This blog explores why legal writing is so difficult, and how it does not have to be, as well, as how you can improve your legal writing skills, and quickly! The blog addresses the following:
- Logic and Persuasive Writing
- Paragraph Structure
- Grammar
- Active v. Passive Voice
- Slang or Colloquial Expressions (particularly in Verb Choice)
- Quoting
- Legalese
The practice of law, as a trade, is based upon logical reasoning, flawless writing, and persuasive argument. [1] Not surprisingly, these three skills have evolved from the classical and medieval curriculum of grammar, logic, and rhetoric–the trivium. [2]
Logic and Persuasive Writing
Logic is necessary to excel in the law, but many students of the law have not learned logic in college. No one has taught college students how to create and construct legal arguments. [3] Indeed, incoming law students should, but do not, know the basics of classical rhetoric: the different modes of persuasion and how to identify fallacies. [4] Many students do not possess these skills when they enter law school. And, many are not prepared for the rigorous analysis required. [5] College students have deficits in critical reading, complex reasoning, and writing during the first two years of college. Rigorous college courses with extensive reading and writing requirements can result in true academic improvement. [6]
One experienced law professor found that students who think unclearly write unclearly. [7] Preeminent legal-writing expert, Bryan A. Garner, notes that it is no wonder that even lawyers can’t write: law schools provide students with “poorly-written, legalese opinions that read like over-the-top . . . parodies of stiffness and hyper-formality.” [8] Garner faults the law school system where professors offer little if any feedback on students’ writing on their exams or writing assignments. [9]
How can you develop your legal analysis or logical thinking skills right now? Consider taking a legal writing course. There are many good legal writing courses available online. My course, Legal Writing Launch, is a great choice because you can take it at your own pace, and it includes options for drafting actual assignments for litigation and having live instructor feedback. It is available at LegalWritingLaunch.com.
Paragraph Structure
In Legal Writing Launch, students will learn to draft Power-Packed Paragraphs™ using the legal reasoning structure taught in law school—Issue, Rule, Analysis, and Conclusion, commonly known as IRAC.
The Power-Packed Paragraph™*
In legal writing, if you do not wish to lose your reader immediately, you must write in power-packed paragraphs. What is a power-packed paragraph? It is a phrase I coined, for law, after learning the expression from one of my excellent high school English teachers! She used the expression to describe the paragraph structure for writing basic English papers.
Preferring CRAC to IRAC
What is a power-picked paragraph in law? I prefer CRAC . . . to IRAC. Those already in law know that IRAC is the analytical structure law professors teach students in drafting legal documents, like motions. IRAC is Issue, Rule, Analysis, and Conclusion. CRAC is Conclusion, Rule, Analysis, and Conclusion. Let’s apply each element of IRAC in a power-packed paragraph. Then, we will see why I prefer CRAC.
IRAC at Work
The Issue, generally, is a mix of law and facts that the writer uses to pose as a question. For instance: Is a jury likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her?
Next, the writer states the Rule moving from “big to small.” In other words, the drafter states the broader legal principle and “drills down” to move to the exact elements. Here is an example: For murder, the defendant must have the mental state of malice aforethought at the time of the killing. (Pen. Code, § 187.) Malice aforethought is either express or implied. (Ibid.) A defendant has the mental state of express malice aforethought when he/she/they has/have the intent to kill. (Ibid.)
What follows next is the Analysis where the writer states the facts/evidence, and marries the facts to the law. Using our hypothetical: Defendant Jack King (defendant) extracted a gun from under his suit jacket and fired it at his wife and victim, Debra Jones, point-blank. Specifically, he had a gun under his suit jacket, having placed it there himself. The defendant removed it. Then, he aimed the gun at his wife. Based upon the forensic evidence—specifically the gunshot residue evidence on the defendant’s right hand, the prosecution’s forensic expert will opine that the defendant fired the gun, striking his wife, from only inches away. When the defendant removed his gun from his jacket, aimed it at his wife, and pulled the trigger, he had formed the intent to kill her.
