Thoughts on Legal Writing from the Greatest of Them All: James W. McElhaney

3.4.2020

By Gerald Lebovits

The Legal Writer continues its series on what we can learn from the great teachers of writing, both lawyers and non-lawyers. In this column, we highlight the teachings of distinguished trial lawyer and law professor, James McElhaney (1938–2017).

After graduating from Duke Law School in 1962, McElhaney served in the Army’s Judge Advocate General Corps for four years.¹ In 1966, he began his academic career at the University of Maryland School of Law, before joining the law faculty of Southern Methodist University, and then moving to Case Western Reserve University School of Law in 1976, where he was the Joseph Hostetler Professor Emeritus of Trial Practice and Advocacy until his retirement from teaching in 2002.² McElhaney is remembered as a masterful teacher and is credited, together with Irving Younger,³ for pioneering trial-practice instruction in American legal education.⁴

Besides his accomplishments as a teacher, McElhaney is also remembered as a writer — and as an influential teacher of legal writing. From 1975 to 2011, he wrote over 260 columns, mostly on trial advocacy but a number on legal writing, for the journal Litigation and the ABA Journal.⁵ McElhaney infused his columns with his imagination and creativity, often using a cast of fictional characters who discussed trial-practice issues and offered advice on how to address them.⁶

To McElhaney, good lawyering requires good story telling.⁷ He emphasized that it’s not enough that legal writing be accessible, clear, and straightforward. Legal writing is judged on its visceral impact on its audience.⁸ McElhaney taught his students that juries and judges are, foremost, people.⁹ Lawyers must appeal to hearts, not just minds.¹⁰

This column focuses on McElhaney thoughts on legal writing, compiled from his trial and legal-writing columns.

LEGAL WRITING THAT WORKS

“Good legal writing is good writing. It’s also good lawyering. Good writing and good lawyering both involve taking risks.”¹¹

Every Point Should Count. According to McElhaney, “It’s not that you’ve got to say something — it’s that you’ve got something to say. The distinction is important.”¹² He explained that legal writing requires the writer to make risky choices about what to include and what to remove. For example, the writer must select best arguments while discarding the weak or implausible. Legal writers must also decide between inconsistent legal theories. Everything included and sparse. It’s powerful because nothing unnecessary ties it down. It’s the product of risky decisions that give the writer something to say. McElhaney explained that this way of thinking runs counter to traditional law-school assessment, in which students are rewarded for identifying and articulating every conceivable legal issue. In the real world of legal practice, McElhaney argued, discussing every possible legal issue produces a mishmash of slow, directionless writing.

Take Advantage of Context. McElhaney observed that legal rules have meaning only in the context of real events. The legal writer’s task is to convey the facts of the story in a way that persuades the reader to apply the legal rule in the writer’s favor. The facts of the story and the way the story is told are crucial.

Everything in the Law Is a Story. According to McElhaney, humans always use stories to understand facts and resolve issues. The winning brief therefore needs to tell a persuasive story. Judges admit that they begin to take sides as early as the facts section of a brief. That’s why, he said, the statement of facts “is the most important part of the brief because it points the way to elemental justice.”¹³

McElhaney proposed two tests to determine whether a statement of facts is effective. First, it stands alone. Anyone reading the statement of facts should be able to understand what the entire case is about. Second, the statement of facts should persuade the reader to take your side. Here, McElhaney recommended that the statement of facts be persuasive without being argumentative: facts, not opinions, are what ultimately persuade the reader. McElhaney suggested that writers resist the temptation to characterize or evaluate facts; they should leave that to the reader. Writers should merely guide their readers through the story, rather than impart their own opinions. Avoid excessive use of adjectives and adverbs. They get in the way of succinctly telling the story. Instead, use nouns and verbs to deliver the essence of the story. Last, understate rather than overstate the facts to earn the reader’s trust and confidence.

Write for the Ear. McElhaney’s simple and plainspoken writing style belies how meticulously he edited his work. He described lawyers as “professional communicators”¹⁴hired to write and speak effectively. It’s the lawyer who must take ultimate responsibility for communication and not allow an audience to strain to understand. McElhaney told legal writers continuously to polish their work to the extent that writing can be read seamlessly and also sounds right. Writers should read their writing aloud. Their ears will catch awkwardness, mistakes, and omissions that their eyes won’t pick up.

