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March 10, 2009

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In this article, we outline one of the most important skills of a successful litigation attorney, legal writing. Many law students think a case is won or lost in the courtroom. This is far from the truth. Before a trial commences, litigators on each side must flex their writing skills in briefs, motions and other legal documents. All lawyers should be competent writers, but the writing skills of a litigator can be the deciding factor in the outcome of a case. Because writing is not always glamorous, it gets little play in the media. Nevertheless, it is the cornerstone of practicing good law.

Many lawyers go to law school because a teacher or favorite aunt told them that they write well. Once in law school, however, they often discover an uncomfortable truth: legal writing is different from other kinds of writing. Elements of journalistic and creative writing might be useful in legal writing, but when it comes down to it, the essence of a lawyer's prose is precise, lucid narrative and a grasp of the logic of the law. Lyricism and attention-grabbing phrases have less value than a clearly expressed argument in what might appear dry language for a writer used to more dramatic touches. Stylistically, lawyers often stick closely to an outline format, using lists, concise sentences and plain words, in addition to common, often Latin-based, legal terms and phrases.

The litigator must either illuminate an area of law or make an argument for an audience that's likely to include busy judges and clerks who want the attorney to get to the point quickly. Although it's important to engage your reader, a legal document is not the place for creative flights of fancy. "I have to make things very clear, very fast," says a public defender. "I can't get too creative or I'll lose my reader. It almost has to be plain." The facts and the law are the muscle and bones of good legal writing; the argument is the sinew that holds it together. If a prior case is interesting but superfluous, it should not be included. A successful litigator knows this instinctively.

A litigator's writing is either descriptive or persuasive in nature. In an internal memorandum to the supervising partner, a litigator does not need to re-argue their client's case. Her task will likely be to explain a particular rule of law, supported by a great deal of legal research. Such descriptive documents will provide the information necessary for a firm to make decisions about the best legal course of action. A persuasive document, often addressed to a judge, argues in favor of a particular course of action. All elements of the document must be focused on the goal of convincing the reader to take this course of action. "Junior associates need to know when to be persuasive and when to be descriptive. And not just in writing," observes a corporate litigation partner.

Fortunately, legal writing is something that can be taught if you've got general writing skills. A good sense of organization, brevity of phrasing and an impressive vocabulary make a good start.

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