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Evan Humphreys, Managing Attorney of Appellate Practice
In every newsletter, OFR provides a practice tip, often highlighting a rule related to juvenile law. In this practice tip, we are going to learn to break rules.
Not legally binding rules of course! You still have to follow those. Instead, this practice tip will focus on certain “rules” about legal writing that many of us adhere to, but which may not always be the most persuasive way to write.
Whether you are writing appellate briefs or trial motions, take a look at these common legal writing conventions; if you follow any of them, think about how well they serve you and your clients:
Facts must be delivered chronologically
Outside of a few exceptions, any piece of legal writing is invariably telling a story. There is something your client needs and you must provide a reason why the court should give them that.
Such legal writing often starts with a recitation of the procedural and factual history of the case. It might first list the names and designations of the parties, the dates of birth of the children, the date the children were taken into state custody, the date the petition was filed, and so on. Even if those events are only tangentially related to the relief being sought, there seems to be a compulsion among lawyers to write this way.
But would you tell any other story like that? If you wanted to send a message to your friend about a funny thing that happened on the way to work, would you start with, “I was born on Wednesday, May 15, 1985, at 9:33 a.m. in Kalamazoo, Michigan…”?
You probably wouldn’t (and if you would, you should not). We know that those details are irrelevant to the story of the funny thing that happened on the way to work. Sure, we might want to briefly establish that we were on our way to work, but we would want to get to the funny thing that happened as soon as possible because that’s what the story is about.
Why should legal writing be any different? If, for example, you are writing a motion to restore your client’s visitation rights, your story probably begins with an event connected to visitation. It might begin with the last visit that occurred and the joyous time that parent and child spent together. Or it might begin with the client entering rehab and their journey towards sobriety. But it probably doesn’t begin with the child’s birth.
Where you begin a story is up to you. But think about the most effective way to begin that story rather than the conventional way.
Facts must be given dispassionately
Law school did not teach us to be emotional. If anything, it taught us that a cold, neutral tone is the most persuasive way to write for impartial judges.
There’s some truth to that. Judges rarely respond well to hyperbolic language. If you are appealing a minor procedural violation, do not tell the Court that, if it affirms, it might as well throw the rules of evidence and the Constitution into the trash (trust me on this one). Passion should also never excuse a lawyer’s failure to adhere to the Rules of Professional Conduct.
But emotion and passion have a critical place in legal writing, particularly in juvenile law. We deal with rights that are fundamental, not in spite of their emotional nature, but because they are deeply tied to emotions.
Parents have a fundamental right to their children because of the love a parent has for their child. Children also have a right to be with their parents and siblings because of those affectionate bonds. Children have an equally important right to be free from fear for their safety. We can even have an emotional connection to procedural rights because they implicate feelings like fairness and justice.
Injecting emotion into your writing does not need to be grandiose. It can be as simple as the way in which you talk about your client. For example, is it more humanizing to refer to them as “the Appellant” or “Minor Child” or is it better to call them “Mother” or by their first name? It’s a small thing, but it can be an effective means of emotionally connecting the court to your client.
While the facts of the case and the applicable law will always lead our work, we must recognize that it is impossible to separate these cases from their emotional aspect. Nor should we want to. Because it is most effective for our clients to show judges not only why ruling in our favor is legally correct, but why they should feel good about doing so.
Lawyers have to write a certain way
Beyond the substance of our writing, there is an endless list of conventions we follow simply because “that’s how lawyers are supposed to write.” But ask a few non-lawyers if they want to read a motion for fun and be amazed at the lack of volunteers.
It’s not just the dryness and complexity of legal writing that turns readers away. We often write in ways that would be unnatural in any other context.
Think about something as simple as a quote and citation. Which of the following is easier to read?
“…[L]ack of education or of culture alone[] are never sufficient justification [sic] for severing the ties that bind families together.” Matter of Sherol A. S., 1978 OK 103, ¶ 34, 581 P.2d 884 (citing In re Kebler, 51 N.D. 698, 200 N.W. 786 (N.D. 1924) (internal quotations omitted) (emphasis added).
“Lack of education or of culture alone are never sufficient justification for severing the ties that bind families together.” Matter of Sherol A. S., 1978 OK 103, ¶ 34, 581 P.2d 884.”
The latter is as accurate as the former, but takes up less space and reads much cleaner. Is it really so important for the reader to know that “lack” was not capitalized in the original sentence? As long as you are not omitting important context and are not subject to a rule that says otherwise, quotations often work best when they are easy to read.
The takeaway is that we should write for accuracy and clarity. We should not write something just because it sounds lawyerly.
Be open to trying new things, but use what works for you
Everyone writes differently. You may do all or none of the things that have been discussed. You may have other writing habits that could be improved or you may be comfortable with your style.
Because everyone writes differently, writers must decide for themselves what works for them and what does not. The key is being open to new ideas and willing to take chances to improve our writing. This openness allows us to serve our clients as effectively as possible.
They deserve nothing less.
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