I give law students seminars throughout the school year on various topics to sharpen their skills. One day, I was brainstorming ways to make the topic of improving legal writing more interesting and engaging. Let's face it, none of us like boring seminars, even if the information is valuable.
While making coffee in my kitchen one morning, I searched for a metaphor for the writing process. Having been a federal judicial law clerk for five years and a litigator for the four before that, I had extensive experience writing memos, motions, draft orders on motions to dismiss, motions for summary judgments, bankruptcy appeals, and other forms of legal writing. I've taken legal writing courses like Bryan Garner's excellent Advanced Legal Writing Seminar. And I constantly work at honing my writing skills. I've also read more motions, orders, and essay papers from my students in three years as a law professor than I can count. Needless to say, I have some experience with legal writing. So I know how tedious it can be.
The lyrics below came to mind as I sorted through different metaphors. I am an "80s baby" and grew up hearing hip-hop in Brooklyn, New York. The music was everywhere. It was catchy and lyrical and captured the essence of many experiences I had growing up in New York City.
There's a great song I love by Mos Def called "Love" on his album "Black on Both Sides." It samples song lyrics from Eric B. and Rakim's "I Know You Got Soul." They go as follows:
I start to think
and then I sink
Into the paper like I was ink
When I'm writing, I'm trapped in between the line,
I escape when I finish the rhyme.
(Eric B. & Rakim, Track 4 on "Paid in Full").
These particular lyrics are timeless because they describe the writing (and, more broadly, the creative) process we all go through to produce a final product. Let's break down each part of the lyrics and see how it guides us through creating a piece of legal writing.
The Writing Process
Writing involves a process. There is the prewriting stage, where you determine the topic of your writing, do some research and outline. There's the actual writing when you create your first draft. And then there's the revising, editing, and proofreading stage, where you make substantial changes to the draft to create a finished product. As U.S. Supreme Court Justice Louis Brandeis famously said, "There is no great writing, only great rewriting."
Apart from the process itself, though, is time management. Every time you receive a substantial writing project, ask how much (billable or actual) time you can and should spend on it. Based on that estimate, quickly create a time management plan and make sure to leave as much time as possible to edit.
A useful estimate on how much you should spend on each part of the writing process is approximately 40% on prewriting, including the research, deep issue statements, and outlining. The prewriting portion correlates with the lyrics "I start to think." Then spend about 20% of the time on your first draft. Here you start putting actual words to paper, i.e., "sink into the paper," as the song states. The final 40% of the time you edit - this is more than proofreading. It is digging into the words to ensure you captured the right tone, meaning, and structure, i.e., "When I'm writing, I'm trapped in between the line, I escape when I finish the rhyme."
40% - "I Start to Think."
It would be best if you determined the purposes of your writing, the audience you wish to target, and the goal of your writing. For example, do you want to persuade a judge or explain a complicated legal strategy to a client? Your writing will be very different depending on whom you seek to engage. Then, of course, as lawyers, we typically have to do some research. If you are in litigation, some case law research needs to happen, identifying the procedural posture of the cases, what the case law says about the legal issue, and whether the judge on the case has a particular point of view on the facts and law. If you're transactional, you may have to research public records, your client's position, previous dealings with opposing counsel, identify stakeholders, etc.
Once you've finished your research and have your answer (or at least a good idea), resist the urge to immediately jump into the first draft. It is tempting to start writing to "get it over with." Still, that can be a mistake. Bryan Garner, a legal writing expert and editor of Black's Law Dictionary, recommends putting together a "deep issue statement." In his book, The Winning Brief, Garner defines a deep issue statement as "the ultimate, concrete question that a court needs to answer to decide a point your way. … The deep issue is the final question you ask when you can no longer usefully ask the follow-up question, 'And what does that turn on?'" A couple of key tips, do not start the deep issue statement with "whether," as you learned in the law school; it tends to become vague. Also, it does not have to be one sentence; it can be a few sentences, but not more than 75 words. It should flow from law to fact to conclusion in the form of a syllogism (major premise, minor premise, and a conclusion). By creating a deep issue statement, your writing takes on focus and clarity.
Then it would be best if you did a detailed outline. Creating an outline in the prewriting stage is much more efficient than organizing the document as you type the first draft. The major points in the outline should be your headings. The minor points in the outline should be your topic sentences and introductory paragraphs. Once you create the outline, the first draft is a breeze to write.
