Although it’s been in bookstores since Spring 2008, recently I had the chance to read Making Your Case: The Art of Persuading Judges by Justice Antonin Scalia and Bryan A. Garner. Making Your Case includes sections that should be required reading for every attorney – even those who will never appear before a court. Whether drafting a contract or making an argument to a USPTO examiner, every attorney should expect that the words that he/she puts on paper may end up before a court someday. So, it’s important that the text be clear, concise, and persuasive.
I’ve read way too many legal documents that could have been cut in half simply by paring down overinflated sentences. The best legal writing – whether it be a contract, legal memo, USPTO argument, or other document – gets to the point and avoids legalese. (I’d be very happy if I never saw a “hereinafter” again in my life.) Unfortunately, shorter legal documents typically take longer to write. It’s easy to dump every thought onto a sheet of paper. What’s more difficult is removing the stuff that’s non-essential so that the document engages rather than exhausts the reader.
In the book, U.S. Supreme Court Justice Scalia and Black’s Law Dictionary Editor-in-Chief Garner engage in a lively discussion about general principles of argumentation, writing and oral argument. The section on “Writing Style” is especially helpful, with reminders to:
- use section/paragraph headings to serve as signposts for your argument;
- add examples to help readers understand abstract arguments; and
- banish jargon. (Would you ever use “such” or “said” as an adjective — e.g., “said book” — in conversation? Of course not. Instead, simply use “that” or “the.” )
The writing tips are useful for contracts, opinions, diligence memos – in order words, any document that needs to be clear and concise. Also, many of the tips in the “Oral Argument” section are useful for negotation sessions. These include common-sense reminders to be prepared, know the facts cold, and be flexible.