Legal Writing

Laurence Silberman

Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not, and littering their briefs with references to ‘SNF,’ ‘HLW,’ ‘NWF,’ ‘NWPA,’ and ‘BRC’…

– Senior Judge Laurence Silberman, writing for the D.C. Circuit, in a footnote lamenting the litigants’ in National Association of Regulatory Utility Commissioners v. United States Department of Energy overuse of alphabet soup.

I mentioned last week that I recently moderated a panel of in-house lawyers at Schnader Harrison’s annual retreat. Always happy to share, I’m gathering here my existing thoughts on writing articles to develop legal business plus some new ideas suggested by the panelists. And, because handy lists get clipped and saved, I’m putting those thoughts into a list.

What are the ten rules for writing an article that will generate legal business for the author?

1. Write about a substantive issue, not a procedural one.

No one in the history of the world has retained a lawyer because the lawyer was the world’s greatest authority on Federal Rule of Evidence 403 or how to remove an action to federal court. People hire 10b-5 lawyers, not removal lawyers. If you’re writing to generate business, write on a substantive topic, not a procedural one.

2. Write about a niche area of the law.

If you write an article about some clever provision that a real estate lawyer should put in a lease, potential clients will read your article, send your article to their existing real estate lawyers, and ask the incumbents whether the incumbents have considered this idea and are able to put it to use. Your article thus educated the world and may have generated business for incumbent counsel, but it didn’t generate any business for you.

Niches are better. If you write about a niche area of the law — I’ve previously suggested that Colorado escheat law is wide open — the client’s incumbent firm won’t be able to provide the service that you’ve written about. If you’re writing to generate business, you don’t want to just suggest ideas that other lawyers can easily use.

3. . . .

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Majority opinions are hardly sitting ducks for the criticism dissentals may heap on them. If a panel majority finds that a dissental scores some valid points, it can modify its opinion to eliminate the problem, something that happens regularly in the Ninth Circuit. Indeed, fear that internal criticisms will be taken public often causes judges to moderate outlier opinions so as to present a smaller target for public criticism and possible certiorari. One of us (yes, the hot one) is even aware of a case where the panel withdrew its opinion and reversed the result, after winning the en banc vote, in the teeth of a stinging dissental.

– Chief Judge Alex Kozinski (9th Cir.) and his former law clerk, James Burnham of Jones Day, in a Yale Law Journal online essay entitled I Say Dissental, You Say Concurral (defending the practice of filing a dissental, aka dissenting from the denial of rehearing en banc).

(Additional discussion, after the jump.)

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I occasionally take advantage of my little megaphone here at Above the Law to vent about poor quality drafts. When I do, “commenters” or correspondents routinely suggest that I’m tilting at windmills: “If you receive a poor quality draft, send it back to the person who wrote it, and tell that person to make it better. There’s no reason why you, Mark, should be saddled with improving the thing.”

Wrong, wrong, and wrong again!

I’m absolutely saddled with improving the thing. It often makes no sense at all to return a bad draft to the author and ask for a better draft. In fact, I submit that there are only two situations in which it does make sense to ask the original author to improve a draft . . .

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Ah, the Bluebook. Some people love it, but even more people despise it. If you ask my colleague Elie Mystal about the Bluebook, he’ll tell you that it’s the only book in the world he’d actually consider burning in public. Even federal judges hate the Bluebook. In fact, when we held a poll about whether use of the Bluebook should be abolished, 51% of our readers agreed that it should be banished.

All that being said, is it any wonder that a student from a law school in Virginia is raging against the law review’s upcoming Bluebook exam? Several law students have written to us about this student’s “guerilla campaign” against the school’s annual exercise in “academic hazing,” and they have even provided us with copies of this kid’s manifesto. (Yeah, he’s got one.)

Who is this revolutionary, and why does he think the school’s Bluebook exam needs to go?

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Here’s my thesis: We create rules to hedge against ineptitude, and we thus institutionalize mediocrity.

Here are the examples. First, someone — the Administrative Office of the Courts? God? — creates rules to hedge against incomprehensible judicial opinions, and we thus discourage judges from writing exceptional opinions.

When new federal appellate judges attend what is affectionately called “baby judges’ school,” the judges are told how to write opinions. An opinion should have five parts, the judges are told: An introduction (which does not have to be preceded by a separate heading); a statement of facts; the standard of review; the legal discussion; and a conclusion.

Do we impose these rules because every judicial idea is best expressed in this format? Of course not. These rules impose a basic organizational structure on decisions, so that even the worst appellate decisions will be marginally comprehensible. The rules hedge against ineptitude.

Most judges follow the rules, and society generally benefits; we understand most of what’s written. I suspect that many judges who would be capable of writing better opinions if they were not bound by the rules nonetheless choose to constrain themselves, opting to do as instructed. Society may suffer in those situations, because the opinions are not as well-crafted as they might otherwise be.

A few judges ignore the rules. Whatever your politics, for example, you probably agree that Judge Frank Easterbrook often writes great opinions; he regularly ignores the mandatory structure. (This isn’t a high crime or misdemeanor, so he’s safe.) We don’t complain when Judge Easterbrook strikes out on his own, because readers understand what he’s saying and often delight in how he expresses himself.

On the other hand, if Judge Nobody were to strike out on his own, the law might become a muddle. We try to control that judge by imposing a structure. Bureaucratic rules discourage greatness, but they hedge against ineptitude.

Here’s a second example:

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week, we discovered that roughly six percent of our readers use — and will continue using — the word “irregardless,” despite the fact that it isn’t a proper word. Please God, make it stop.

Speaking of God, that brings us to this week’s topic: because people are so easily offended, should lawyers strike the term “act of God” and use the phrase “act of nature” instead?

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Suppose your firm has one incompetent partner, and our joint has the misfortune to be working with that person.

This guy consistently misses important issues. He sends us briefs that read (as did one draft I recently received): “In response to ALR’s motion to dismiss the OC, [plaintiff] added an allegation in the FAC that . . . .” We comment, over and over again (as we did recently), that briefs on our behalf must be written in English, not gibberish. Even if you’ve set up short forms, no reader sees “OC” and “FAC” and thinks “Original Complaint” and “First Amended Complaint.” Use words, not alphabet soup.

To no avail.

We suggest that the partner include on the litigation team a gifted writer (because we’re too nice to suggest that the partner include on the litigation team “a lawyer who’s worth a damn”). But nothing ever changes; the partner never hears us. Confronted with an avalanche of criticism and suggestions, no law firm partner has ever said to us, “Why, thank you. Now that you mention it, I realize that I am in fact inept. To better serve your legal needs, I’ll replace myself with a real lawyer.”

No, no, no. Instead, the partner continues to send us bad briefs, making the same mistakes over and over, but seemingly thinking that we may not care the next time around. It’s Einstein’s definition of insanity: “Doing the same thing over and over again and expecting different results.”

Up to that point, the fault is the partner’s. But then I personally make two mistakes….

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week’s vote was extremely close, but 51% of our readers thought that the Bluebook should be abolished. With the fall semester drawing to a close and brief deadlines approaching, we think that law students definitely had a hand in the outcome.

This week, we turn to a question of grammar. Have you been using the word “irregardless” instead of “regardless”?

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week, we found out that only 29% of our readers lie back and think of England when dealing with punctuation and quotation marks. Makes you proud to be an American, doesn’t it?

This week, we turn to a hotly-debated issue among legal professionals: the use of the Bluebook. At least one federal judge hates it, joining hundreds upon thousands of law students to date.

Should we consider putting the Bluebook on the backburner in our legal writing?

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