Effective Writing,
Organizing & Editing
“There is no such thing as good writing.
There is only good rewriting.”
-Justice Brandeis
© Professor Mathis Rutledge
The Prediction
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When you make a prediction, be sure to
include your reasoning
The Prediction
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What side am I on?
Be objective
It’s okay to flip flop during the writing
process, but after editing
Make a Decision/Prediction
Addressing Opposing Arguments
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Brainstorm and make a list
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Could a counter-argument be made based on the
plain meaning of the rule, case comparisons, or
public policy
Look at what parties argued in similar cases
Look at dissenting opinions
If possible, explain how the client can address
the opposing argument
What is your prediction regarding its success
Analogous Cases
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Before describing, set out the rule or point the
case is used to illustrate
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The proximity of the structure to the primary residence is
also a relevant factor. In McIntyre, for example, when
holding that the porch . . .
In the cases in which the courts have held that the plaintiff
consented to the interception, the defendant had told the
plaintiff that all of his or her phone calls would be
intercepted. For example, in Griggs-Ryan v. Smith, the
defendant . . .
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Explain Your Conclusions
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Give a reason to support your conclusions
Don’t make unsupported conclusory
statements
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Explain WHY the factual similarities between the
cases are significant
Roadmaps & Transitions
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A roadmap places things in context for your
reader
Transitions tell the reader where they are, what
to expect, and how the pieces are connected.
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Example: Ms. Johnson can make four arguments.
First, she can argue that . . .Second, Ms. Johnson
can argue that . . .
Effective
Transitions
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Refer to cases, or puts things in context
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In Hughes, the Court found
In the instant case
From the Plaintiff’s perspective
Generic transitions
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Generic transitions link sentences &
paragraphs
Important, but overuse is distracting
Don’t become married to one word
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However
Although
Like
See H-37-38
Sophisticated vs. Unsophisticated
Roadmaps
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Avoid first person pronouns
Focus on the Court as actor
In this memorandum, I (we) will examine three
issues. First, I will look at whether the statute
applies. If I find that it does not, then I will
look at whether the Oregon Wilderness
watchers had an easement. If I find that an
easement was created, then I will examine the
scope of the easement.
Sophisticated Version
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In deciding this case, a court will consider
three issues. First a court will determine
whether the statute applies. If it does not, the
court will then determine whether the Oregon
Wilderness Watchers had an easement. If the
court determines that an easement had been
created, the court will then decide the scope of
the easement.
Organizing the Issues
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Familiar Order - if elements are listed in
logical order (criminal, contract issues)
Threshold Issues – if have an issue that will
be dispositive
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Standing – criminal case; exhaustion of
administrative remedies
Remember factors are flexible standards.
Elements are requirements. The absence o a
factor is usually not dispositive
Effective Sentences, Paragraphs &
Words
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Involves editing
“There is no such thing as good writing.
There is only good rewriting.” -Justice Brandeis
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The best writing uses your own language
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Avoid overuse of quotations
Word Choice
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Should be precise and correct
Beware of shades of meaning
Problem Words
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Regardless is a word. Irregardless is not.
Judgment is preferred spelling in American legal
writing over judgement (used in British writing)
That vs. Which. That refers to necessary
information.
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The clause that you need the most is not punctuated.
Which is used for alternate information that is
nonessential to the sentence’s meaning.
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The clause, which is not essential to the sentence,
disappeared from the eye when it was set off with
commas.
Problem Words
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i.e./e.g. – i.e. is an abbreviation of id est –
“that is,” and is used to indicate an inclusive
list or statement.
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I like literature; i.e., I read everything I can get
my hands on.
Compare with e.g., an abbreviation of
exempli gratia means for example.
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I like literature; e.g., I am reading all of Alice
Walker this month.
Problem Words-Affect/Effect
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Affect – verb: to influence; to cause a
response.
