First-year legal writing mistakes and how to avoid them

Are you making any — or all — of these flubs many 1Ls can’t seem to avoid? Worry not. You can improve your writing with a few smart tactics.

In undergrad, you were a term paper pro. You could crank out thought-provoking three- to five-page term papers replete with resplendent prose and droll, pithy observations, impressing your professors by transforming minutiae into master­pieces. You razzle-dazzled them with all your word bling.

In law school, no one is impressed by your word bling. Less is more, especially when it gets right down to business. Legal writers are rewarded for conciseness, precision, sophisticated analysis, and ef­fective communication.

First-years often bring many of their word bling and “more is more” college writing tricks to legal writing. Your job as a writer has changed; your writing needs to adapt. But how can you move from idea inflation and word bling to clear, concise communication to educate (and impress) your legal reader?

Having recently survived grading and critiquing 30-plus first-year memos, I can offer some pro tips for not writing like a rookie.

Cut to the chase

Get to the point without losing or confusing your reader. Focus your reader’s attention on the most relevant information by avoiding warm-up phrases that bury your point.

We often include “throat clearing” phrases to “warm up” like, “It is clear that…” or “I will argue that….” You don’t need the warm up. In revising, ask your­self: What am I trying to say? Then say it.

Here’s an example of first-year legal writing that buries the point in warm-up phrases:

It must be analyzed whether Mr. Mon­tana has ownership of a valid copyright in regards to his “Revolution” sculpture. In order to establish ownership of a valid copyright, it must be shown that the work was an original work of authorship, the work’s subject matter in question is legally copyrightable, and that all ap­plicable statutory formalities have been complied with by the author. 17 U.S.C.A § 101 et Seq.

It is necessary to use the test as it is described in Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S 340 (1991), to determine whether our client’s sculpture abides by the standards of originality. For a work containing facts to be original, it must be selected, coordi­nated, and arranged in a manner that is unique. Id.

The sample subject matter is copy­right, which is complex on its own. Don’t add layers of difficulty with unnecessary language clouding your message. Cut to the chase by removing warm-up phrases like “It must be analyzed…” and “it is necessary to use the test…”

Let’s fix it.

Does Mr. Montana have ownership of a valid copyright in his “Revolution” sculpture? To establish ownership of a valid copyright, the sculpture must be an original work of authorship, the subject matter must be copyrightable, and all applicable statutory formalities must be followed. 17 U.S.C.A § 101 et Seq.

For a work containing facts to be original, it must be selected, coordinated, and arranged in a manner that is unique. Feist Publ’ns. Inc. v. Rural Tel. Serv. Co. Inc., 499 U.S 340, 344-45 (1991).

The revision immediately gets down to business by identifying the point of the first paragraph — determining ownership of a valid copyright and a clear definition. No hemming and haw­ing to get there. The second paragraph provides the necessary test without all the pomp and procession, and the citation informs the reader that the test comes from Feist.

Here’s another example that makes the reader dig past warm-up phrases to get to the point.

It is clear from the plain language of CrRLJ 2.2(b)(2) that courts of limited jurisdiction are to issue summons instead of warrants unless specific find­ings are made that the defendant will not appear, will commit a violent offense, will interfere with justice, or is already in custody.

The failure by the City to meet even the modest burden provided by CrRLJ 2.2(b) (2) reinforces the fact that the City had no proper grounds to seek an arrest war­rant for Mr. Hotard for this offense. This failure to comply with the rule illustrates that there was no legitimate interest in arresting Mr. Hotard rather than allowing him to be notified of the charges against him via summons.

Don’t exhaust your reader by sending her on a scavenger hunt. What’s the point of the first sentence? What’s the writer trying to communicate? That courts of limited jurisdiction are required to issue summons instead of warrants unless there are exceptions.

But that’s not how it starts out. The sample warms up by telling the reader that the meaning is clear from the plain language of a cited court rule and then has to tell the reader what the court rule says.

Don’t tell. Show your reader by cutting to the chase. Let’s try it again:

Courts of limited jurisdiction are required to issue summons instead of warrants unless the City can show that the defen­dant will not appear, will commit a violent offense, will interfere with justice, or is already in custody. CrRLJ 2.2(b)(2).

The City’s failure to meet even the mod­est burden under CrRLJ 2.2 shows the City lacked grounds to seek an arrest warrant for Mr. Hotard. The City’s failure illustrates that there was no legitimate interest in arresting Mr. Hotard under the court rule.

Now the first paragraph gets right to the point and simply states the court rule. The reader can determine that the lan­guage of the court rule is clear (without the explicit reading instructions). The second paragraph more clearly com­municates the city’s failure to follow the clear language of the rule.

