One of the major things that separate lawyers and other legal professionals from the average pro se litigant is legal writing. In fact, briefs, motions, memoranda, pleadings, and even notices are critical to success in litigation. In some cases, the bulk of communications with the judge is in writing. How you come across signals to the judge that you’re prepared for court and able to handle the legal issues involved in your case–or not. Below are some dos and don’ts of legal writing.
DO THIS IN YOUR LEGAL WRITING
- Be Credible. To come across as credible, you want to write in a way that people trust and understand what you’re trying to say. Avoid typos, misspellings, and grammatical errors. Use only terms and concepts you understand. If you don’t understand a term look it up. If after you look it up it doesn’t fit or you still don’t know what it means, take it out.
- Be Authoritative. Being authoritative is all about following rules and citing authorities. First, adhere to the guidelines for writing litigation documents in your court. The guidelines can be found in the local rules or in the statutes of your jurisdiction. Next, when cases and statutes (legal authorities) are required for your document, weave them in, and use proper citations to point to them.
- Be Ethical. When stating your facts, tell the truth, even when the facts are not on your side. Misstatements, exaggerations, and untruthful statements get you nowhere and may harm your credibility with the judge.
- Know the Document You Need to File. One of the hardest things for pro se litigants to know is what to file. At some juncture in a case you might find yourself asking, do I file a motion for summary judgment or a motion to compel? Even lawyers face this dilemma from time to time. It pays to understand which document you need before you put ink to paper. In fact, you don’t even know what to say until you know what document you’ll need.
- Understand the Type of Document You Need. Once you know what document to file, understand what’s required to be successful with that document type. There are many litigation documents but only a few document types. They include motions, pleadings, notices, requests, and a few others. Each type serves a different purpose. For instance, a motion will use authorities to persuade a judge while a pleading will not. A previous post distinguishes the differences in litigation documents.
- Conduct Research. You must do research to support what you say in your writing. In particular, if you’re writing a motion, brief, or memorandum of law, you must do research to find authorities for your arguments. Without this support, your document is just a bunch of words. It won’t persuade a judge to rule in your favor.
- Know Your Audience. Before you write, ask yourself, who is my audience? Answer this question before moving forward. In most cases, your main audience is the judge. Write for him or her.
- Proofread. Write your document as best you can. Then, put it aside. That’s the first draft. Come back to it later, and read it fresh. Take out all errors, typos, awkward wording, misspellings, and so on. If necessary, do some crafting to get it exactly the way you want it. That’s the second draft. Put it aside. Come back later and read it once more to assure everything is as it should be. File it.
DON’T DO THIS
- Don’t Clutter Up Your Message. Leave white space, and leave out unnecessary words. You don’t want anybody to mistake your meaning, so don’t clutter your documents with unnecessary statements, typos and grammatical errors. It’s also not good to include too many authorities. Once you’ve listed an authority for a point, move on. Don’t add a bunch more. They don’t help. Finally, when you need to state a fact, don’t beat around the bush. State it without fanfare or adjectives.
- Don’t Use the Passive Voice. The goal here is to be clear, and it relates to the previous point. Don’t use the passive voice. Use the active. Don’t say, “The money was paid by the defendant.” Say, “The defendant paid the money.” For the sake of clarity, leave out any and all words that add nothing to your document.
- Don’t Display Strong Emotions. This is a biggie for pro se litigants because we’re directly involved in our cases. To make matters worse, a strategic move for lawyers is to fire up our emotions. Don’t let them rile you. When writing, set aside those emotions and focus on your goal for a particular document. That will get their attention better than emotions will.
- Don’t Mischaracterize Your Opponent’s Facts. If you restate your opponent’s arguments or facts, you must do so fairly. For instance, if your opponent says, “I disagreed with my son about the money,” don’t say, “The plaintiff had a nasty fight with his son”. Quoting your opponent is best, but if you must restate facts, a simple restatement without adding your own spin is fair.
There are 3 main reasons to do legal writing, to get issues on the record, to talk to the judge, and to put the other side on notice of your position. Legal writing is therefore not only necessary but strategic, so you want to get it right as often as you can. Following this set of do’s and don’ts will take you a long way to using strategy in legal writing.