Write to Win: Legal Writing Tips from Bryan Garner

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Bryan A. Garner is a noted speaker, writer, and consultant regarding legal writing and drafting, as well as teaching seminars on Advanced Legal Writing. He is editor-in-chief of Black’s Law Dictionary and the author of numerous books on legal writing style, including A Dictionary of Modern Legal Usage, The Elements of Legal Style, The Winning Oral Argument, Legal Writing in Plain English, and The Winning Brief. His latest works are Reading Law: The Interpretation of Legal Texts and Making Your Case: The Art of Persuading Judges, both co-written with the late Antonin Scalia. He is president of LawProse, Inc., and a Distinguished Research Professor of Law at Southern Methodist University. 

Garner’s work has been recognized as pioneering across a range of fields, including English usage, grammar, jurisprudence, legal advocacy, legislative drafting, contracts, and legal lexicography.

This blog discusses Legal Writing in Plain English, The Winning Brief, and Reading the Law: Interpretation of Legal Texts.

THE WRITING PROCESS, GENERALLY

The writing process is a set of steps that writers follow to create, improve, and finalize their writing. It can vary depending on the type, purpose, and audience the writing is intended for; however, in general, it involves four main stages: prewriting, drafting, revising, and editing. 

• Prewriting. Ideas are generated, research collected, and the structure for the writing is determined.
• Drafting. The first version of the text is written based on the prewriting plan. The focus in the drafting stage is on expressing ideas clearly and supporting them with evidence and examples.
• Revising. The draft is reviewed, and changes are made to improve content, organization, coherence, and logic. This stage is also the time to ask for feedback on the writing to identify strengths and weaknesses in the prose.
• Editing. The revised draft is polished, and any errors in grammar, spelling, punctuation, and format are also cleaned up. The text is carefully proofread before submission or publication.

The writing process is not a linear or fixed sequence of the above steps but rather a recursive and flexible process that allows the writer to go back and forth between the different stages as needed. This process helps the writer develop their skills and produce work that meets his or her goals and expectations. 

Source:

• The Writing Process | 5 Steps with Examples & Tips (scribbr.com)
• Resources for Writers: The Writing Process – MIT Comparative Media Studies/Writing
• The Writing Process – Center For Writing Excellence – Montclair State University

Legal writing, too, undergoes the above process, as well as some specifics for the writing, as discussed below. 

THE LEGAL WRITING PROCESS – IN PLAIN ENGLISH

Legal Writing in Plain English is a book that teaches legal professionals and students how to write clear, concise, and effective legal documents. The book covers the types of legal writing—analytical, persuasive, and drafting—by providing practical tips, tools, and exercises, giving the reader the opportunity to improve their legal writing skills. It explains the principles of good writing, such as the organization of ideas, creating and refining prose, and editing. This book is based on Garner’s expertise as a legal writing instructor and his extensive research on judges’ opinions and preferences. Legal Writing in Plain English aims to help legal writers effectively communicate their message in plain English.

What Makes Effective Legal Writing?

Legal writing, like any writing, is a skill that requires practice, feedback, and attention to detail. There are many different types of legal writing, such as demand letters, opinion letters, research memos, motions, briefs, judicial opinions, contracts, and statutes, to name but a few, and although each type presents its own unique challenges, they do have some commonalities. That is, certain principles of good writing apply to them all, and these principles can be organized in three major categories:

• Framing thoughts.
• Phrasing sentences.
• Choosing words.

Framing Thoughts

The biggest challenge writers face is to sort through a mass of information and possibilities, identify the points, and then state them coherently with adequate reasoning and support. How to do this? According to Garner, there are several key points to keep in mind:

• Have something to say and think it through.
• For maximal efficiency, plan writing projects; try nonlinear outlining.
• Order material in a logical sequence; present facts chronologically; and keep related material together.
• Divide the document into sections and sections into subparts as needed; use informative headings.

Phrasing Sentences

The following points can help in getting to the point succinctly. Being succinct makes the writing tighter and more streamlined and allows the reader to read faster.

• Omit needless words.
• Keep the average sentence length to 20 words.
• Keep the subject, verb, and object together toward the beginning of the sentence.
• Use parallel phrasing for parallel ideas.
• Prefer the active voice over the passive voice.
• End sentences emphatically.

Choosing Words

Grammatical consistency and simplicity make one’s writing more polished.

• Learn to detest simplifiable jargon (e.g., help instead of facilitate).
• Use strong, precise verbs; minimize is, are, was, and were (excels instead of is very good).
• Simplify wordy phrases; watch out for of (the state’s legislation instead of the legislation of the state).
• Turn -ion words into verbs whenever possible (We reorganized the department instead of We accomplished a departmental reorganization).
• Avoid doublets and triplets (cease and desist; null, void, and of no effect).
• Refer to people and companies by name; never use corresponding terms ending in -ee and -or (Acme Widgets instead of Appellee).
• Don’t habitually use parenthetical names; use only if necessary.
• Shun newfangled acronyms (BOPIC “Buy online; pick up in store”).
• Make everything one writes speakable.

