Ahead of the OBA’s popular primer program on writing sharply, strategically and skillfully – beyond boilerplates and bound to sway – leading litigators share six deeply held drafting 'do's and 'don’t's.
Use headings to persuade
This advice, underscoring the importance of headings, comes from Zohar Levy, partner at Fasken, who elaborates, “They frame everything that follows for your reader, so aim for statements like ‘The plaintiff cannot meet the legal test’ instead of ‘The legal test has three requirements.’ Then, read back the table of contents to make sure the argument flows.”
Ditch the ten-dollar words
With complex scenarios, simple is the solution, not to mention timesaving for the reader. Adil Abdulla, associate, Sotos Class Actions boils it down to this: “Use short words and sentences. They are easier to understand.”
Be assertive and descriptive
Chanakya Sethi, partner, Davies Ward Phillips & Vineberg LLP, has a ‘do’ and a ‘don’t’, that both illuminate the importance of creating a straightforward path that the reader can follow effortlessly. Like Levy above, he uses headings to lead the way: “Make sure every heading in your factum is assertive (e.g., ‘Acme has failed to meet its burden to show X’) not neutral (e.g., ‘The burden of proof’). Doing so will help the reader understand your entire argument just by skimming your table of contents.”
Sethi’s pet peeve demonstrates how easy it is to lose your reader in a sea of unspecific descriptors: “Factums that use the party’s role throughout instead of a party’s actual name or a useful description. By the time you’re on page 5, no one remembers who the ‘Applicant’ or ‘Respondent’ is. But the reader will remember actual names or descriptive terms like ‘the employee’ or ‘the injured person’ or ‘the taxpayer’.”
Disorganized writing is a frustration for many a reader, including Allison Speigel, partner, Speigel Nichols Fox LLP, but she has three solid suggestions for righting the ship:
- Ensure that the structure of the written piece flows logically. If a paragraph does not make sense in the section, remove it or change it.
- Ensure that the logic is sound. If a law student cannot follow the logic, it needs to be clarified.
- Do not be repetitive.
Argue with precision, not imitation
Don’t dull your argument by fashioning it in someone else’s mould. Sachin Persaud, partner, Boghosian + Allen LLP, cautions, “Write with the goal of conveying your point, not with the goal of mirroring precedents in terms of format and style.”
Make the reader’s job easier
Pithily capturing key points from all contributors, David Milosevic, partner, Milosevic Fiske LLP, summarizes the core objective to keep in mind in your mission to write persuasively: readability. “Always write with your audience in mind,” he advises. “Make the reader’s job easier. Keep your materials focused, succinct and relevant to the issue at hand. Less is more.”
Looking for more pro tips? Register for the OBA Civil Litigation Section program, Persuasive Legal Writing, taking place on September 21.