Legal Writing in Plain English, Second Edition

A Text with Exercises

Bryan A. Garner

• Editore: University of Chicago Press
• Anno: 2013
• ISBN:
  9780226031392
• Argomento: Law
• Categoria: Law Theory & Practice

Admirably clear, concise, down-to-earth, and powerful—all too often, legal writing embodies none of these qualities. Its reputation for obscurity and needless legalese is widespread. Since 2001 Bryan A. Garner's Legal Writing in Plain English has helped address this problem by providing lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. Now the leading guide to clear writing in the field, this indispensable volume encourages legal writers to challenge conventions and offers valuable insights into the writing process that will appeal to other professionals: how to organize ideas, create and refine prose, and improve editing skills.
Accessible and witty, Legal Writing in Plain English draws on real-life writing samples that Garner has gathered through decades of teaching experience. Trenchant advice covers all types of legal materials, from analytical and persuasive writing to legal drafting, and the book's principles are reinforced by sets of basic, intermediate, and advanced exercises in each section.
In this new edition, Garner preserves the successful structure of the original while adjusting the content to make it even more classroom-friendly. He includes case examples from the past decade and addresses the widespread use of legal documents in electronic formats. His book remains the standard guide for producing the jargon-free language that clients demand and courts reward.

PART ONE

Principles for All Legal Writing

There are many types of legal writing—demand letters, opinion letters, research memos, motions, briefs, judicial opinions, contracts, statutes, and ordinances, to name just a few. Although each type presents a unique challenge, they all have some things in common. That is, certain principles of good writing apply to the whole gamut. These 20 principles make up Part One, which is divided into three subparts:

• Framing Your Thoughts

• Phrasing Your Sentences

• Choosing Your Words

Whatever the document, you’ll be doing those three things. The 20 tips that follow should help you do them better.

1

Framing Your Thoughts

§ 1. Have something to say—and think it through.

What’s your biggest challenge as a writer? It’s figuring out, from the mass of possibilities, exactly what your points are—and then stating them coherently, with adequate reasoning and support.

Although this advice might seem obvious, legal writers constantly ignore it. The result is a mushy, aimless style. Even with your point well in mind, if you take too long to reach it, you might as well have no point at all. Only readers with a high incentive to understand you will labor to grasp your meaning.

That’s where law school comes in. Every law student must read and digest scads of diffuse writing. You read through old cases that take forever to convey fairly straightforward points. You read law-review articles that take 50 pages to say what might be said more powerfully in 5. And as you read, your incentive for gleaning the main message remains high because your future in law depends on it. You have no choice but to wade through all that opaque prose.

Take, for example, a sentence from a judicial opinion. See if you can follow the court’s point:

And in the outset we may as well be frank enough to confess, and, indeed, in view of the seriousness of the consequences which upon fuller reflection we find would inevitably result to municipalities in the matter of street improvements from the conclusion reached and announced in the former opinion, we are pleased to declare that the arguments upon rehearing have convinced us that the decision upon the ultimate question involved here formerly rendered by this court, even if not faulty in its reasoning from the premises announced or wholly erroneous in conclusions as to some of the questions incidentally arising and necessarily legitimate subjects of discussion in the decision of the main proposition, is, at any rate, one which may, under the peculiar circumstances of this case, the more justly and at the same time, upon reasons of equal cogency, be superseded by a conclusion whose effect cannot be to disturb the integrity of the long and well-established system for the improvement of streets in the incorporated cities and towns of California not governed by freeholders’ charters.¹

What’s the court saying? In a highly embellished style, it’s simply saying, “We made a mistake last time.” That’s all.

If you add sentence after sentence in this style—all filled with syntactic curlicues—you end up with an even more impenetrable morass of words. The only readers who will bother to penetrate it are either law students or lawyers who are paid to do so.

However willing you might be to pierce through another writer’s obscurity, you must insist that your own writing never put your readers to that trouble. On the one hand, then, you’ll need a penetrating mind as a reader to cut through overgrown verbal foliage. On the other hand, you’ll need a focused mind as a writer to leave aside everything that doesn’t help you swiftly communicate your ideas.

That’s the start to becoming an effective legal writer.

Exercises

Begin each of the following exercises by looking up the case cited. Then write a case brief for each one—that is, a short case synopsis that follows a standard form: (1) case name and citation (in proper form); (2) brief facts; (3) question for decision; (4) holding; and (5) reasoning. Your finished product should fit on a five-by-seven-inch index card (front and back). The exercises are increasingly challenging for either or both of two reasons: first, the increasing complexity of the legal principles involved; and second, the increasing difficulty of the language used in the opinions. When you’re finished, have a friend assess how easy it is to understand what you’ve written. Here’s an example of a case brief:

Case: Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974).

Facts: While driving in city traffic, Henderson found that, despite repeated attempts, she couldn’t brake. To avoid injuring anyone, she ran into a pole. An investigator later found that part of a rubber gasket from the air filter had gotten into the carburetor. Henderson sued Ford on various theories, including defective design. Her expert witness didn’t criticize the design of the gasket, carburetor, or air filter, but did say that the positioning of the parts might have been better. No one testified that the air-filter housing was unreasonably dangerous from the time of installation. Yet the jury determined that the air-filter housing was defective and that this defect had caused Henderson’s damage.

Question: The expert witness didn’t testify that the design was unreasonably dangerous—only that it could be improved on. Is this testimony sufficient to support a jury finding that a product’s design is unreasonably dangerous?

Holding: Mere evidence that a design could be made better—without evidence that the design itself was unreasonably dangerous—is insufficient to impose liability on a manufacturer.

Reasoning: A plaintiff in a design-defect case must provide some evidence that the design of the product made it unreasonably dangerous. Specifically, the evidence must show that a prudent manufacturer who was knowledgeable about the risks would not have placed the particular product in the stream of commerce. Mere speculation that a product might be improved on does not constitute evidence of a design defect. A manufacturer is not required to design the best product that is scientifically possible.

Basic

Write a case brief for People v. Nelson, 132 Cal. Rptr. 3d 856 (Ct. App. 2011). If you belong to a writing group or class, circulate a copy of your case brief to each colleague.

Intermediate

Write a case brief for Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). If you belong to a writing group or class, circulate a copy of your case brief to each colleague.

Advanced

Write a case brief for District of Columbia v. Heller, 554 U.S. 570 (2008). If you belong to a writing group or class, circulate a copy of your case brief to each colleague.

§ 2. For maximal efficiency, plan your writing projects. Try nonlinear outlining.

Writers work in various ways, often experimenting with many methods before settling into certain habits. But most writers need a way to set down their yet-unformed ideas in some way other than a top-to-bottom order.

Once you’ve thought of some points to make—even if they’re not fully formed—you’ve already begun the writing process. But you’re not yet ready to begin writing sentences and paragraphs. You’re ready to start outlining, which itself can be a multistep process. Here I’ll discuss producing an outline that probably won’t resemble the outlines you’ve tried for other writing projects. More on this in a moment. First, let’s break down the writing process into its component parts.

It’s useful to think of writing as a four-step process:

1. Think of things you want to say—as many as possible as quickly as possible.

2. Figure out a sensible order for those thoughts; that is, prepare an outline.

3. With the outline as your guide, swiftly write out a draft.

4. After setting the draft aside for some time (whether minutes or days), come back to it and edit.

These four steps derive from a system developed by Betty Sue Flowers, a former Univ...