PRINCIPLES FOR ANALYTICAL AND PERSUASIVE WRITING

Analytical and persuasive writing encompasses general expository writing, including letters, memos, briefs, judicial opinions, and so on. When writing an analytical or persuasive piece, bear the following principles in mind:

• Get the point across quickly with a concrete summary upfront.
• Focus the analysis or argument.
• Make it interesting.
• Supply smooth transitions.
• Quote deftly.

All good expository writing has three parts—introduction, body, and conclusion—and it is important to plan and write each part. The introduction should concisely state the points at issue; it serves as an executive summary. Next, the body, with headings and subheadings as needed, develops the reasoning by which the writer seeks to prove the affirmative or negative of the issue at hand. Finally, the conclusion briefly sums up the argument and recaps the points of the argument concisely. Finally, Garner says, try to recap in a fresh manner for a strong closing.

• Use the “deep” issue method, which consists of the following:
• Put the issues first.
• Never begin with the word whether or any interrogative word.
• Break each issue into separate sentences.
• Keep each issue to 75 words or fewer.

• Summarize, do not over-particularize.
• Introduce each paragraph with a topic sentence.
• Bridge paragraphs using pointing words (this, that, these, those, and the); echo links or explicit connectives (also, further, therefore, and yet).
• Vary the length of paragraphs, but generally keep them short.
• Provide signposts for the reader along the way.
• Unclutter the text by moving citations into footnotes.
• Weave quotations into the narrative.
• Be forthright when dealing with counterarguments.

PRINCIPLES FOR LEGAL DRAFTING

The area known as “legal drafting” includes various types of documents that set forth rights, duties, and liabilities in the future, such as contracts, wills, trusts, ordinances, rules, regulations, and statutes. Garner provides the following principles for legal drafting:

• Draft for the ordinary reader.
• Organize provisions in order of descending importance.
• Minimize definitions and cross-references; if there are more than a few, place them in a section at the end.
• Break down enumerations into parallel provisions.
• Do not use the word shall.
• Do not use provisos.
• Replace and/or whenever it appears.
• Prefer the singular over the plural.
• Prefer numerals, not words, to denote amounts.

PRINCIPLES FOR DOCUMENT DESIGN

The final section of the book discusses some important aspects of the document after the writing is complete. Garner briefly discusses the importance of writing to not only appeal to the reader but also to draw the reader into the work. Garner refers to this process as “document design.” The following pointers, although specific to legal documents, can be applied to other writing as well.

• Use a readable typeface.
• Create ample white space and use it in a meaningful way.
• Highlight ideas with attention-getters, such as bullets.
• Do not use all capitals.
• For a long document, make a table of contents.

THE WINNING BRIEF

The goal of The Winning Brief is to teach lawyers how to write persuasive briefs for trial and appellate courts. It contains one-hundred tips that cover every aspect of legal writing, from planning and structuring the argument to choosing the right words for maximum effectiveness, to style and citations, and last, but not least, designing the document. This work is based on Garner’s extensive experience as a legal writing expert and writing teacher, and it provides examples of good and bad writing, quotations, checklists, and model briefs. This book can help lawyers connect with judges and help them win their cases through clear, concise, and compelling writing.

WHAT IS THE WINNING BRIEF?

Garner begins by asking, “Does good writing style help persuade judges?” 

The answer to that question is yes, and Garner makes a convincing case that, in fact, writing style does help persuade judges. If anyone would know, it would be Garner, who has worked with judges all over the country to help them improve the writing of their judicial opinions. He has polled judges, both formally and informally, to learn their preferences, and with his “deep issue” method, he has even been able to help shape their preferences. 

The Deep Issue Method

The deep issue method is a way of framing the main legal question in a brief or memo that is clear, concise, and informative. It consists of three to four sentences that follow a syllogism:

• Major premise (controlling law).
• Minor premise (relevant facts).
• Conclusion (answer to the question).

The deep issue method, says Garner, is “the ultimate, concrete question that a court needs to answer to decide a point. It should not start with the word ‘whether’ or be vague or confusing; it should capture the reader’s attention and create a lasting impression.”¹Source: Legal Writing Tip: Start Your Brief With the “Deep” Issue – The Bar Association of San Francisco (sfbar.org).

Here is an example of a deep-issue statement from Garner’s book:

“The Supreme Court has held that the Fourth Amendment is not violated when a police officer makes a custodial arrest after seeing the person commit a misdemeanor traffic offense in a public place. A police officer saw John Smith driving on Main Street without headlights after dark—a misdemeanor. The officer arrested him. Did the arrest violate John Smith’s Fourth Amendment rights?”