And last, in the paragraph, is a brief Conclusion. (If the paragraph is short and the Conclusion does not add anything, the writer can omit it.) Here: Therefore, a jury is likely to find that the defendant committed first-degree murder when he shot his wife five times, point-blank and killed her.
That’s IRAC.
Why No Love for IRAC?
Why do I have no love for IRAC? That’s not how lawyers write in real life. What I mean is that lawyers do not start every paragraph with “the issue here is . . . .” This just isn’t strong legal writing. Attorneys are advocates, and in litigation, starting every paragraph with a question detracts from making a forceful argument. It is important not to distract the reader. California Court of Appeal Justice Jim Humes, in an interview, agreed that it is key for legal writers not to distract the reader. This includes attorneys not distracting court of appeal justices with poor grammar, writing briefs that are too long, and significantly here, not using the introduction well. Justice Humes said:
“The most important paragraph of every brief is the first paragraph: the opening paragraph. Because in that opening paragraph, you’ve got to convince the judge, you’ve got to explain to the judge what’s going on, what the issue is and why you should win. You have to do that right off the bat. You basically say, ‘This is what I’m going to talk about in this brief and this is why you should rule in my favor.’ That’s the prime real estate of any brief: that first opening paragraph. But after that, then you absolutely have to be persuasive, you have to be brief, you have to be concise, you have to be clear, you have to be readable. You have to be, and this is hugely important, non-distracting.”
The Key Difference Between IRAC and CRAC
The only difference between IRAC and CRAC is the first sentence—the topic sentence in the power-packed paragraph. With the Issue, the topic sentence is a question. Under CRAC, the first Conclusion is a topic sentence and is an affirmative statement. Either way, this topic sentence must contain a mix of law and facts. For example, using CRAC, the topic sentence would be: The jury is likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her. What’s wrong with having an issue statement in every paragraph? It is “wimpy” writing. Real lawyers write as advocates for their clients and take every opportunity to write forcefully. Can you imagine in a motion that the defense counsel files with the court, if counsel started every paragraph with a question? This weak writing does not serve the client. As you can see, CRAC is what lawyers use in the real world. (Some commentators even refer to the preferred structure as CREAC, slipping Evidence into the term.)
Why Not Start a Power-Packed Paragraph with the Rule?
Don’t start a paragraph with the Rule. You may be tempted to do this, but don’t. New legal writers recognize that all legal documents revolve around both the facts and the law. The law is new to them in the relative scheme of things. When the drafter starts a paragraph with the Rule, the reader has no idea what the writer is discussing. For instance, if the writer started the paragraph with the law only, it might sound like this: For murder, the defendant must have the mental state of malice aforethought at the time of the killing. (Pen. Code, § 187.) So, what is the problem? Let’s assume that the reader is a partner at a criminal law defense practice and has any number of murder cases. The partner is thinking which murder case is this? As writers, we need to make the reader’s work easy—tell him/her/them exactly which case this is and what the legal analysis is. Writing the following is much more likely to guide the busy reader: A jury is likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her. The reader thinks: I remember this case and I understand the legal analysis here. Do not bury the lead. And, hit the reader “over the head” with the analysis.
There Are Proper Uses for IRAC
Don’t get me wrong, there is plenty of room in law for IRAC. For instance, in a legal memo, an attorney may be recognizing a true dilemma, and state initially what the issue is. The lawyer writes: Is a jury likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her? If so, we should consider requesting a settlement for a manslaughter charge. And, under appellate rules, a court of appeal may require a statement of all of the issues, so the court knows exactly which issues are “teed up” for the court’s resolution.
The Importance of a Topic Sentence in Each Paragraph
The topic sentence in a power-picked paragraph is critical. It may be that your busy reader reads no more in that paragraph. Wait, what? Yes, judges, partners, and senior associates may read a topic sentence carefully and at best, skim the remainder of the paragraph. Readers are busy. I once asked a criminal court judge if she had read my brief, and she raised it from her lap, and said, “I’m reading it now.” The judge was presiding over a busy motion calendar.
