Clarity and Context: Legal Writing Tips from a Federal Judge

Clarity and Context: Legal Writing Tips from a Federal Judge

7.30.2020

By Brandon Vogel

You can learn a lot about legal writing simply by looking at your phone number.

You are more likely to remember the number when it’s broken down by area code, the first three digits, and then the last four digits than if all 10 digits are listed together.

The same principles apply to legal writing. Breaking down your argument into manageable chunks can help your writing stand out and increase momentum for your case.

This was one of several key takeaways from Hon. Robert E. Bacharach – United States Court of Appeals for the Tenth Circuit on the recent CLE Webinar, “Legal Writing From A Federal Judge’s Perspective.”

Bacharach recently wrote the book, “Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word.”

“In my view, the most important aspect of legal writing is clarity,” said Bacharach. “You can only persuade the judge if they understand what you are saying.” He explained that “lost momentum is poisonous to persuasion.”

He said that there are four primary ways to achieve clarity in your own legal writing: create context before detail, relax your diction and use simple language, link information in your sentences, and convey information into digestible bits.

The psychological study, Contextual Prerequisites for Understanding: Some Investigations of Comprehension and Recall, concluded that it is better to do few things at once than too many (Bransford and Johnson, 1972).

Your goal is to get the reader the context for the facts before reading the facts, said Bacharach. “Provide the reader the context in advance for all of the factual and legal information that follows.”

He said the ways to provide context for arguments is to give your information an introduction that serves one overarching purpose: lay out the entirety of your argument.

“Informative headings inform the reader by providing essential context,” said Bacharach, “It will lead to improved recall. Readers tend to focus on the topic that is identified.”

Along with effective introductions and meaningful informative headings, use topic sentences, advised Bacharach. Studies show they provide a valuable opportunity to focus the reader on the factual detail in the paragraphs.

Bacaharach recommended that lawyers avoid Legalese, Latin and big words whenever possible.

“The goal is to make it easier for the judge to understand. The easier it is for the judge to understand, the easier it is for you to build momentum for your argument,” said Bacharach.

How lawyers link the information in your sentences is key to credibility. Avoid common or empty transitions such as furthermore, moreover, and in addition.

“The function of the transition is to show substantively the info you are about to give the readers,” said Bacharach. “Without substantive transitions, readers may stumble and miss the point of why you have linked together particular information.”

Enabling the reader to instantly see the relationship between old and new information is essential.

“That linkage that the reader can see is what creates and provides the momentum of your argument,” said Bacharach.

Lastly, lawyers need to be mindful of the reader’s limited short-term memory.

“Make the chunks easy to spot. Clarity comes only when we break the meaning into discernible bits that can be processed and digested easily by the reader,” said Bacharach.