One can identify the elements according to the syllogism above.

As mentioned earlier, each tip begins with a quote, and Garner follows up on the quote with before and after examples. So for the above illustration of the “deep issue” method, there is the following – 

“The deep issue is the final question you pose when you can no longer usefully ask the follow-up question, ‘And what does that turn on?”

When asked why he wrote his books, Garner said that, by and large, lawyers did not understand their judicial readers. He has listened to numerous judges, and most of them have admitted that if they had known in the ‘old days’ what they knew now that they were judges, they could have been more effective advocates for their clients. The point Garner makes is a powerful one, something all lawyers can take to heart—one should not have to become a judge to learn about effective persuasion. 

What is The Winning Brief all about? Garner’s statement says it all.

READING THE LAW: INTERPRETATION OF LEGAL TEXTS

Garner wrote Reading the Law: Interpretation of Legal Texts with the late Supreme Court Justice Antonin Scalia. In it, they explain the principles and techniques of constitutional, statutory, and contractual interpretation. The book argues for a textualist approach that gives meaning to the words of a legal text as they were understood by the lawmakers or parties to the development of the text. The book also criticizes alternative methods of interpretation, such as purposivism, dynamic interpretation, and strict construction. Hundreds of examples are provided from actual cases to illustrate the application of interpretive rules and canons.

The book is divided into four parts:

• Introduction. This part introduces the concept of legal interpretation and its importance for lawyers and judges. It explains the difference between interpretation and construction, as well as between textualism and originalism.
• Sound Principles of Interpretation. The next section presents 57 principles of interpretation that are derived from logic, grammar, rhetoric, ethics, and historical sources. These principles cover topics such as ordinary meaning, context, structure, punctuation, definitions, presumptions, implications, and coherence.
• Thirteen Falsities Exposed. The third section refutes 13 common fallacies or misconceptions about legal interpretation, such as the idea that words have no inherent meaning, that the spirit of the law prevails over the letter, that equity permits a departure from clear text, and that legislative history is authoritative.
• Afterword. The concluding section summarizes the main arguments of the book and defends textualism against its critics. It also provides practical advice for lawyers and judges on how to read and write legal texts.

This book is a dense read, but the following example provides an idea of what Scalia and Garner argue for.

The book discusses a principle known as expressio unius est exclusio alterius, which means that the expression of one thing implies the exclusion of another. This principle helps resolve the ambiguities in legal texts by inferring that what is not mentioned is intentionally omitted. For example, if a statute provides that “no person shall sell or offer for sale any alcoholic beverage on Sunday,” it implies that selling or offering it for sale on any other day is permitted. 

Furthermore, this book also provides some counterexamples and limitations to this principle, such as when the context or purpose of the legal text suggests a different meaning or when the enumeration is not meant to be exhaustive. For example, if a statute provides that “the following persons are eligible for jury service: a) citizens of the United States; b) residents of this state; c) persons who are at least 18 years of age,” this does not imply, according to Scalia and Garner, that these are the only requirements for jury service or that people who meet these requirements are automatically eligible. There may be other conditions or disqualifications that are not listed in the statute.

Another important concept the book addresses throughout is what they term the ‘fair reading’ method. According to this method, judges should look for the meaning of the text as it was understood by a reasonable reader at the time the text was enacted and avoid relying on the drafters’ intentions or consequences of the interpretation. This method is based on fifty-seven canons of construction, which are rules or principles that guide the interpretation of legal texts. Some examples of the canons include the following:

• The ordinary-meaning canon. Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.
• The surplusage canon. If possible, every word and every provision is to be given effect. None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
• The presumption against ineffectiveness. A textually permissible interpretation that furthers rather than obstructs the document’s purpose should be favored.

These are just a small sample of what Garner and Scalia lay out in their book. The interested reader is invited to read the book to gain a fuller understanding of their arguments and an appreciation for their extensive discourse on the reading and interpretation of legal texts. 

CONCLUSION

In conclusion, the collective wisdom and guidance provided by Bryan A. Garner in his various works, notably Legal Writing in Plain English, The Winning Brief, and Reading the Law: Interpretation of Legal Texts, co-written with late Supreme Court Justice Antonin Scalia, present a compelling argument for clear, concise, and compelling legal writing, document design, and legal text interpretation. Garner’s invaluable contribution to the field of legal writing and his dedication to enhancing its quality have illuminated the path for legal practitioners and students alike.

Garner underscores the importance of the writing process, and dissects it into prewriting, drafting, revising, and editing stages, as the foundation of effective legal writing. The principles of framing thoughts, crafting sentences, and choosing the right words form the cornerstone of this process, and Garner’s insights transform these into the potent tools of the legal profession.

