Thursday, September 18, 2014
 

Ten Tips for Success on Legal Research and Writing Assignments

small_6263897021Legal Research and Writing courses are unlike any writing most first-year law students ever experienced as undergraduates. “[L]egal writing classes often give students their first glimpse into how the United States legal system works, the hierarchy of United States courts, and the differences between mandatory and persuasive authority.” Miriam E. Felsenburg & Laura P. Graham, Beginning Legal Writers in Their Own Words: Why the First Weeks of Legal Writing Are So Tough and What We Can Do About It, 16 Legal Writing: J. Legal Writing Inst. 223, 224 (2010). This flood of new information, accompanied by new stylistic requirements and seemingly arbitrary and unintelligible rules beginning with B and R can be overwhelming for the first few weeks of law school.

Sadly, there is no magic secret to doing well on legal writing assignments. Legal writing is a skill that can benefit from effective coaching but, in the end, comes down to practice and repetition.  Hopefully, the tips that follow can help you avoid some of the major obstacles encountered by new legal writers.


I. Start Early

This is the most obvious yet most often ignored piece of advice given.  Giving yourself the largest amount of time possible makes the entire process less stressful and allows for adequate proofing and revising. Especially when you are new to legal research and citation, giving yourself the extra time to Shepardize or Key Cite and check citation form can make the difference between a C and an A.

II. Distill the Concepts Down to the Simplest Components

The best writing is capable of conveying even the most complex issues in a simple, easy to understand way.  Try to state concepts as simply as possible while still communicating the necessary information. Remember that legal writing is about communicating with a “practitioner who will ultimately use [your] writing to make important decisions.” Felsenburg, supra, at 291. Not every lawyer or judge will be an expert on the particular area of law you are writing about. You need to educate them and convince them of the merits of your case. Think of your “legal writing professor [as] simply a stand-in for the legal reader.” Id.

A good question to ask yourself when writing is whether a lay person would be able to follow your arguments. Someone who knows nothing about the law, probably won’t understand every nuance of the legal doctrine discussed, but they should be able to follow the argument through to the conclusion.

But: Do not insult the reader. Do not over explain or state the obvious.

Example: “A criminal defendant is innocent until proven guilty.”
Example: “Cases must be decided on the basis of their individual facts.”

Statements like these not only irritate the reader but add unnecessary bulk to your writing.

III. Avoid Lawyerisms

Legalese is epidemic among new legal writers.  Every pop-culture reference to attorneys instills the idea that legal writing is complicated, verbose, and obfuscatory. Good legal writing, however, is clear, simple, and written in plain English. The plain English movement began in the 1970s and is now the heart of every LRW course’s curriculum. See Richard C. Wydick, Plain English for Lawyers 4 (5th ed. 2006) (Amazon Link). Richard Wydick defines lawyerisms as words “that give writing a legal smell, but . . . carry little or no legal substance.” Wydick, supra, at 58.

Examples of Lawyersisms to avoid:

  • aforementioned
  • whereas
  • res gestae
  • hereinafter
  • arguendo
  • said (as an adjective)
  • aforesaid
  • beseech
  • inter alia

There is almost always a plain English alternative to a lawyerism. Deborah E. Bouchoux provides a nice guide to eliminating lawyerisms in the Aspen Handbook for Legal Writing: A Practical Reference (Amazon Link) and UCLA Professor Eugene Volokh maintains a great list of cures at Eschew, Evade, and/or Eradicate Legalese.

IV. “Murder Your Darlings”

“Whenever you feel an impulse to perpetrate a piece of exceptionally fine writing, obey it—whole-heartedly—and delete it before sending your manuscript to press. Murder your darlings.” – Sir Arthur Quiller-Couch (1914).

Also known as the Stephen King rule and typically associated with creative writing, this general rule suggests cutting ten percent out of your first draft when making your first round of revisions. This rule is equally as applicable to legal writing, especially if you are a law student up against a tight word limit on a legal writing assignment.

Setting a somewhat arbitrary goal of cutting ten percent is a great way to force yourself to catch passive voice, legalese, verbose language, and redundant language.  Following this rule results in more clear, concise, and polished prose.

V. Proofread!

This is another obvious but ignored piece of advice and it goes hand-in-hand with number one above.  Be sure to set enough time aside before the deadline to read through your document.

Developing a custom checklist can help you revise in a systematic way that eliminates as many errors as possible. Below are a few sample checklists:

VI. Avoid Over Use of Acronyms

In an effort to save space and be concise it is easy to fall into the trap of over using acronyms. By all means shorten lengthy party names or titles but, put some thought into the short form you choose. Will the reader know what you are discussing three pages later, or will she need to refer back to decipher it?

Bad Example: “The Appellate Division held that the 2005 Comprehensive Black Bear Management Policy (CBBMP) . . . .”

Better Example: “The Appellate Division held that the 2005 Comprehensive Black Bear Management Policy (“Bear Management Policy”) . . . .”

In the first example, the reader will probably have to flip back to the page where you defined the term to refresh her memory, while the second example provides enough information to keep the reader moving forward.

VII. Identify Parties with Specific Descriptors

Professors Volokh and Tanford refer to this common problem as the “fear of calling things by their names.” Eugene Volokh & J. Alexander Tanford, How to Write Good Legal Stuff 2 (2009).  Use terms that place the parties into context, or just use names.  Try to avoid calling everyone Plaintiff or Defendant. Doing so can make your writing very dull and confusing, particularly if you are discussing multiple cases in close proximity to each other.

VIII. Try not to Over-Sell your Case with Adverbs

It can be tempting to argue that your case clearly satisfies a legal test or that the court will obviously decide in your favor, but doing so can irritate your reader and add unnecessary bulk to your writing. The adverb adds nothing of legal significance and can make your writing come across as desperate or sound as if you are attempting to over compensate for a weak case.

IX. Avoid Beginning Every Sentence with “In [Case Name], . . .”

This pattern is easy to fall into when you are new to legal analysis.  There are several problems with this sentence structure that make it very undesirable. First, it gets monotonous very quickly; second, it requires using an embedded citation that makes writing harder to read; and finally, it wastes an incredible amount of space.

Bad Example: In New Jersey Animal Rights Alliance v. New Jersey Department of Environmental Protection, 396 N.J. Super. 358 (App. Div. 2007), the Appellate Division held that the 2005 Comprehensive Black Bear Management Policy (“Bear Management Policy”) satisfied this factor because “the policies it laid out for management of black bears applied to all areas where black bears were present and generally addressed contact with the bears.”  Id. at 368.

Better Example: The 2005 Comprehensive Black Bear Management Policy (“Bear Management Policy”) satisfied this factor because “the policies it laid out for management of black bears applied to all areas where black bears were present and generally addressed contact with the bears.”  N.J. Animal Rights Alliance v. N.J. Dep’t of Envtl. Prot., 396 N.J. Super. 358, 368 (App. Div. 2007).

By getting straight to the point, the second example saves space and improves readability.

X. Take Note of Good Legal Writing when Reading

When you are reading for classes, pay attention to the writing in your casebooks. Once you begin to pay attention, you will notice a lot of horrifically bad legal writing, but also some very good writing. By actively analyzing the legal writing of the many judges and professors you will encounter, you will begin to get a feel for the tone, sentence structure, and word choice of great legal writing.


photo credit: thebarrowboy via photopin cc

 

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