Our Power-Packed Paragraph, in its Entirety, Using CRAC
Here is the whole power-packed paragraph discussed above, using CRAC:
A jury is likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her. For murder, the defendant must have the mental state of malice aforethought at the time of the killing. (Pen. Code, § 187.) Malice aforethought is either express or implied. (Ibid.) A defendant has the mental state of express malice aforethought when he/she/they has/have the intent to kill. (Ibid.) Defendant Jack King (defendant) extracted a gun from under his suit jacket and fired it at his wife and victim, Debra Jones, point-blank. Specifically, he had a gun under his suit jacket, having placed it there himself. The defendant removed it. Then, he aimed the gun at his wife. Based upon the forensic evidence—specifically the gunshot residue evidence on the defendant’s right hand, the prosecution’s forensic expert will opine that the defendant fired the gun, striking his wife, from only inches away. When the defendant removed his gun from his jacket, aimed it at his wife, and pulled the trigger, he had formed the intent to kill her. Therefore, a jury is likely to find that the defendant committed first-degree murder when he shot his wife five times, point-blank and killed her.
Grammar
The value of grammar in legal writing cannot be overstated. In fact, one commentator has discussed the value of the Core Grammar for Lawyers on-line platform to prepare students for their first year of law school. [10] Legal Writing Launch offers Core Grammar as part of its focus in ensuring that students know the fundamentals of grammar.
Here are a few of the problems that legal writers struggle with in grammar:
Passive Voice v. Active Voice
Legal and expository writers should write in the active voice rather than the passive voice in a sentence. The active voice is: subject, verb, object. On the other hand, passive voice is: object, verb, subject. Focus upon the actor who is conducting the action. Active voice makes for more persuasive writing. There are a few occasions when passive voice might be applicable—perhaps if the writer does know who the subject is. That said, writing in passive voice is a sure sign of poor writing.
Examples of Active Voice
- A jury convicted John Jones of manslaughter.
- He rode the bicycle.
With this first sentence, the jury is the subject, convicted is the verb, and Jones is the object.
Examples of Passive Voice
- John Jones was convicted by a jury.
- The bicycle was ridden by him.
In the first sentence, Jones is the object, the jury is the subject, and the verb is convicted. In the next sentence, the bicycle is the object, was ridden is the verb, and the pronoun him is the object. One tip for determining if the writer has drafted a sentence in passive voice is to add “by Zombies.” Think with “he was convicted,” by whom? By Zombies! If the writer can add “by Zombies” to the sentence, the writer has most likely written the sentence in the passive voice.
Colloquial Expressions or Slang Particularly in Verb Choice
When drafters write using colloquial expressions or slang particularly in verb choice, the reader believes that the drafter is a poor writer. Drafters should double-check their verb choice before submitting a document. Writers can also consult a thesaurus. It is clear then that drafters should avoid using colloquial expressions. When the drafter uses a more specific verb, the sentence is precise and is more formal. After all, legal and expository writing are both formal writing practices.
Examples of colloquial expressions
- He got into a truck.
- The court called out the defendant’s behavior.
Examples of the Use of a Better Verb
- He entered the truck.
- The court criticized the defendant’s behavior.
Use of Colloquial Expressions to Make a Point
Drafters will use colloquial expressions occasionally to make a point. Some commentators suggest not focusing attention on the expression by using quotations, but others recommend it. (This writer is in the second camp. Quotations signify that the writer understands the principle that he/she/they generally should not be using colloquial expressions, but has made an exception because it is important to state the phrase this way.)
An example of a colloquial expression to make a point
- Some grammar and basic writing “take-aways” are . . .
Legalese
Legal writers should avoid legalese, and instead, write in plain English. Legalese is defined as legal writing, which is overly formal and technical, and therefore, difficult for the reader to understand.
An Example of Legalese
- The police conducted a search of the container herein.
An Example in Plain English
- The police searched the container in the defendant’s basement.
Many law schools teach students to avoid using legalese. It is common practice for lawyers not to use legalese in motions and trial and appellate briefs. There are lawyers, however, whose templates for other documents such as settlement agreements continue to use some legalese there. It is a better practice to eliminate the use of legalese in all legal documents. The goal is for the reader to understand all legal documents; legalese does not create this readability.
