Lincoln responded to a charge of being two-faced by asking, “If I were two faced, would I be wearing this one?” His point is a good one for legal writing as well. Good writing, good communication generally, and legal writing specifically have these characteristics:
1) Before you write, imagine yourself to be the judge. Visualize yourself in her world, with the demands of her day, and her case load. Experience the time pressures. Feel the urgency of making decisions, and moving on to the next matter. Grasp what it is like to manage a large calendar of hundreds of cases day in, and day out. Most importantly, feel the impatience when you are wading through a complex matter that is muddied by sloppy, vague, and disorganized writing. Hear yourself screaming: “What is it they want? Why should I grant it to them?”
2) Accept and submit to the fact that the judge is biased. Everyone is. Some know it, and fight against it. Some do not. To some degree, we must play to the biases. To a conservative, make a conservative argument, and use reasons for how a decision for your client will serve a conservative cause.
3) Communicate what want directly, briefly, and clearly.
4) Communicate what you want immediately, as the first order of business.
5) Load your position up front with a summary of the key evidence supporting your position.
6) Break your case down into digestible parts.
7) Headline where you’re going, literally.
8) Be specific and concrete.
9) State the theme or “story” of the case, and show how this particular request or “call for action” fits within the story theme. [State the theme in “twitter” fashion—limit yourself to 140 words. If you can’t, it may be you don’t really grasp your case’s essential theme.]
10) The best theme focuses on the evil done by the antagonist, and the harm done to the protagonist. It says: “See the injustice done by this villain to this decent plaintiff.” [The defense uses the same idea, but reverses the players.]
11) State the theme at the outset, even before you communicate what you want by this particular request. [Yes, restate the theme in every piece of writing you submit to the court. Repeat the theme consistently from the complaint to the post-trial motions.]
12) Don’t cite long lists of case authorities. Use your time and space with one or two relevant, similar case authorities and show the connections.
13) Keep it simple. The judge is smart, but she is a generalist. Do not assume she understands the complexities and “back story” of the case, either factually or legally. Educate her.
14) Use short, active sentences. Long, passive sentences weaken your case, and convey weakness or lack of confidence in communication. Long sentences often are confusing and ambiguous, and lack “punch.”
15) As you started, so you end: State again what you want and why.
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