CBA Record January 2019

CBA CLE PROGRAM“WRITING FOR YOUR AUDIENCE” A Mindful Approach to Legal Writing

By Anne Ellis CBA Record Associate Editor N ot all lawyers fully embrace the concept of mindfulness in the practice of law, but Prof. Kathleen Dillon Narko reminded participants in a recent CLE program that all lawyers would do well to be more mindful in one crucial area of their profession: writing. Lawyers communicate most often in writing. Whether the audience includes clients, courts, or colleagues, Prof. Narko gave practical advice for how to make any written communicationmore clear, concise, and well-organized. Numerous before-after examples and alternatives debunked the belief that dense, verbose writing is necessary in legal writing. The program was far from a dry rehash of grammar–in fact, none of the examples pre- sented were grammatically incorrect. What all had in common, though, was that they demonstrated the power of well-chosen (one might say, mindful) words. Many practitioners are embracing a more direct, journalistic style of writing. This is all to the good, says Prof. Narko, because one goal should be to “make it easy on your audience.” A bonus of writing more concisely is that it often leads to greater clarity. Just a few tips include: eliminate “there is/there are”; “it should be noted that”; nominalizations (verbs masquerad- ing as nouns); and puffed-up words such as “utilization.” Writing in active voice rather than passive usually achieves both concise-

ness and clarity, but being more mindful about writing also means recognizing there may be a time for passive voice. Thus, it may be more strategic for a defense lawyer to write, “The dog was hit by three shots,” rather than “My client pumped three slugs of lead into Fluffy.” Moving on from these fundamentals, Prof. Narko observed that while good legal writing must be concise and clear, it can also be engaging and elegant. How to do this? The essentials include varied sentence structure, voice, tone, pathos, and applied storytelling. She also raised the question of whether the esthetic qual- ity of elegance found in great briefs and opinions is necessary for all good legal writing. Time, of course, is a factor to be weighed here, which again points to the issue of mindfulness in legal writing. The program then turned to another essential for clear writing: organization. Seasoned and novice lawyers alike often struggle with structure. Prof. Narko offered the TREAC system as a starting point to help attorneys structure their analysis (see Oct 2004 CBA Record ). TREAC is an updated version of the IRAC tool (issue- rule-application-conclusion) and stands for: T: Topic sentence; R: Rule; E: Explana- tion; A: Application; C: Conclusion. TREAC’s simple structure for legal arguments can accommodate sophisticated issues. And after drafting is complete, performing a “TREAC check” will help determine whether arguments are direct and straightforward.

The program is also available as a CBA CLE on-demand webinar. Go to www.chicagobar.org for more information. Recommended resources went beyond Strunk & White’s classic “Elements of Style” and included legal-specific works, particularly Richard Wydick’s “Plain Eng- lish for Lawyers.” The program also offered advanced strat- egies for writing strong leads, editing effectively, and proofreading. For the lead (itself a journalism term), a journalistic mindset will help eliminate non-essential preliminaries and ensure that the writing doesn’t bury the main point. After drafting is complete, effective editing is as crucial to the final product as the draft itself. How much time to devote to editing? Ideally, “as much time as it took to write.” This is not always possible, but a good editorial review will take place in layers, focusing separately on the lead/thesis paragraph; the conclusion (does it match the road- map in the thesis?); paragraph structure; transitions between issues; conciseness at macro and micro levels; clarity; citations (if applicable); and, finally, proofreading. The program concluded with some timely thoughts on language change (e.g., pronouns and gender neutrality), with a recommendation to “write for your audi- ence,” which in the legal sphere is typically more conservative.

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