STYLE MATTERS

“Most legal writing is abysmal – stiff, abstract, stuffy. Why do we write that way in the first place?”¹⁵

Find the Right Tone. McElhaney believed that good legal writing must be clear and simple. He advised writers to remove anything that prevents immediate understanding. According to McElhaney, legal writing suffers when practitioners use legalese to convey legal concepts. He instead encouraged legal writers to stop trying to sound like lawyers — to drop the “verbal pomposity.”¹⁶ The goal of legal writing is to communicate with real people. Don’t attempt to imitate the tone and style of a judicial opinion, McElhaney wrote. This isn’t to say that legal writing should be informal. The key is to identify the right level of formality that fits the situation. Most legal writing is too stuffy, and “few judges ever complain that writing is too casual or too informal.”¹⁷ Use simple sentences and simple words. One idea per sentence is enough. Simple and direct assertions are powerful. They command the reader’s attention. Get rid of compound and complex sentences. Remember McElhaney’s maxim: “You want everything you say to command instant understanding.”¹⁸

Show; Don’t Tell. McElhaney stressed that verbs and nouns are better than adjectives and adverbs. He described verbs and nouns as the legal writer’s “workhorses”¹⁹ that constitute the heart of the written piece. In contrast, overuse of adverbs and adjectives makes it obvious that the legal writer is trying to tell the reader what to think and feel. McElhaney pointed out that the legal writer hasn’t earned the right to tell the reader how to respond to writing. Instead, McElhaney advised the legal writer to use writing to show an idea. That’ll make the reader more likely to go along with the writer’s conclusions. But when the legal writer tries to force the reader to adopt a point of view, the reader becomes suspicious and resists. As McElhaney noted, “The difference between showing and telling is, whose idea is it? People like their own ideas. That is part of your persuasive power.”²⁰

Make Every Page Attractive. McElhaney advised the legal writer to make writing appear attractive to the reader. Never send the message to the reader that “this is going to be a chore to read,” he wrote.²¹ McElhaney noted that when courts impose page limits on motions and briefs, practitioners sometimes resort to cramming their writing. This results in legal documents with text-heavy pages unappealing to the reader. Large paragraphs are daunting, so break them up, he said. Use intriguing titles and subheadings to stimulate the reader’s interest. Avoid unfamiliar acronyms and abbreviations; they’re obstacles to immediate understanding. Limit footnotes; they interrupt the flow of the text. As McElhaney pointed out, “If the point is worth making, it is worth putting in the text.”²²

Don’t Be Awkward. McElhaney advises legal writers that their “words should be transparent vehicles that let the reader see your ideas without straining to grasp your meaning.”²³ To do that, the legal writer should use the active voice unless there’s a particularly good reason to use the passive voice. McElhaney also advised against using words common in legal writing. The first are “manifestly,” “plainly,” and “obviously.” If something really is obvious, then the writer doesn’t need to highlight it. Let the writing speak for itself. The second are “egregious,” “outrageous,” and “outstandingly bad.” Same principle: If something really is that bad, then the writer shouldn’t need to highlight it. The third are “submit,” “argue,” “contend,” and “maintain.” These words imply that whatever position is being argued isn’t necessarily true. Use these words only when you discuss your opponent’s position, not your own. McElhaney also urged avoiding double negatives and “the former” and “the latter.”

Make It Come Alive. McElhaney advised legal writers to keep their readers engaged and interested. To accomplish this, they should write in the present tense whenever possible, he says. They should also aim to vary the pace, intensity, and tone of their writing. McElhaney suggests using rhetorical questions occasionally to focus the reader’s attention. Is this risky? Yes, but only if the rhetorical question is used the wrong way. Never use a rhetorical question as a substitute for argument . E.g., “Can anyone doubt that the bar association has utterly failed to do anything for solo practitioners?”²⁴ The point of a rhetorical question is not to challenge the reader to come up with arguments that refute your position. Instead, use a rhetorical question to focus an issue. E.g., “What has the bar association done for solo practitioners?”²⁵ By doing this, the reader feels invited to engage in the legal writer’s train of thought and participate in developing the writer’s argument.

The Legal Writer will continue its series on what we can learn from the great writing teachers — lawyers and non-lawyers.

1. See James Podgers, The World of McElhaney: Jim McElhaney Closes the Book on a Storied Career, But Angus Lives On, ABA J. (Oct. 1, 2012), http://www.abajournal.com/magazine/article/the_world_of_mcelhaney_jim_mcelhaney_closes_the_book_on_a_storied_career_bu.

2. Id.

3. The Legal Writer featured Professor Younger in Thoughts on Legal Writing from the Greatest of Them All: Irving Younger — Part I, 91 N.Y. St. B.J. 61 (Mar. 2019) and in Thoughts on Legal Writing from the Greatest of Them All: Irving Younger — Part II, 91 N.Y. St. B.J. 62 (Apr. 2019).

4. Podgers, supra note 1.

5. Id.

6. Id.

7. Id.

8. Id.

9. Id.

10. Id.

11. 2 James L. McElhaney, McElhaney’s Litigation 152 (2014).

12. Id.

13. Id. at 153.

14. Id. at 550.

15. Id. at 156.

16. Id.

17. Id. at 539.

18. Id. at 554.

19. Id. at 157.

20. Id.

21. Id. at 540.

22. Id. at 536.

23. Id. at 535.

24. Id. at 540.

25. Id. at 541.