Drafting pleadings is both art and science. The science considers the legal proofs necessary to sustain the desired outcome of the pleading. The art is the method of conveying the information persuasively. This article focuses on the persuasive aspects of drafting but don’t forget the science of the pleading. Consider the following when starting a drafting project:
What relief am I seeking? What am I asking the Judge to do for my client?
What is my authority? (statute or rule authorizing relief)
What facts do I need to allege to support my relief?
What is my legal standard of proof? What do I need to ultimately prove?
What statutory or local rule drafting requirement must I comply with (e.g. do I need to attach an affidavit?)
Start by preparing an outline of the pleading considering these questions. Do any necessary research. Have any reference materials printed out or up on the screen. And then start writing considering your reader.
Who are you trying to influence?
Who is your reader? Is the reader the judge or judges who will resolve the motion? Usually this is the case, but not always. Sometimes the reader is the opposing party, whose attention you are soliciting. Determine at the outset who you are trying to influence and write to that person. And define your intent before approaching the keyboard. What is the purpose of the motion you are filing? Are you looking to inform, persuade, or inspire the reader? Your tone will be different depending on your intent.
General tips for writing well.
There are certain attributes of all effective writing, whether legal or otherwise. The goal is to present your message in a simple, clear, and elegant manner. In order to do that consider the following:
1.) Keep your sentences short and varied. Writing Guru Paula LaRocque suggests keeping sentences under 20 words. Long rambling sentences will lose the reader. But add variety. If you choose to use a longer sentence, follow or precede it with shorter sentences.
2.) Stay away from the legalese. Avoid boilerplate legalese. A Judge’s eyes will likely skip over it. Think of novel ways to rephrase abstract legalese. Follow the lead of other great communicators like Lincoln and Churchill: use smaller Anglo Saxon words rather than longer Latinate words to convey the message. Get rid of the “wherefores,” etc.
3.) Use an active tense rather than a passive tense (but not always). Lawyers have an inexplicable tendency toward the passive; fight it. Active tense shines the light on the subject, where the focus should be. “John refused to return Jane’s rings” is active tense. Sentences written in this tense feel more transparent and credible. But if one is looking to remove attention from John, consider a passive tense. “The rings were not returned by John.” Use of the passive tense here softens John’s guilt. Make persuasive choices, don’t just pile words onto the page.
4.) Beware of “nounitis.” Nounitis is another lawyerly habit that relies on abstract nouns in lieu of compelling verbs. It makes the writing showy and thick. Often abstract nouns can be found in words ending with the letters “ion” (initiation, inclination, intention). These Latinate words are often favorites of lawyers but they are dull and lifeless. Try and draw a picture of an “initiation.” You can’t. Replace these soulless nouns with interesting action verbs that breathe life into the writing. What reads better? “It was John and Sally’s intention to work out an agreement,” or “John and Sally hoped to resolve their differences.
5.) Make it concrete. Consider the following: “John is a high wage earner” versus “John earns $700,000 per year, over twice the salary of Chief Justice John Roberts.” Anytime one ties an idea to a concrete image that resonates with the reader, the message will be stickier and more persuasive. Incorporate helpful concrete images to support your motion and your case.
6.) Use stories and metaphors. In her book on using metaphors to “sell, persuade, and explain anything to anyone,” Anne Miller reminds us that “metaphors, [are] visual words that conjure an image in the listeners mind and unleash a torrent of associations.” She references Lees Iacocca’s deft use of the language, opting for the term “safety net” rather than the term “bail out” when seeking relief from Congress on behalf of Chrysler Corporation. Words matter and the images they conjure up move your reader. In particular, when trying to convey complex concepts, consider using a metaphor to help the reader understand. In choosing metaphors, point to everyday things or common events that the reader will relate to.
7.) Avoid ad hominem attacks. Remain dignified and focused on legal issues rather than the personalities involved. And avoid adverbs and adjectives. You want the righteous anger to belong to the judge, and you appeal to that by effectively reciting the facts rather than name calling. If your client is the punisher, the Judge won’t need to be. And by all means, avoid the snarky editorial comments.
8.) K.I.S.S. Keep it simple, stupid. Get to the point. Avoid unnecessary digressions. Stay focused and remember your intention—to persuade or inform.
How does it look?
Consider using a preface or introduction summarizing the pleading. A brief introduction helps focus a busy judge on the outcome you are seeking.
What font are you using? I have a personal bias against the Courier font, which looks like a typewriter. I have a knee jerk bias against everything I read in that font. And so do many judges. Avoid it. My firm uses Times New Roman for pleadings and other fonts for other things (emails, letters, etc.). Conform your margins and maintain consistency throughout the document.
Use headings or captions to help focus the reader. If several paragraphs address a unified topic, summarize the topic in a bolded heading above the line. This will help focus the reader. For example, John’s efforts at becoming reemployed:
Since August, John has applied for 14 different positions.
John has personally been interviewed on six separate occasions.
John has engaged two separate headhunters to solicit job offers on his behalf.
Purchase a book entitled “Typography for Lawyers,” by Matthew Butterick. This reference helps lawyers design attractive and readable documents. Every law office should have a copy as a reference. Brilliant writing gets lost with a sloppy and amateurish layout.
I have been a devotee of Bryan Garner for over a decade. He is a foremost authority on legal writing. His many books offer insights for superior writing. He also offers courses on legal writing. A good investment!
I have benefited from an online writing course sponsored by Udemy, “Writing With Impact” Writing That Persuades” taught by the magnificent Clare Lynch. Ms. Lynch is a professor at Cambridge and also a professional business writer. Her classes are engaging and entertaining. I strongly recommend this course.