In Legal Writing in Plain English, Garner champions clarity and brevity, furnishing readers with tools and exercises designed to strengthen their legal writing skills. The principles of analytical and persuasive writing, the construction of quick, concrete summaries, focused arguments, engaging narratives, smooth transitions, and deft quoting all come together to deliver a potent, persuasive, and compelling legal argument.

The Winning Brief serves as a comprehensive guide for legal professionals. Garner shares his extensive experience through a hundred practical tips covering every aspect of legal writing, including the ‘deep issue’ method, which offers a formula for creating clear, concise, and compelling issue statements. The importance of understanding the judicial audience is also emphasized, redefining effective persuasion in the legal arena.

Meanwhile, Reading the Law: Interpretation of Legal Texts presents a thorough examination of legal interpretation. The authors make a case for a textualist approach, respecting the original meaning of legal texts while exposing the fallacies of alternative interpretive methods. The ‘fair reading’ method, a concept central to the book, calls for a sensible understanding of the text as it would have been interpreted at the time of its enactment.

Garner’s teachings extend to document design as well, encouraging the use of a readable typeface, meaningful white space, idea highlighting, and other techniques that enhance the overall reading experience. These principles are not exclusive to legal documents and can be applied universally in any writing to improve readability and understanding.

Garner’s works and teachings form an indispensable guide for mastering the art of legal writing. By advocating for clarity, brevity, and precision, Garner’s approach makes legal documents more accessible and understandable. Garner’s work serves as an enduring testament to the role of effective communication in the legal sphere.

The following is a comprehensive list of fifty-eight principles of high-quality legal writing discussed herein:

1. General Principles.
1. Have something to say and think it through.
2. Plan writing projects; try nonlinear outlining.
3. Order material in a logical sequence; present facts chronologically; keep related material together.
4. Divide the document into sections and subparts as needed; use informative headings.
5. Omit needless words.
6. Keep the average sentence length to 20 words.
7. Keep the subject, verb, and object together toward the beginning of a sentence.
8. Use parallel phrasing for parallel ideas.
9. Prefer the active voice over the passive voice.
10. End sentences emphatically.
11. Learn to detest simplifiable jargon.
12. Use strong, precise verbs; minimize is, are, was, and were.
13. Simplify wordy phrases; watch out for “of.”
14. Turn “-ion” words into verbs whenever possible.
15. Avoid doublets and triplets.
16. Refer to people and companies by name; avoid terms ending in -ee and -or.
17. Avoid parenthetical names unless necessary.
18. Shun newfangled acronyms.
19. Make everything one writes speakable.
2. Analytical and Persuasive Writing.
1. Get the point across quickly with a concrete summary upfront.
2. Focus the analysis or argument.
3. Make it interesting.
4. Supply smooth transitions.
5. Quote deftly.
6. Introduce each paragraph with a topic sentence.
7. Use pointing words (this, that, these, those, and the) or explicit connectives (also, further, therefore, and yet) to bridge between paragraphs.
8. Vary the length of paragraphs, but generally keep them short.
9. Provide signposts for the reader along the way.
10. Unclutter the text by moving citations into footnotes.
11. Weave quotations into the narrative.
12. Be forthright when dealing with counterarguments.
3. Legal Drafting.
1. Draft for the ordinary reader.
2. Organize provisions in order of descending importance.
3. Minimize definitions and cross-references; if there are more than a few, place them in a section at the end.
4. Break down enumerations into parallel provisions.
5. Do not use the word “shall” unless appropriate.
6. Do not use provisos.
7. Replace “and/or” whenever it appears.
8. Prefer the singular over the plural.
9. Prefer numerals, not words, to denote amounts.
4. Principles for Document Design
1. Use a readable typeface.
2. Create ample white space and use it in a meaningful way.
3. Highlight ideas with attention-getters such as bullets.
4. Do not use all capitals.
5. For a long document, make a table of contents.
5. Principles from “The Winning Brief.”
1. Plan and structure the argument effectively.
2. Choose the right words for maximum effectiveness.
3. Use appropriate style and citations.
4. Design the document in a way that appeals to the reader.
5. Employ the “deep issue” method in framing the main legal question in a brief or memo.
6. Understand the judicial readers and their preferences.
7. Aim for clear, concise, and compelling writing.
6. Principles from “Reading the Law: Interpretation of Legal Texts.”
1. Understand the principles and techniques of constitutional, statutory, and contractual interpretation.
2. Apply a textualist approach.
3. Use the principle of expressio unius est exclusio alterius to resolve ambiguities in legal texts.
4. Understand the context or purpose of the legal text.
5. Apply the ‘fair reading’ method.
6. Apply the fifty-seven canons of construction.