Acting Justice, Supreme Court, New York County
Columbia, Fordham & New York University Law Schools
It’s been a great honor to have taught CLEs for PLI for over a decade. Doing so has allowed me to teach thousands of lawyers—and to work with so many wonderful people from PLI. I’d like to thank Janet L. Siegal, Esq.; Marin Addis; Katie Crutchfield; Katie Horan; and Alyse Greer, Esq. They’ve worked hard with me to give attendees invaluable lessons in legal writing.
— Hon. Gerald Lebovits
Writing persuasively is a skill every lawyer should master, especially if they’re litigators, but even if they’re not. Lawyers spend much of their time writing. The most important thing they can have (aside from integrity) is good communication skills. Good writing skills have become even more important since the emergence of the digital age, in which the COVID-19 pandemic has forced so many of us to work remotely. If you want your legal writing during the COVID-19 pandemic to be even stronger, here’s an article I wrote 10 years ago giving tips on e-filed documents: “E-Filing: Mastering the Tech Rhetoric.” The tips I gave in 2011 for formatting e-filed legal documents still stand in 2021: avoid legalese; check your grammar, punctuation, and spelling; consider your readers’ navigational needs (bookmarks, hyperlinks, and thumbnails); have ample white space; and use an easy-to-read font like Century or Times New Roman.
You might think, because you were taught legal writing in law school, that you have a “good enough” grasp on persuasive writing. But most people pad their writing with impenetrable complexity. This tendency to write difficult-to-read text makes persuasive writing a notoriously difficult skill to master. It’s so difficult that sitting down to write is a daunting task. That’s why, during the “pre-writing” stage, you should decide (1) what kind of document your reader needs and why; and (2) which laws to apply to your facts. After you determine your audience and purpose and familiarize yourself with your sources, sit down—in a distraction-free place—to begin writing. Start by writing the parts that come most easily to you. Doing so builds confidence and momentum and gives you the space necessary to strengthen your arguments with additional research.
To be persuasive, focus on your facts. Let the principles of storytelling, along with theme, perspective, and organization, tell your reader what happened in a way that’ll make your reader walk in your client’s shoes.
The longest and most important section of persuasive legal documents is the argument (or discussion) section. This section should begin with a hook—something memorable that leaves an impression on your reader. This hook should be in your roadmap/thesis paragraph, in which you state (1) the issue; (2) the reason(s) you are right (in the same order in which you explain yourself later on in the section); (3) how the court should rule; and (4) why it should grant the relief you’re seeking.
If you’re discussing more than one issue, divide your argument section into subsections, beginning with your best and strongest point. If two points are equally strong, begin with the one that yields the greater relief. Use subheadings and point headings to delineate each subsection, and use CRARC to organize each subsection. CRARC, an improvement over IRAC, stands for Conclusion, Rule, Application, Rebuttal and Refutation, and Conclusion. This method of organization asks you to begin your argument with a persuasive conclusion instead of a neutral issue statement. It also directs you to craft a rebuttal that acknowledges the potential weaknesses of your client’s case and preemptively refutes the other side’s contentions. CRARC draws the readers’ attention right away to the arguments with which they might agree. It also asks you to anticipate a rebuttal to give you credibility without undercutting your argument.
When you finish writing, your sections should fit together like pieces in a jigsaw puzzle. Build your organization through thesis paragraphs, topic sentences, headings, and subheadings that, together, function as an outline of your argument. You don’t have infinite space. Avoid redundancy. Eliminate superfluous words. (One example is “of”; you can make your writing more concise by getting rid of this two-letter word you likely use more frequently than you think you do.) Discuss each subject only once and in one place. Write concisely. Decision-makers read countless documents. If you write concisely, you’ll make your readers’ job easier, and thus make them inclined to agree with you. Specificity is key. It’s always better to be precise than concise, and detailed than conclusory.
In addition to being logical and succinct, your argument should be honest. The most important quality a lawyer can possess is integrity—so be honest about your facts. Address unfavorable facts before your adversary raises them. If a fact is unfavorable for your client, deal with the fact honestly; don’t omit it. Address it, but deemphasize it by placing it in the middle of a sentence, paragraph, or document and weaving the good facts around the bad fact. Cite and represent your sources accurately. Plagiarizing authorities compromises your competence as a lawyer and your professionalism.
A disrespectful tone also compromises your professionalism. Be measured, rational, and respectful. If you’re condescending, defensive, sarcastic, or self-righteous, your reader won’t want to rule for you. The goals of persuasive writing are to (1) make the court want to rule for you, and (2) make it easy for the court to rule for you. If, upon rereading your document, you don’t think that you’ve accomplished those two goals, go back and edit, edit, edit.
While you’re editing, pay attention to the smaller—but no less important—aspects of your work, like grammar and punctuation. A document full of fused participles, dangling or misplaced modifiers, run-on sentences, and incomplete citations will make it hard to persuade. Write in the positive to increase the likelihood that your readers will understand you. And use gender-neutral language. The latter “to-do” item is especially important in current times. Long gone are the days when male was the default gender. There’re many ways to be gender neutral: restate the noun, rewrite the sentence to eliminate the pronoun entirely, use plural antecedents, or write in the second person.
It’s also important to know what not to do. Many stylistic features undermine your persuasiveness. Absolutes and adverbial excesses, for example, are no-go’s; things are rarely without exception. Cowardly qualifiers, such as generally, typically, and usually, are no-go’s, too; they make you sound insecure. If precedent supports your opinion, there’s no reason to hedge. Metadiscourse (like “In our opinion. . . .” or “The fact of the matter is that. . . .”) is also counterproductive. Metadiscourse adds nothing substantial to your writing yet wastes space. Similarly, nominalizations (the erroneous preference of nouns to verbs) and the passive voice make your writing clunkier and wordier; make your writing more concise and exciting by emphasizing verbs and writing in the active voice.
I leave you with reminders about legal ethics that tie into persuasive writing: don’t exaggerate; don’t misrepresent your sources; and cite what you use, and use what you cite. The best way to persuade is to demonstrate your integrity. And there are no shortcuts to that.
Register now for Justice Lebovits’s Writing for Litigators 2021 program, scheduled for June 28, 2021, to learn more about legal writing in the age of COVID-19, why legal writing is important and why it’s difficult, the writing process, persuasive writing, the elements of a brief, citations, legal-writing controversies, grammar and punctuation, legal writing “do’s” and “don’ts,” and legal-writing ethics.
Gerald Lebovits is Acting Justice, Supreme Court, New York County, and President of the New York Association of Acting Supreme Court Justices. Elected Adjunct Professor of the Year at three New York City law schools, he is an adjunct professor of law at Columbia Law School, Fordham University School of Law, and New York University School of Law. He has authored the New York State Bar Association Journal’s Legal Writer column since 2001 and has published six books, including The Legal Writer: Writing it Right (2016).
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