Motions: Part 2. Read More »

Judges often lament their inability to grade motions* (and responses to motions) in addition to declaring winners and losers. To be sure, a C or D motion sometimes wins—because it’s not uncommon to have lackluster briefing on both sides. In fact, that’s the rule, not the exception. But a well-written motion saves the court’s time …

LawProse Lesson #313: Judging Motions: Part 1. Read More »

Shortly before he died last month, Charles Krauthammer, the illustrious political commentator, gave an interview in which he discussed his writing process. Just as we do in LawProse seminars, he emphasized the architecture of writing:  “You write a column, an essay, anything: if you get the structure wrong, you’ll never get it right. You’ll spend …

LawProse Lesson #312: Krauthammer’s Writing Process. Read More »

In any good argument, it’s important to refute the obvious counterarguments that would naturally occur to an intelligent reader—even when you’re the first to argue. Why? Three reasons. First, doing so shows your readers or listeners that you’ve thought through the issue. The problem will have occurred to the judge, who may well view you …

LawProse Lesson #311: Preemptive refutation. Read More »

In this space, you’ve seen explanations of how to prepare good point headings, which are exceedingly rare. Three of the 100 tips in The Winning Brief illustrate first-rate point headings—which should be complete sentences set down-style (not in initial caps). More than 20 tables of contents from winning briefs appear as examples of how to …

LawProse Lesson #310: The Mastery of Point Headings. Read More »

Communicative fervor. That’s the answer to the question, What quality do most legal writers lack? Communicative fervor. To get your point across, you must ardently want to do so. Passionately. Fervently. That means understanding how readers will see the message—and this in turn requires psychological insight. It’s no mean feat to be understandable to others. …

LawProse Lesson #309: Communicative fervor. Read More »

Don’t quote dictum without noting that it’s dictum. Of all the problems in jurisprudence, one of the trickiest can be distinguishing between a court’s holding and its dictum. It often takes a close inspection of the court’s writing to make that distinction. Essentially, a holding is an appellate court’s determination of a matter of law …

LawProse Lesson #308: Acknowledging dictum. Read More »

It’s well known that readers tend to skip block quotations. This results partly from writers’ habit of failing to introduce them properly, and partly from readers’ skepticism about the applicability of others’ words to the problem at hand, especially if those words are numerous. If you quote in chunks of under 50 words, and you …

LawProse Lesson #307: Minimizing block quotations. Read More »

If you’re writing a brief to the Eleventh Circuit, don’t cite an Eleventh Circuit case (especially an unpublished one) and then add that it was quoting the U.S. Supreme Court. Instead, quote the U.S. Supreme Court and then add that the passage quoted has been explicitly followed by the Eleventh Circuit.

Continuing our series on quotations, let’s look at a technique that ensures precision. When quoting, you must make sure that every quotation is both correctly attributed and fully accurate—word for word and even character for character. It’s now possible to ensure absolute accuracy of the crucial legal instrument by photographically reproducing the precise provision at …

LawProse Lesson #305: Quotations: Photographic reproductions. Read More »

Last week, we discussed the “cleaned-up” quotation. Continuing our series on quotations, we should look at how—and why—to be as concise as possible. Effective legal writers make every quotation as succinct as possible, ruthlessly omitting everything but the pith of what’s needed. Quotations play mere supporting roles in your argument, even if they’re from the …

LawProse Lesson #304: Quotations: Be succinct. Read More »

Last week, we discussed the circumstances in which it’s permissible to tacitly change a quotation to regularize it to house style. This week, we’ll discuss another type of cosmetic alteration, something like a bibliographic face-lift: the “cleaned-up” quotation. In recent years, some legal writers have become so obsessed with noting every little bibliographic detail—for example, …

LawProse Lesson #303: Cleaned-up quotations and citations. Read More »