20% - "Sink into the Paper."
The goal of the first draft is simply to get something onto paper that you can start editing. You won't spend time structuring your first draft if you've done an outline in the prewriting stage. Start at the beginning, and as you fill in the outline with content, do it quickly. Don't worry much about style or grammar in the first draft – just get your ideas onto paper.
The first draft is the least important step in the writing process (surprising for many lawyers and writers to realize, but true). Most lawyers spend too much time on the first draft trying to make it perfect, which takes valuable time away from the editing stage. Just keep writing until you run out of steam. You will feel much more accomplished with words on the screen that are logically organized that only need editing. This process saves you time and allows you to create progress quickly. Thus, if your boss asks for a progress report on your writing or the deadline suddenly gets moved up, it is easy to pivot quickly and demonstrate that you've put in substantial work.
40% Editing -"Get trapped in between the line, escape when you finish the rhyme."
Now that you created the first draft, it is time to revise, edit and proofread. This step works best if you use a system when you edit. Lawyers can use the "The Four-Step Edit" - a system recommended by The Legal Writing Coach Chris Jensen and other legal writing practitioners. With this system, you edit the document four times, moving from the big issues to the smaller, more refined ones. And with each step, you complete the editing more quickly and efficiently because you're looking for only one type of problem.
First, you look only for big structural issues. For example, look for a logical structure in the writing. Ask yourself if it is easy to read and follow, or do you need to add "navigation aids" like lists, headings, transitions, paragraphs, and topic sentences? Does it make sense to structure around "ICRA" (Issue, Conclusion, Rule, Application) or use another version of the classic IRAC writing structure?
Second, see if you can cut words without changing the initial meaning. This process creates a more concise document and is the fastest way to improve your style. Cut the jargon and other sources of "legalese" from your writing. Take out unnecessary words, phrases, and "throat-clearing" terms. For example, many motions start with, "Comes now, Plaintiff, represented by counsel…." These words are formalistic and unnecessary. Start with a simple phrase like, "This motion seeks summary judgment in plaintiff's favor because…." The reader can now understand the point of the motion and get straight to the bases justifying the request.
Third, simplify sentences. The goal is short, direct, positive, subject-verb-object (together and close to the front) sentences. The main characters of each sentence are the subject, and important actions are verbs.
Fourth and finally, you proofread. Here you check for usage errors such as grammar, punctuation, vocabulary, comma usage, etc. If you run out of time, at least check the big, visible parts, such as the cover page, the opening and closing paragraphs, and the headings. Finally, give your writing one last read to catch anything you may have missed. I recommend reviewing it in a new format, i.e., printing it on paper instead of reading it on the screen, reading it backward, or, my favorite method, using the read-aloud function in your word processing app to listen to your writing. These tips will help you catch those minor errors that your eyes tend to gloss over after reading something several times.
This writing process will consistently help you get words on the page quickly. It lets you get your thoughts on paper instead of fretting as you stare at a blank page.
I hope this journey through my musical memory lane has provided useful legal writing tips for you. And make sure to check out the songs I mentioned earlier, they’re definitely worth a listen!
*This article first appeared in Perspective the Federal Bar Association's Young Lawyer's Division Summer 2022 Newsletter and is reprinted with their permission.
Joseline Jean-Louis Hardrick is an associate professor at WMU-Thomas M. Cooley Law School. She teaches Criminal Law and Constitutional Law and assists graduates with bar preparation. She is the founder and director of Diversity Access Pipeline. Inc. This nonprofit organization runs the Journey to Esquire® Scholarship & Leadership Program, blog, and podcast to promote diversity and create access for law students. She is the author of Finding Joy in the Journey to Esquire, A Guide to RENEWAL for Lawyers and Law Students, Bar Exam BEAST MODE — Maximize Your Mindset to Beat the Bar! and several children's books celebrating diversity and encouraging mindfulness in children.
These posts were proofread by Grammarly
Joseline J. Hardrick is the Founder and President of Diversity Access Pipeline, Inc. She is also an author, professor, and lawyer and resides in Tampa Bay, Florida. Guest bloggers are students in the Journey to Esquire® Scholarship & Leadership Program.