Use your words

You have your reader’s attention. Now use your words. New legal writ­ers use other people’s words when they include “legalese” and over-quote case authority. New legal writers are often uncertain about mucking around with the court’s language. Copying and pasting from cases is quick and easy. Legalese sounds lawyerly. To become a legal writer, you must interpret and apply the law, which requires you to synthesize legal authority to support your assertions and apply the law to new facts. Over-using quotations shortchanges you in several ways by: limiting your ideas to what others have already expressed; substituting another writer’s voice for your own; and implying a lack of confidence in your own writing. Legalese further alienates readers.

To communicate, you must control the language. Use your words. Let’s go back to the copyright issue. The author is interpreting a seminal copyright case decided by the U.S. Supreme Court, Feist Publications Inc. v. Rural Telephone Ser­vice Co. Inc., 499 U.S 340 (1991).

“The sine qua non of copyright is original­ity. To qualify for copyright protection, a work must be original to the author.” Feist Publ’ns. Inc. v. Rural Tel. Serv. Co. Inc., 499 U.S 340, 344-45 (1991). “Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, *346 assume that two poets, each ignorant of the other, compose **1288 identical poems. Neither work is novel, yet both are original and, hence, copyrightable.” Id. at 346.

This is a classic example of first-year legal writing — several quotations strung together, complete with the Latin sine qua non and star pagination, copied and pasted right into the memo.

Is this how you envision yourself talking to a client? Imagine explaining this information to your aunt, uncle, or neighbor. You’ll need to translate the court’s language into your own. And while we’re on the topic: When you “copy with reference” and paste into your docu­ment, at least edit out the star pagination.

Let’s put it into our own words.

Originality is the prerequisite for copy­right; a “work must be original to the author” to be protected by copyright. Feist Publ’ns. Inc. v. Rural Tel. Serv. Co. Inc., 499 U.S 340, 344-45 (1991). Yet, originality does not require novelty. Id. A work can be original even if it resembles another work as long as the resemblance is not due to copying. Id. at 346.

Now your aunt or uncle can under­stand. Translating quoted material from case authorities into your own words helps you control the language and com­municate with your reader. Paraphrasing also helps to check your own understand­ing, critical for a sophisticated analysis.

Lead your reader

When you lead, your reader will fol­low. Like good navigators, good writers give their reader directions. Transitions help your reader follow along. Good writers communicate vital content, but also steps in the process — roadmaps to explain where they’re going and how they’ll get there, topic sentences to introduce new ideas, signposts to explain where they are, and transitions to change gears and directions.

Let’s stick with the copyright issue. Here’s a classic first-year example of descriptions of precedent cases that fails to lead the reader.

In Feist, subscribers’ names, telephone numbers, and addresses were included in Feist’s area-wide telephone directory, many of which were copied from Rural’s directory. Id. at 343. The Supreme Court held that Rural’s directory listed the information in alphabetical order, which does not require creativity and was not protected by copyright. Id. at 363.

In Boisson, the plaintiff copyrighted a quilt she arranged with the letters of the alphabet arranged in order in a five-by-six block pattern with small icons in a variety of colors and stitches. Boisson v. Banian Ltd., 273 F.3d 262, 269 (2d Cir. 2001). The court determined that the layout of Boisson’s alphabet quilt required some creativity in the layout, and was protected by copyright. Id.

What does a telephone directory have in common with alphabet quilts? Don’t make your reader solve that puzzle. Lead your reader to the connec­tion by introducing these case descrip­tions. A good topic sentence can quickly direct your reader and communicate your connection.

Here’s the same sample rewritten with a topic sentence and transitional language in bold.

In cases involving uncopyrightable information from the public domain, like letters of the alphabet, names, and addresses, courts examine whether the arrangement of the information required a minimum degree of creativity. For example, in Feist, subscribers’ names, telephone numbers, and addresses were included in Feist’s area-wide telephone directory, many of which were copied from Rural’s directory. Id. at 343. The Supreme Court held that Rural’s directory listed the information in alphabetical order, which does not require creativity and was not protected by copyright. Id. at 363.

On the other hand, in Boisson, the plaintiff copyrighted a quilt she arranged with the letters of the alphabet arranged in order in a five-by-six block pattern with small icons in a variety of colors and stitches. Boisson v. Banian Ltd., 273 F.3d 262, 269 (2d Cir. 2001). The court determined that the layout of Boisson’s alphabet quilt required some creativ­ity in the layout, and was protected by copyright. Id.

Upgrade your legal writing and avoid first-year mistakes by cutting to the chase, using your own words, and leading your reader.

By Jennifer M. Cooper.

JENNIFER M. COOPER is visiting assistant professor of lawyering skills at the Seattle University School of Law. She also blogs on legal writing and education at jennifermcooper.com.