Bench & Bar September/October 2026

EFFECTIVE LEGAL WRITING

A BETTER APPROACH TO DRAFTING EFFECTIVE PLEADINGS WRITE TO THE STATUTE, NOT AROUND IT:

BY MARCIA M. ZIEGLER

M any lawyers, particularly litigators, are natural storytellers. We can seamlessly weave the facts of our client’s case into a riveting tale in front of a jury. But emotive or evocative imagery only goes so far–especially when a lawyer must con vince a judge that the law supports her case as much as the facts do. One of the most common mistakes lawyers make is writing pleadings that tell a com pelling story without answering the precise legal question the judge is actually required to decide. Effective pleadings don’t just set a scene–they clearly show the court that our argument is supported by the law. Many times, this takes extensive synthesis of appli cable cases, some of which might conflict or are based on substantively disparate factual situations. But when a pleading is based squarely on a statute, the job of the legal writer becomes clearer. Every statute creates a roadmap for judicial decision-making; the most persuasive pleadings do not simply paint an interesting factual picture—they walk the court through the statutory road map in the order the legislature enacted.

A useful drafting exercise is to imagine that the judge has the statute open on one side of the desk and your pleading on the other. Your goal is to make it easy for the court to check each statutory box while ruling in your client's favor. The recently enacted version of KRS 403.270 provides an excel lent example. The 2026 version of this child custody statute changed the sequence of the court's analysis. Before considering the traditional best-interest factors, the statute now provides (emphasis added): “In making a determination of custody, the court shall, prior to consideration of any other factors enumerated in sub section (4) of this section: (a) Consider any allegations of: 1. Domestic violence and abuse as defined in KRS 403.720; or 2. An abused or neglected child as defined in KRS 600.020; committed by one (1) party against another party or a child of the par ties; and

(b) Make written findings on the record as to the impact, if any, of the allegations described in paragraph (a) of this subsection on the child.” The court shall, before considering any other custody factors, evaluate allegations of abuse and make written findings regard ing their impact on the child. The updated statute does not merely add another factor to a balancing test. It specifies an order of review and mandates written findings on one factor before any others are considered. Only after completing that analysis does the statute direct the court to consider the remaining best-interest factors. In addition, the statute uses the word allegations, not convictions or formal accusations. It contains the word impact, without a specific statutory requirement of proof such as counseling records or other mental health treatment. The statute further specifies that relevant allegations pertain to one party against another party or a child of the parties and uses the definitions of abuse and domestic violence found in other KRS sections. Of course, this language is

26 september/october 2026