Effect – noun : result or accomplishment; or
as a verb – to cause or bring about – common
use in legal writing
Effects (plural noun): goods or property: The
deceased man’s effects were willed to charity.
Problem Words: Its/It’s
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Its is
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possessive
Mary knew the paper had its faults, but she did not
know how to fix them.
It’s
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is the contraction of “it is” or “it has”
It’s clear to me now how “it’s” become such a
common mistake.
Commonly Confused Words
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Statue
Council
Ensure
It’s
Cite
Principle
Compliment
Tortious
everyday
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Statute
Counsel
Insure/Assure
Its
Site
Principal
Complement
Tortuous/Torturous
every day
See Brian Garner’s Redbook for additional examples
Order ideas logically
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Brainstorm, then group ideas
create pre and post drafting outline
write main ideas in margin in rough draft
Pull out the topic sentence out of every
paragraph, can the reader get the gist of the
memo
Does the order of the question match brief
answer, rule explanation and application?
Headings
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Roadmaps, guide the reader
Satisfy the reader’s needs
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Element One; The Line-up;
The Admissibility of Line-up Identifications
Headings
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Consistency is key
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can’t have A without B; I without II
formatting - sentences, typeface
Should always be independent of text
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Never count on the reader to review the heading to
understand the text
Readability
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Don’t make your paragraphs overwhelming
(too long)
Each paragraph should have a topic sentence
(provides context)
Include transitions
Watch out for extra-long sentences (more than
4 lines) and consider revising
Paragraphs - Length
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Avoid over-using long paragraphs (7-8
sentences)
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8-sentence paragraph is about a full page of type
A full page paragraph will have a negative visual
impact on your reader
Length is ultimately determined by content
Variety in paragraph length will keep your
reader interested
Too many short paragraphs makes writing look
choppy
Watch for Parallel Construction
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When you have info in a series, the
information must be of the same grammatical
type (nouns, adjectives, verbs, etc.)
Ex: The judge excluded the evidence because
she thought it was irrelevant, immaterial, and
bound to be prejudicial.
Better: The judge excluded the evidence,
holding it irrelevant, immaterial and
prejudicial.
Parallel Construction
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Ex: The detective proposed a plan to raid the
drug dealer’s office and arresting all his
workers.
Better: The detective proposed raiding the
drug dealers office and arresting all his
workers.
Sentence Review
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Subject + Verb (& sometimes an object) =
sentence
Thomas researched the law
Subject + verb + object
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Missing subject or verb = fragment
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Short sentences are best
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Too many ideas in one sentence is difficult to
follow
But, too many super short sentences can make
writing seem choppy
Don’t forget your articles
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the, an, a
Omitting articles is a common mistake for
students concerned with verbosity
Especially a problem with English Second
Language students
Leads to choppy, unsophisticated writing –
resembling a police report
Ex: Plaintiff claims that cat turned on him and
scratched him before ambulance arrived.
Check your punctuation
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Comma usage
Semi-colons
Colons
Apostrophes
Punctuation can alter meaning
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http://www.youtube.com/watch?v=gt0T23gQ
MU0&NR=1
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See handout
Dealing with Numbers
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Numbers under 100 must be spelled out
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Exceptions
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Dates, time of day
Addresses
Fractions, decimals, percentages, scores, statistics
Exact amounts of money, identification numbers (serial
numbers)
See Diana Hacker p. 288 or Bluebook Rule 6.2
Cutting the Fat
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Editing
Effective Sentences - Concise
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Don’t worry about conciseness or order in first
draft
Cut the fat during editing process
Four Easy Ways To Cut The Fat
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Avoid nominalizations
Avoid meaningless phrases, lawyer talk and
pompous language
Prefer the active voice
Keep subject, verb and object close together
Nominalizations
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Take a perfectly good verb and turn it into
a noun
Focus on the real action
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The parties reached an agreement on the
settlement terms.
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Real action isn’t reaching, it’s agreed
The parties agreed on the settlement terms.