Quoting
Do not quote word for word from long statutes and instead summarize them. Not quoting every word is a challenging concept for new legal writers. New practitioners are fearful that they will be plagiarizing material if they do not cite an entire quoted passage. As long as the writer summarizes the quote, and provides the exact citation to the reference, the writer is not plagiarizing. In keeping with writing in plain English, writers should summarize the material or provide select quotes in quotation marks from it.
An Example of a Dense Statute
The following example of quoted material is too dense and does not make for easy reading.
- 18 U.S.C. § 2113(a) states:
“Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to belonging to, or in the care, custody, control, management, or possession obtain by extortion any property or money or any other thing of value of, any bank, credit union, or any savings and loan in part as bank, credit association; or Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or on, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny.”
An Example of the Statute’s Summary
The drafter should summarize the statute.
- 18 U.S.C. § 2113(a) defines bank robbery as an individual’s taking from another, by force or fear, at a bank, property or money belonging to the bank.
The goal is to write in plain English so that the reader finds the language easy to understand. In our course, Legal Writing Launch, we focus upon other key areas of proper grammar for practitioners. Also, our blog, Drafting a Strong Business Email in a Legal Setting is a great resource for writing professionals emails in the law office.
How Can You Invest in Yourself?
Billionaire investor Warren Buffet states, “[b]y far the best investment you can make is in yourself.” [11] Buffett added that developing one’s communication skills—both in writing and in-person—”can increase [one’s] value by at least fifty percent.” [12]
Click the button below to see if my course might assist you to write with correct grammar, in a logical manner, and persuasively. (View the introductory video, and access the actual contents of the Course under any of the course levels—Basic Course, Assignment Editing Add-On, or Weekly Zoom Meeting [includes Assignment-Editing].)
[1] Viatar, Adams & Reese, Legal Education’s Perfect Storm: Law Students’ Poor Writing and Legal Analysis Skills Collide with Dismal Employment Prospects, Creating the Urge to Reconfigure the First-Year Curriculum (Legal Education’s Perfect Storm) (2012) 61 Cath. U. L Rev. 735, 755-756. https://papers.ssrn.com/sol3/papers.cfm? 755abstract_id=2142812#:~:text=Legal%20Education%27s%20Perfect%20Storm%3A%20Law%20Students%27%20Poor%20Writing,the%20Urgent%20Need%20to%20Reconfigure%20the%20First-Year%20Curriculum
[2] Legal Education’s Perfect Storm, supra, at p. 756.
[3] Legal Education’s Perfect Storm, supra, at pp. 735 & 755, n. 97.
[4] Legal Education’s Perfect Storm, supra, at p. 759.
[5] Flanagan, The Kids Aren’t Alright: Rethinking the Law Students Skills Deficit (Kids Aren’t Alright) (2015) Brigham Young Univ. Educ. And Law Journal 136, 175. https://scholarship.law.umassd.edu/fac_pubs/90/
[6] Kids Aren’t Alright, supra, at p. 175.
[7] Legal Education’s Perfect Storm, supra, at pp. 735 & 742, n. 26.
[8] Garnar, Why Lawyers Can’t Write, 1, 2. https://www.abajournal.com/magazine/article/why_lawyers_cant_write/
[9] Garnar, Why Lawyers Can’t Write, 1, 2.
[10] Kids Aren’t Alright, supra, at p. 175 and https://www.coregrammarforlawyers.com/.
[11] Warren Buffet Says This 1 Investment Decision Will Be By Far the Best One You Ever Make, Inc.com (Jan. 2021). https://www.inc.com/marcel-schwantes/warren-buffett-says-this-1-investment-decision-will-by-far-be-best-youll-ever-make.html#:~:text=In%20a%202019%20interview%20with,by%20at%20least%2050%20percent.%22
[12] Warren Buffet Says This 1 Investment Decision Will Be By Far the Best One You Ever Make, supra.
