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A Trial Lawyer Isn't Always On Trial, But Is Always Writing

The best trial lawyers must learn to become excellent writers. Here are four principles for legal writing.

By Jillian M. Singer  
on
Jillian M. Singer

Jillian M. Singer

The best trial lawyers need to learn to become excellent writers.

The term “trial attorney” can appear misleading since most cases do not go to trial and many issues are disposed of through pre-trial motions. This makes legal writing extremely important. In my transition from public service to civil litigation at Balestriere Fariello, I’ve had the opportunity to revisit my writing skills and understand where I need to improve and how to improve. Honing and improving legal writing never stops for any attorney, but my experience has taught me that it should be guided by these four principles: be clear, be concise, be engaging, and aim for elegance.

Be clear.

“A lawyer should keep in mind that the purpose of communication is to communicate, and this can’t be done if the reader or listener doesn’t understand the words used.” —Bryan Garner

For an advocate writing a brief or motion to persuade a judge to decide in your client’s favor, little is more important than clarity. To that end, it is important that your words don’t just make sense to you, but also make sense to your reader. In practice, grammar, punctuation and word usage are important so you can write what you mean and mean what you write. Constantly review your writing to make sure it’s clear. I find it helpful to reread drafts after I’ve finished working on them for the day, with fresh eyes. I often catch the most typos and realize which points need further development while sitting on the subway on my way to and from work.

Forget the legal jargon and opt for simple, plain language where appropriate. While precise terms are necessary at times for an attorney to accurately convey the law or an argument, always evaluate your writing to determine when it is necessary to use a precise legal term and when it is not.

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Be consistent with terms used, even when your instinct may be to use a synonym to avoid sounding repetitive. In legal writing, the reader is aware that terms often have a precise operational definition. By using a slightly different word to explain the same thing, you risk confusing the reader who may now think you are referring to something slightly different.

Be concise.

“If I had more time, I would have written you a shorter letter.” —Blaise Pascal

As many lawyers have experienced, it takes more time to cut down a brief than it does to make a brief longer. Legal advocacy and interpretation of the law can lend itself to longwinded, meandering writing. As an advocate, avoid that. Keep your arguments short and to the point, including detail when necessary. Always evaluate your writing to determine if there is a more efficient way to tell the reader what you want them to know.

Be engaging.

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“Make sure you have finished speaking before your audience has finished listening.” —Dorothy Sarnoff

It will not matter how clear and concise your writing is if you fail to engage the reader. Legal writing tackles challenging and sometimes dry subject matter, but there are ways to build your sentences through syntax variation and shifting sentence length to keep your audience engaged as you make your point. Every sentence should not be the same length, nor have the same structure. Some sentences should be long, possibly stringing together smaller points made previously, or setting the foundation for points to be addressed in the sentences to follow. Other sentences should be shorter. Keep your reader invested in your point by making your writing lively.

Have an authentic voice. After reading several cases and statutes it’s easy to be susceptible to a dry artificial tone that characterizes some court opinions. Always evaluate your writing to see if you can hear yourself in it. If you can’t, reword it.

Aim for elegance.

If you can explain complex legal issues in a simple, concise, and engaging way, then you have done a good job. If you can do it with elegance, you’ve done a great job. Striving for elegance makes legal writing a creative endeavor and makes the writing process an interesting challenge throughout your career. However, it is important to master good legal writing before focusing on writing an elegant brief. When I’m able to simply, concisely, and engagingly lay out the points in a brief by the filing date, I consider elegance in my writing. For me this includes reading a variety of cases on a certain topic and noting how each court summarizes the issue, paying attention to which words are most easily and deeply understood by me as the reader. I then can make subtle revisions to my writing, injecting turns of phrase to more artfully make my point.

“Like all magnificent things, it’s very simple.” —Natalie Babbitt

Jillian M. Singer was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.

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