GREAT WRITING: Winning comes before writing in the dictionary, but not in litigation.

 

The written word lays the groundwork for any courtroom victory. Because of that, every Fisch Sigler lawyer is a student of great writing. Here, our team members share some of their favorite insights.

 
 
Kate Ryland on writing with the goal of connecting, not impressing
 

Ever find yourself stuck listening to a self-absorbed person? It can be painful, right? They’re so concerned with themselves that they ignore the needs of others in the conversation. You often encounter the same personality when reading legal writing — some writers work so hard trying to impress that they forget the goal is to connect with the reader. Just like the self-absorbed talker, the self-absorbed writer ends up dismissed, ignored, and reviled — ironic, to be sure. If you achieve your goal of connecting, you’ll impress as a by-product. And one of the best ways to connect is using simple words, like near, in place of more complex words, like in close proximity.
 
Meet Kate
 
 
Silvia Jordan on avoiding long sentences
 

Each word of a sentence adds to the sentence’s mass. When that mass grows too large, it interferes with the idea’s readability and interest, ultimately undermining its persuasiveness. So how big is too big? I’ve long used a 20 word-limit. This doesn’t mean every sentence should be 20 words, but rather that no sentence should exceed 20 words. While 20 may appear arbitrary, it’s not — readability experts’ testing produced this number. So leave 21 for card games, as 20 or below is the magic number for brief writing.
 
Meet Silvia
 
 
Bill Sigler on avoiding the looooong wind-up
 

Don’t bury the lede. As a former journalist and current lawyer, I can tell you that this tenet applies equally to legal writing. Judges and clerks deal with dozens of cases and multitudes of submissions each day. So when your brief flashes before their eyes, you better make sure you tell them why you should win, and quickly. If you do so, you’ll distinguish your brief as among the rarified few that doesn’t begin with the all-too-typical unnecessary background, repetitive introductions, and other throat-clearing.
 
Meet Bill
 
 
Avi Toltzis on ruthlessly self-editing
 

In addition to being a student of legal writing, I’m also an aficionado of 1930s British photography. That art was still young then, and, of course, photographers couldn’t use computers to enhance a photo. But the greatest photographic artists of that era committed to a ferocious form of self-editing, even before taking a single shot. The best obsessed over every detail to create a perfect picture that looked and felt natural. Great legal writers know the same lesson — greatness can’t be achieved without ruthless self-editing. So before you submit a brief, letter, or memorandum, be your own most ferocious editor.
 
Meet Avi
 
 
 
Jeff Saltman on the answer to Hamlet’s question: it’s not "to be" — Use active verbs instead
 

Every story needs not only characters, but also action. Verbs provide that action. They make the story go. "To be" verbs, though, lack action; they feel almost inert. Thus, treat is, am, was, were, will be, have been, and so on as a last resort. Try identifying each "to be" verb in your draft, and replace it with a stronger verb. The English language offers an almost never-ending supply of such verbs. So use them, and swap inaction for action.
 
Meet Jeff
 
 
Alyssa Ruderman on staying active, not passive
 

Great legal writing tells a story. To do that, you need to say who did what. And naturally, if you’re recapping the actors’ actions, you should strive to maintain the active voice throughout your writing. Using the active voice also saves words and follows the actor-verb-object order we all learned in grade school. The passive voice causes the opposite effects, rendering sentences longer and murkier. So use the active voice, unless you’re in one of the rare situations where the passive is needed, e.g., when the actor is unknown.
 
Meet Alyssa
 
 
Ken Fung on a little word that causes big bloat
 

It’s hard to believe that a simple, two-letter word like "of" can bloat your writing. But it’s true. For instance, you may see a brief refer to "the Chief Engineer of the Mobile Division of the Defendant." But I can communicate the same information in four fewer words: "the Defendant’s Mobile Division’s Chief Engineer." Bloat is an enemy of interesting story telling. Editing out "of" and other unnecessary prepositions is a useful tool for polishing your writing into its most interesting and precise form.
 
Meet Ken
 
 
Matt Benner on starting sentences with "and" and "but"
 

At some point in our lives, we were told that you can’t start a sentence with "and" or "but." Well, whoever told us that was wrong. You should begin anywhere from one fifth to one third of your sentences with these short, snappy connectors, along with others such as "so" and "hence." These handy words allow you to better link each sentence to the directly preceding and subsequent sentences, and thus help you lay a smooth path for the reader to follow.
 
Meet Matt
 
 
 
Richard Zhang on eliminating heavy connectors
 

Strong persuasive writing requires helpful transitions to guide the reader. But too often, long, heavy, and difficult transitional words and phrases dominate legal writing: notwithstanding the fact that, inasmuch as, and subsequently, to name a few. You can better serve your reader by casting these heavy connectors aside in favor of lighter words and phrases that convey the same meaning. So, notwithstanding the fact that becomes although, inasmuch as becomes since, and subsequently becomes later.
 
Meet Richard
 
 
Avi Toltzis on maintaining the flow from paragraph to paragraph
 

Winston Churchill proclaimed that "paragraphs must fit onto one another like the automatic couplings of railway carriages." This is so true, particularly in legal writing. As with sentences, every paragraph should connect with the immediately preceding paragraph. That’s how you build on ideas, and ultimately achieve clarity and impetus. And the key to reaching this objective is the bridge sentence starting each paragraph, which may point to a concept in the prior paragraph, emphasize it, or expressly connect it to what comes next. Deserve victory, and link your paragraphs.
 
