By Bob Latham
When I was asked to be on a panel at the International Trademark Association Annual Conference on the subject of legal writing, my first reaction was: “Wasn’t everyone already indoctrinated into the ways of legal writing in law school?” Then I realized that I had identified the problem. In the process of learning how to write like lawyers, lawyers sometimes forget how to write. Thus, I took on the assignment.
Fortunately, there is a significant percentage of foreign lawyers at INTA who may not suffer quite as acutely from this affliction. For the American-trained lawyers, I realized that I could not undo in one session what it took three years to muddy, so I focused on the five most frequent issues I see in legal writing, particularly in the IP litigation area.
1. Beware Your Tone
While the words we select are important, the overall tone of your writing is critical. Your readers will have an intellectual reaction to your words; they will have an emotional reaction to your tone. Which reaction do you think will be the more lasting?
If you are writing to a client, do you want to project confidence or uncertainty? If you are writing a cease and desist letter to an opposing party or counsel, do you want your tone to be one that produces a dialogue or one that raises hostilities? If you are submitting a brief to a court, do you want to come across as knowledgeable and rational or angry and frustrated?
Your tone says a lot about who you are – make sure it is who you want to be.
2. Don’t Be Wedded to the Form File
The form file can be the bane of good legal writing. In state court in Texas, for many years this has been the standard language used for a general denial: “Defendants deny each and every, all and singular, the allegations in Plaintiff’s Original Petition and demand strict proof thereof.” This is not even proper English. Would you write “Defendants deny each and every the allegations?” Of course not. Nevertheless, because this was the way someone did it in the 19th century, a large percentage of Texas attorneys in state court still use this language. There is no magic requiring it. Rather, attorneys do it just because it has always been done.
Too much reliance on the form file can also produce unfortunate results. In cross motions for summary judgment in a patent infringement case I handled not too long ago, the opposing party submitted affidavits from two experts on the issue of infringement. The court noted in denying the opposing party’s motion that the affidavits were identical, which the court found itself raised questions about credibility that could not be resolved on summary judgment. In other words, the attorneys had used the same form for each expert!
By contrast, one of my law partners, Steve Fogle, did not resort to the form file in responding to a motion to transfer a case from Texas to Tennessee, when the movant included this language:
I won’t ever be at ease,
til I feel that Southern breeze,
Steve pointed out that the contract at issue provided that venue for any dispute “will” be in Texas, and filed this response, quoting “Bob Wills Is Still the King” by Waylon Jennings.
You can hear the Grand Ol’ Opry in Nashville, Tennessee
It’s the home of country music, on that we all agree
But when you cross that ol’ Red River that don’t mean a thing
Cause once you’re down in Texas, (“will”) is still the king.
The court denied the motion to transfer. Needless to say, the lyrics to this song were not in Steve’s form file.
3. Just Say It
There is a tendency in lawyers, and newer lawyers in particular, to feel compelled to write in a more formalistic or complicated way than the way in which we speak. There have been numerous times when I was presented with a draft of a brief and asked its drafter: “what are you trying to say here?” The lawyer will then give me a very succinct oral analysis of what they are trying to say. My response is always the same: “then just say it. Just say what you just told me.”
I was highly amused by a decision that Leif Clark, a United States Bankruptcy judge for the Western District of Texas, issued in 2006 when confronted with a motion entitled “Defendant’s Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge.” Really? Do you think that that’s the way the Defendants referred to this motion when they spoke about it in the office? “Hey John, how are you coming on that Defendant’s Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge?” Of course not. They probably called it something in English. In issuing an “Order Denying Motion for Incomprehensibility,” Judge Clark stated that “the court cannot determine the substance, if any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant’s Motion is accordingly denied for being incomprehensible.”
Don’t garble it up. Just say it.
4. Leave Your Darlings on the Cutting Room Floor
This is a line often invoked in teaching aspiring directors in Hollywood. It is easy to fall in love with a line of dialogue in a movie or with a scene. But if it doesn’t further your narrative, if it doesn’t keep things moving in the direction that you have set, you have to be prepared to cut it. You have to be prepared to leave your darlings on the cutting room floor.
The same goes for good legal writing. You may fall in love with a phrase, sentence or passage. But if it gets in the way of your advocacy, or in many instances simply appears too cute or gratuitous, it is counter-productive.
5. Strike the Word “Clearly” From Your Vocabulary
If there is one word that I take out of drafts of briefs more often than any other, it is the word “clearly,” e.g., the movants are “clearly entitled to summary judgment;” or the movants have “clearly failed to carry their burden.” What is so harmful about the word “clearly?” First of all, it sets a standard higher than you need to show. You don’t need to show that you’re “clearly” entitled to summary judgment. You simply have to show that you’re entitled to summary judgment. You don’t have to show that the movants have “clearly” failed to carry their burden; you only need to show that they failed to carry their burden.
Secondly, rarely will a court agree that your position is so “clear;” thus you lose credibility. Someone should some day commission a study as to how often the word “clearly” appears in a judicial opinion as opposed to the number of times it appears in the briefs that led to that opinion. I would suspect that the ratio would be way out of whack.
In fact, the use of superfluous adverbs is often a sign that someone is just writing in a mechanical way rather than giving any thought to what they are writing. I enjoyed the scene in A Few Good Men when Demi Moore’s character in the court-martial proceeding objects to some evidence, only to be overruled. She then states that she “strenuously” objects to the same issue. Kevin Pollak’s character chastises her afterwards saying: “‘I strenuously object?’ Is that how it works? Hmm? ‘Objection.’ ‘Overruled.’ ‘Oh no, no, no. No, I strenuously object.’ ‘Oh, well if you strenuously object, I should take some time to reconsider.’”
These types of throw away words do nothing to further your argument.
The one exception, of course, is if you are faced with a standard of “clear and convincing evidence.” In that case, I will remove my ban on the use of the word “clearly.”
While there are other tips that legal writing gurus I’m sure would advocate, these are the five that seem to crop up most often in my experience. They can all be addressed with a little thought and attention to what you are doing.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.