You Made Your Case – Art of Persuading Judges – WRITING STYLE

Value clarity above all other elements of style.

In brief –writing, one feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression—these and all other qualities must be sacrificed if they detract from clarity. This means, for example, that the same word should be used to refer to a particular key concept, even if elegance of style would avoid such repetition in favor of various synonyms. It means that you must abandon interesting and erudite asides if they sidetrack the drive toward the point you are making. It means that you should never use a word that the judge may have to look up. It means that nothing important to your argument should appear in a footnote.

Further, it means shunning puffed-up, legalistic language. Make your points and ask for your relief in a blunt, straightforward manner.

Wrong: The undersigned counsel do hereby for and on behalf of their clients, for the reasons explained hereinbelow, respectfully request that this Honorable Court consider and hereby rule that no issues of material fact do exist in the instant controversy, and that a final judgment be entered in favor of the client of the undersigned counsel (sometimes herein referred to as “Defendant” or “Cross –Plaintiff”) and against Plaintiff.

Right: Johnson requests entry of summary judgment.

Clarity is amply justified on the ground that it ensures you’ll be understood. But in our adversary system it performs an additional function. The clearer your arguments, the harder it will be for your opponent to mischaracterize them. Put yourself in the shoes of a lawyer confronting an opposite brief that is almost incomprehensible. You struggle to figure out what it means —and so does the court. What an opportunity to characterize the opposing argument in a way that makes it weak! This can’t happen to you—your opponent will not be able to distort what you say—if you are clear.
Antonin Scalia and Bryan A Garner

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