Meet Avi
 
 
Silvia Jordan on the always-tasty "However Sandwich"
 

When I want to begin a sentence by contradicting the last sentence, I don’t start with "however." The connector "however" is a strong one — so strong that it often jars the reader. Instead, I sandwich "however" within sentences and use the smoother "but" transition when I want to begin a sentence by refuting the last sentence. So, for example: "New York City has many nicknames. Native New Yorkers, however, seldom refer to the city as The Big Apple." This sandwiching technique makes for a palatable brief in a New York Minute.
 
Meet Silvia
 
 
Joe Edell on using a single space, not two, after a period
 

The manual typewriter ushered in an entirely new way of doing business over a century ago. And with it came new products like inked ribbons and liquid paper, and new ideas like using two spaces after a period. The typewriter has since vanished from desktops and inked ribbons and liquid paper ceased being an office necessity around the Reagan Administration. But two spaces lived on, in large measure out of habit in the transition to word processing. Habit is no reason to maintain this relic of 100-year-old technology. One space is simpler, cleaner, and shorter, which, as every judge will tell you, is always better.
 
Meet Joe
 
 
 
John Battaglia on skipping the snippets
 

Skipping the Snippets isn’t a Dr. Seuss title, but it is a principle of great legal writing. Snippets are those short sound bites of testimony or law, which are about as common in bad brief writing as Who’s in Whoville. They may look great on the surface, and many writers play them up as dispositive. But they offer little comfort to the reader. If a quote supports your argument and carries enough import to include, then introduce the context (including who you’re quoting) and explain why it supports your position. If you can’t explain it, or if it falls flat once you do, then it’s not worth including. Will this approach succeed? Yes, it will, indeed! (98 and ¾ percent guaranteed.)
 
Meet John
 
 
Ken Fung on enhancing your position by eliminating "clearly" and "obviously"
 

As a mathematician, I know that showing my work is the optimal way to prove that I’m right. The same holds true for brief writing — show your work. Bullying the reader into reaching a conclusion by using words like "clearly" and "obviously" is no way to persuade. Instead, let your reader draw their own conclusion that your point is clear and obvious. So leave "clearly," "obviously," and their "ly"-word brethren behind in favor of sharing the law and evidence proving you’re right.
 
Meet Ken
 
 
Matt Benner on avoiding substantive footnotes
 

You see it in survey-after-survey of judges, I didn’t enjoy them during my time as a judicial law clerk, and you’re starting to see specific mention of it in some standing orders: judges dislike substantive footnotes. This is understandable. Substantive footnotes are distracting, or, even worse, an attempt to circumvent page limitations — neither of which ingratiates a brief to its primary audience. If an argument is important enough to express in your brief, then put it in the body. If it’s not, then remove it altogether.
 
Meet Matt
 
 
Kate Ryland on eliminating "gratuitous" quotations
 

Great legal writing avoids even the risk of ambiguity. Actual quotations from the law and evidence help reduce ambiguity. But during my time in chambers, I read plenty of briefs that employed a technique that invited ambiguity — using quotation marks for non-quotations, such as in describing the other side’s arguments. Was the author trying to express sarcasm? Importance? Disbelief? Informality? All of these? None of these? Serve your reader by avoiding the ambiguous signal of quotations and instead use words to specifically express your ideas and supporting data.
 
Meet Kate
 
 
 
Bill Sigler on learning from the Declaration of Independence
 

The Declaration of Independence is perhaps western civilization’s most significant document. It marked a sea change in human history. But one element of the Declaration is often overlooked: the simplicity of its exposition. It avoids jargon and uses less-common words only out of necessity to communicate specific points. Thus, this great document’s power lies not just in its ideas, but in its accessibility. In the end, it connects and teaches. Great legal writing follows this wonderful example, rejecting jargon and resorting to more-complex language only where absolutely necessary. Anything less than this distracts at best, and signals a deliberate attempt to obfuscate at worst. We can hold this thruth to be self-evident, then: not all words are created equal, so use the right ones for the job.
 
Meet Bill
 
 
Kate Ryland on speaking a sentence to test its readability
 

Hands and eyes provide the lead oars for brief writing. But when writing progresses into crafting, our mouth and ears become invaluable tools. Our writing is at its best when it’s conversational and direct enough to be said out loud. So, when I want to test a sentence’s story-telling power, I say it out loud. If it doesn’t sound like something I would naturally speak, I edit it until it becomes something that does.
 
Meet Kate
 
 
Alan Fisch on taking the high road
 

Litigation is a race for credibility. Generation after generation of great trial lawyers have passed down this time-honored maxim. And one sure way to lose credibility is by resorting to bombast and personal attacks. Such statements demean you, not your targets. And judges repeatedly express their fatigue with this type of writing, and for good reason — it’s distracting and unhelpful in determining how to apply the law to the facts. Leave the bombast and personal attacks out, keep to the high road — no one has ever gotten lost on it.
 
Meet Alan