And yet, these days, it’s surprising how many legal briefs submitted to court are incomprehensible.
Whether it’s non-stop run-on sentences, who instead of whom, paragraphs rife with jargon, or ambiguous vocabulary or idioms, poor legal writing may not lose a case, but it certainly won’t win one.
Furthermore, your firm’s legal writing gives opposing counsel, not to mention the judge, a first glimpse at your lawyer’s capabilities.
“In a typical case, I get one unfiltered view of counsel’s brain: The brief. If the introduction is incomprehensible, then I no longer trust your legal work. If the appellate brief doesn’t mention standard of review, then you’re either inept or don’t know when you’ve strayed beyond your competence; either way, you’ve turned me into a skeptic. If you use long block quotes or the passive voice repeatedly, then you don’t know how to persuade,” comments Herrmann for ATL.
“When my one unfiltered view of your brain suggests that you’re not very good, why should I take it on faith that the rest of your game is actually great? Because you say so?”
With that in mind, let’s look at our first grammar tip of the day.
1. Be specific: Tell vs. Say
Your mother used to respond to your constant please for explanation by “because I said so.”
She could have also said, “Because I told you so.” The difference here, clearly, is that the word “tell” requires a personal direction object. You tell somebody something, or you say something.
In law, it’s important to be specific. More often then not, it will be necessary to narrate a story about who told somebody else something. You wouldn’t leave the audience wondering what a witness said. So why leave judge, jury, and opposing counsel wondering to whom it was said?
2. Use three-syllable words (correctly): Tendentious.
Tendentious: “tending to promote a given viewpoint; biased. The word appears much more commonly in British English than in American English.” For example:
“The Whitehall information code says no press release should contain tendentious or politically biased material” reads a line from David Hencke, “Whitehall Press Officers Sound Off,” Guardian, 17 Oct. 1997, at 4) (excerpt Garner’s Usage Tip of the Day at lawprose.com).
3. Know the basics: That vs. Which
There are some grammar rules that are set in stone: when to use who vs. whom, for example, or affect vs. effect. Another commonly misused pair is that vs. which.
- Republicans oppose new taxes that are unnecessary. (Some taxes might be necessary.)
- Republicans oppose new taxes, which are unnecessary. (None, in their view, would ever be necessary.) –LawProse Lesson #126: “That” vs. “which”
Don’t forget that “that” never takes a comma and “which” is always preceded by a comma.
Well, not really.
In fact, the words “that” and “which” become more complicated when you talk about British vs. American English, ambiguous meaning, or restrictive clauses. However, you can likely avoid confusion by sticking to the simple comma rule above.
To read more about the intricacies that surround these words, see here.
And, for a list of the most commonly misused words, see here.
4. Properly explain technical jargon (or is it technological?)
Two words are frequently mistook one for the other: technical and technological. Patent lawyers, contract lawyers, or litigation lawyers in contentious technical suits pay heed as the distinction is frequently separated by a thin line.
“Technical” is defined as “(1) of or relating to a particular science, art, or handicraft; or (2) of or relating to vocational training.
“Technological,” on the other hand, is defined as “(1) of or relating to the science of practical or industrial arts; or (2) of or relating to innovative gadgetry and computers. ‘Technological’ connotes recent experimental methods and development, whereas “technical” has no such connotation,” according to our experts at lawprose.com.
So, if your firm is dealing with a suit involving advanced machinery or gadgets, like computers or scientific technology, then you’re probably looking for the adverb “technologically.” However, people or professionals that are specialized in skill may have brought “technical” expertise or knowledge.
5. Re-read, re-read, re-read!
Finally, good legal writing takes practice, care, and sometimes training. There’s no short-cut to increasing your vocabulary.
However, one sure-fire way to bad legal writing is lack of care. Most people don’t bother to re-read what they’ve wrote. Or, they are in such a rush, there is no time.
The key too writing is, mostly, catching instances of bad writing. An accidental confusion of “it’s” vs. “its” in a brief is enough to diminish its (and your) credibility.
Don’t forget that good writing isn’t important for legal briefs alone. Learn how to write effective emails, as well, with these tips from C4CM in this training course (with CD).