How to improve writing???

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Re: How to improve writing???

Postby Anonymous User » Thu Dec 21, 2017 6:31 am

I think most of this thread misses the point. The least important part of legal writing is the ‘writing’. Stylistically, you need to be merely serviceable. The tight prose of John McPhee or EB White: not necessary.

Rather, focus on the ‘legal’. Most bad legal writing is caused by people who don’t fully understand the legal issue. I spend most of my time writing by not-writing. Through outline, short paragraphs that I email to myself, or mostly just THINKING, I refine my argument and understanding of how the law should work (in our side’s view of the world). Then I write. Even with that prep, the first draft sucks. Wash, rinse, repeat. Hopefully better the second time. At least my analysis is better organized for the second attempt.

There’s additional decorations you add as you get more experienced. You might start to get a feel for arguments that appeal to your particular judge; you’ll learn shorthand ways to incorporate building blocks of your analysis that are common knowledge. But mostly, become utterly fluent in your argument, and the writing will take care of itself.

FWIW, I’m an eighth year.

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Re: How to improve writing???

Postby AVBucks4239 » Thu Dec 21, 2017 11:18 am

One thing I would recommend is to constantly expose yourself to great writing. I read The Atlantic, The New Yorker, The New York Times, National Review, etc., because it's usually all very good writing. Sometimes I re-read entire articles just to determine why the writer discussed something *here* instead of *there.* I feel like I've learned through osmosis by reading these publications for years.

Similarly, I have all 6th Circuit decisions regarding a couple niche practice areas automatically emailed to me on a weekly basis. Regardless of politics, almost all of the circuit judges are great legal writers, and I think their analytical approach becomes ingrained in you eventually.

I've also read most of Scalia's books, as well as Bryan Garner's books. I think they have some great rules about brevity, logic, etc., that helps for good legal writing.

As for tips you can apply immediately, honestly, the CREAC method is great. I always defer to the fact that people's default (including my own) is to be lazy, and you want to serve your conclusion to your reader on a platter.

If you're drafting a legal memo, start with "Issue Presented," and then immediately thereafter discuss "Summary of Conclusion," and *then* do the legal analysis.

Similarly, if you're doing a brief/motion, beat the reader over the head by starting with your conclusion and repeating it throughout. But before you even get to writing, outline the hell out of your brief. What are the issues? Is there any threshold issue that should be briefly discussed and set aside? Where is the focus? What you don't want to do is (a) skip issues and take for granted that the judge will discuss it anyway; or (b) beat the death out of things that are obvious.

To discuss an example, I just wrapped up a motion for summary judgment yesterday. Basic facts: company sued my client's company and my client personally. We are filing an MSJ to get my client dismissed personally. The key issue is obviously whether the plaintiff can "pierce" the corporate veil. This seems straightforward enough, but my brief is outlined with headings to the point that I'm confident the judge can just read the headings and grant my motion. The outline is basically this.

I. Introduction -- State my conclusion and the reasons why

II. Statement of Facts

III. Law and Argument

A. Summary Judgment Standard

B. This Appellate Court Applies the Veil Piercing Doctrine to Limited Liability Companies

The corporate veil doctrine applies to limited liability companies. Here's what you (court) said about that. Thus, despite this case involving an LLC rather than a corporation, the "piercing" doctrine applies.

C. To Pierce the LLC Veil, Plaintiff Must Prove Defendant Committed Fraud, an Illegal Act, or Unlawful Conduct.

Start with conclusion, discuss three part test of piercing, state the obvious--the second prong (fraud, illegal act, unlawful conduct) is the issue.

D. There is No Genuine Issue of Material Fact--Not Even an Allegation--That Defendant Committed Fraud, an Illegal Act, or Unlawful Conduct, and Dismissal of Defendant is Therefore Appropriate

Here, apply the rules from Part C, which leads to my obvious conclusion. To the extent Plaintiff may argue X, here's why that sucks.

Subheading D here is perhaps unnecessary, but figured I'd give a break to the reader and start a new heading.

This is obviously a simple example, and I've written much more complicated briefs/motions/pleadings, but this is the gist--don't assume anything (don't make the judge think, "Does piercing doctrine apply to LLCs?"--say it for him/her); start with threshold issues; get the meat of the issues as soon as you can; try to think about where opposing counsel will attack your arguments.

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