Legal writing is difficult but there is no defense for poor legal writing.
This was one of several takeaways from Hon. Gerald Lebovits, a state Supreme Court justice, during “Persuasive Legal Writing in the Age of COVID-19.” Lebovits writes the Legal Writer column in the Bar Journal.
He sees legal writing, briefs and submissions to the court, as more important than ever, particularly as judges and lawyers rely more on technology. “Briefs, more than ever, are essential. If you are not appearing before a judge, your writing must take control,” said Lebovits.
“When I think about the future of the court system, I can think about the dystopian view – the bad things that could happen, but I believe that we are going to get stronger and better. Litigation will get better,” said Lebvovits.
He explained that if the judge is going to rule against you, you want the judge to look at you and feel it. “It shouldn’t be anonymous,” he added. He cautioned that our technology hasn’t fully replaced in-person advocacy yet and won’t for some time.
Know your audience
The twin pillars of legal writing, according to Lebovits, are to make the court want to rule for you and make it easy for the court to rule for you.
“You need to explain and show why the other side is wrong. You cannot just say the defendant is a thief. Show how you make that conclusion,” said Lebovits. “You have brought the reader to the end of the cliff and now they have to make the jump.”
Lebovits said that lawyers should write for the readers and be kind to them. Giving readers a clear and accessible organizational plan is key. “Put your strongest items first. Your strongest facts. Your strongest citations. Your strongest issues.”
Readers judge e-documents by how well they understand them, he said.
“Don’t force your readers to think. Don’t make your readers work too hard,” said Lebovits. “Your goal is to make it easy for the reader to understand. Connect the dots and make a logical structure.”
He advised lawyers to know the purpose of their documents. “The reader doesn’t know your case like you do,” said Lebovits.
Likewise, lawyers should write for judges and not like judges because they write for a different purpose. He said, “The goal is to know your audience. Your audience will be busy, skeptical judges. It’s good because they won’t take arguments at face value. They will think about them.”
The human mind can only process three to four items at a time so white space is key for helping the readers. Larger margins, indents and space between paragraphs can help give the readers’ eyes a needed rest.
Lebovits said that some judges print out materials, but others read on the screen. Adding subheadings and shortening paragraphs will help screen reading.
Putting citations in the text over footnotes and endnotes can improve readability. “If not important enough to go in the text, why are they going in the footnotes?” asked Lebovits.
Lebovits suggested lawyers keep sentences to fewer than 20 words. Paragraphs should not be more than 2/3 of a double-spaced page and even shorter for e-filed documents.
Sentence structure should go from old to new, simple to complex.” End each sentence with power. The strongest part of your sentence comes at the end so don’t end with a weak preposition,” said Lebovits. “Say things once all in one place.”
Keep it simple
If your legal writing can only be read by someone at the graduate level, keep editing. Try to get it to an eighth-grade level and, “Just maybe the judge will understand you.” A seventh-grade reading level is even better, he said. Flesch–Kincaid tests are available in Word to give you readability statistics.
When every word counts in an online setting cutting half your words will make your content more prominent. “No adjectives. No adverbs. Always pick verbs over nouns to show action,” said Lebovits.
Using synonyms can hurt your credibility, as can “cowardly qualifiers” like generally and usually. Archaic expressions? “Chew them up and spit them out,” said Lebovits. “Get rid of the foreign words (Latin, French, etc.) If there’s an English equivalent, use it.”
Acknowledging that “It’s harder to quit than smoking,” Lebovits advises to get rid of legalisms in favor of plain English. For example, I enclose herewith a copy of my brief. He said to remove herewith from the sentence. “It’s unnecessary” said Lebovits. “You take it out; your writing is stronger.” Likewise, the fewer syllables, the stronger your writing.
And, perhaps, most important, “Don’t write it, if you wouldn’t say it (i.e prior to).”