Powerful legal communication

"Words are, of course, the most powerful drug used by mankind."

-Rudyard Kipling

Abraham Lincoln famously said, "A lawyer's time and advice are his stock in trade." He could just as easily have added that words are a lawyer's stock in trade. Law is all about words: the interpretation of a statute or contract, the persuasion of a jury or an appellate court, and the questioning of a witness are just a few examples of how words are used in the legal profession. As one appellate justice wrote, "In courts at all levels our business is handling words." Words can have a profound effect on the memory and recall of witnesses. But far too many lawyers do not spend enough time and consideration in determining which words they will use.

Consider this example of the use of words: Who will ever forget Franklin D. Roosevelt's stirring speech the day after Pearl Harbor was bombed: "Yesterday, December 7, 1941 - a date which will live in infamy - the United States was suddenly and deliberately attacked by the naval and air forces of the Empire of Japan." Would we remember his words if he had simply said, "Yesterday, the Japanese attacked Pearl Harbor"? And would Martin Luther King, Jr.'s "I have a dream" speech be as memorable and forceful if he had not used those four little words?

The importance of words in the legal profession was emphasized to an incoming class at Indiana law school:

"The words of a lawyer, spoken or written, must be clear, precise, organized and, above all, literate. Lawyers are judged, daily, on the quality of words they string and lean together. As a lawyer, you must tell, persuade, and fix, and you must do it all with words. So, too, you will be called to inspire, soothe, or heal, all on the instant and all with words.

Think, too, how unforgiving that world will be. Every word - every single word - lawyers say in court, in depositions, and elsewhere is taken down. And once there, it is forever public. Without good and proper words, even the best case or cause will fail, and even the most deserving person will go unaided. Clients won't pay for sloppy words, and neither will law firms. Mistakes, once done, will not be forgiven."

Clarity and Brevity

Lawyers tend to be verbose in trying to make a point when brevity would be more effective. Brevity and power words make the presentation that much stronger. In one study of federal appellate justices commenting on the quality and effectiveness of briefs, it was concluded that "[w]hat judges really want is shorter, harder hitting briefs." (Kristen K. Roberts, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 J. Legal Writing Institute 257 (2002).)

Judge Richard A. Posner once scolded the parties to an appeal where the briefs totaled 250 pages, 31 of which consisted of the district court's opinion; the other 219 pages were for the parties' arguments. Wrote Posner: "There is no justification for such verbosity. These two consolidated cases are simple and straightforward. Our opinion is seven pages long, and while such compression is not to be expected of the parties, they should have needed, and used, no more than 100 pages at the most to present their claims fully." (Pinno v. Wachtendorf (7th Cir. 2017) 845 F.3d 328, 331-332.)

One of the greatest examples of oratory in modern times is Lincoln's famous Gettysburg address. It is a model of clarity, brevity, and impact. The Gettysburg Address summarized the Civil War in 10 sentences and 272 words, 206 of which were only one syllable long. According to one writer, Lincoln's years of practicing law "taught him the intertwined qualities of clarity and brevity. He used clear, simple language when arguing a case before a jury. He avoided technical language, but instead used a conversational tone. Lincoln did not waste his arguments. He saved his words, and used just the necessary number of those words, for the most essential matters." (Julie Oseid, The Power of Brevity, 2 St. Thomas Lawyer (Summer 2009).)

Roosevelt's "day of infamy" speech lasted just six and a half minutes. Against the advice of his Secretary of State, Cordell Hull, Roosevelt kept the speech short in the belief that it would have a more dramatic effect - and history has proven he was correct. (Robert J. Brown, Manipulating the Ether: The Power of Broadcast Radio in Thirties America 117-120 (McFarland & Co. 1998).) Lincoln's Gettysburg address was all of two minutes long.

Writing Tips

Who is your audience and what is the purpose of your writing? Different styles and words should be used for different purposes. The writing of an objective legal memorandum for in-house use (predictive writing) is considerably different than letters to the client or a demand letter to the opposition (legal correspondence) which is different from motions and appeals (persuasive writing).

Write in plain English as much as possible. As the late, great United States Supreme Court Justice Ruth Bader Ginsburg said: "Any profession has its jargon. . . . I can't bear it. I don't even like legal Latin. If you can say it in plain English, you should." Judge Posner is also an advocate of writing in simple English, stating that "legalese is very rarely necessary." Thus, you should avoid legal jargon unless it is a term of art. If you're using your vast vocabulary to impress your client, be aware that your client will be much more impressed by the results you obtain than your use of $10 words.

Many lawyers do not understand the importance of editing, rewriting, and proofreading their work. Seasoned writers know that writing is easy; rewriting is a bear but necessary to produce the best writing possible. As Hemingway said, "The first draft of anything is shit." Edit, rewrite, then re-edit again. And before you send out a document to the court, the opposition, or the client, print out a hard copy and proofread that. Have someone you know and respect read the document. Does your writing flow? There are websites that will read your copy aloud so that you can catch mistakes and see if your writing flows.

This is the fourth article in a week-long series of columns that offer tips on how attorneys can improve their legal writing skills.