Nominalizations
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Typical endings: --al; --ment; --ant; --ency; --ion;
Lead to verbosity
 made a statement  stated
 made the assumption  assumed
 determination determined
 Commencement  commence or - begin
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Through justification of the evidence and explanation of the
determination of outrageous and extreme conduct Lamar
satisfies all three elements establishing a prima facie case of
intentional infliction of emotional distress against defendant
Waters.
Meaningless words and phrases
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Beware of “it is _____ that” pattern
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It is essential that  essentially
It is obvious that  obviously
It is conceivable that  conceivably
It may be argued that  arguably
it should be noted that  omit
It is important to note that  omit
Meaningless Words & Phrases
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Does the phrase add anything
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kind of; practically
because of the fact that  because
for the purpose of  to
for the reason that  because
In the case of  in
he was aware of the fact that  he knew
Pompous Language &
Lawyer Talk
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Elucidate  explain
notwithstanding the fact that  although
endeavor  try
supposition  belief; thought
Delete Redundant words
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Includes words implied by other words or
words that simply repeat the meaning of other
words
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first and foremost
true and accurate
basic and fundamental
terrible tragedy
free gift
Prefer the Active Voice
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Use the actor as the subject, not the object
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Subject - noun; object - noun that receives the
action of the verb.
Subject + verb = sentence. Some verbs need
an object
Lawyers [subject] make [verb] arguments
[object] or Lawyers argue.
Prefer the Active Voice
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Find the subject
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Is the subject the actor? Is the subject doing
something. - active voice
Is the subject being acted upon? Does a verb
phrase include a form of “be” --is; was; were; are;
been
A verdict [object/subject] was reached [verb] by
the jury vs. The jury reached a verdict.
Active Voice - why care?
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Because I care
Preferred style in legal writing (most
writing except science)
It is more concise
How evil is the passive voice?
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Sometimes effective, but be ready to
justify your use
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Anytime the actor doesn’t matter or you don’t
want to emphasize the actor or subject (think
criminal defense cases)
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The marshal left the summons; The summons
was left by the marshal.
My client struck his wife with a baseball bat in
self-defense. Or The victim was struck with a
baseball bat in self-defense.
The child was killed while wrestling with Jones.
Or Jones killed the child while wrestling with
him.
Keep the subject & verb close
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Keeps writing concise
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makes writing easier to understand
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the wider the gap between the subject and verb
more likely unnecessary words
large gaps between the subject and verb may
confuse reader
minimizes passive voice
Failure to Keep the Subject, verb &
object closely connected
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Interrupts sentence flow
Leads to confusion & verbosity
The lawyer, who was feeling sick and had not been to
the office in several days, drafted, without the benefit
of the proper statutory material or the pertinent cases,
the memo.
Sick and absent from the office for several days, the
lawyer drafted the memo, even though he did not
have the proper statutory material or the pertinent
cases.
Closing the Gaps
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Flip-flop the sentence. Put the subject & verb
first
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The defendant, in addition to having to pay
punitive damages, may be liable for plaintiff’s
costs and attorneys fees. Or
The defendant may have to pay plaintiff’s costs
and attorney fees in addition to punitive damages.
Closing the Gaps
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Avoid giving long descriptive information
before the main subject and verb
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Given the absence of accurate and effective fines for disciplinary
violations and an incentive on the part of lawyers to maximize
overall gain by engaging in the unethical conduct, a court, faced
with a choice between applying a narrow disciplinary rule such as
the dishonesty rule, will achieve a more efficient result by adopting
the narrower approach.
No accurate and effective fines exist for disciplinary violations,
plus lawyers have an incentive to maximize overall gain by
engaging in the unethical conduct. Thus, a court will achieve a
more efficient result by adopting the narrower approach, even
when faced with a choice between . . .
A court will achieve a more efficient result by adopting the
narrower approach when it is faced with a choice between . . .