by Raoul Cantero
In my last column, I explained that most of what I know about legal writing I learned from my fiction writing professor. I concluded that most of the essential legal writing skills are simply skills about writing. My professor, Jerome Stern, taught me the importance of constant editing. The first draft should never be the last. I also learned that excellence does not come easily; it takes work. But it’s worth it.
But as I noted in my last column, Professor Stern taught me much more than that. I still use many other lessons I learned in his first fiction writing class. Years later, Professor Stern taught a course on legal writing, and published an article in the Florida Bar Journal. See Stern, “Can Lawyers Write English?”, 66 Fla. Bar J. 44 (Oct. 1992). In that article, he demonstrates how many of the skills used in writing fiction can be applied to drafting briefs. In fact, briefwriting is much like other writing; it is simply a different genre, like a haiku in poetry or a mystery novel or a newspaper article. It has certain constraints and parameters. It is a document meant more to persuade than to entertain. But like other writing, it must first and foremost maintain the reader’s interest.
In his Florida Bar Journal article, Professor Stern offers advice wellknown to a fiction writer: tell a story. In an appeal, that should be easy to do. By definition, every case is a story about parties who have a conflict with each other. In a fiction story, conflict — whether internal or external — is essential. In an appeal, it is handed to you. The court is interested in how this conflict arose, who the parties are, how the trial court resolved it, why the appellant disagrees.
Another fiction-related point Professor Stern makes is: note only the facts essential to the appeal. This advice is crucial, and is often ignored. Briefs regularly contain many more facts than are necessary for the appellate court to decide the issues. Sometimes this is a result of a desire for thoroughness—a party wants the court to know the background. Sometimes it’s because the facts are copied-and-pasted from a complaint or some other document where those facts mattered. But an appeal usually involves only a small part of what happened below. It usually does not matter that the complaint was filed on a certain day, that it was amended three times, that it asserted six causes of action when only one is the subject of the appeal, or that the parties engaged in months of discovery disputes before trial. The issues on appeal will dictate which facts are important now, as opposed to which facts were important at some point but have now lost their relevance.
Another point that Professor Stern makes is: use short sentences. Remember that when reading briefs, judges are just like the rest of us. They become readers. Readers get tired. Most lawyers write as if they were paid double for long sentences. I have seen sentences that are half a page long. That’s a lot to read before you take a breath. Short sentences not only seem more emphatic because they’re short; they also establish a rhythm with longer sentences, so that the brief avoids the monotony of consistency.
The next point Professor Stern makes is: read your writing aloud. Adopting that practice will help you avoid many pitfalls, including writing many long sentences. You will notice when words don’t go well together, when sentences are hard to get through, when a particular acronym you adopted doesn’t work as well as shortening a name. It is good practice for all writing.
Professor Stern’s final piece of advice: read and re-read The Elements of Style. I’ve heard this from many writers, lawyers and nonlawyers. When I returned to private practice and joined White & Case, I found a copy of The Elements on my desk. I wondered whether someone had read one of my opinions and was giving a hint. Then someone told me that the firm gave copies of the books to all new partners. Good idea. I re-read it. You should, too.
Professor Stern died several years ago. I had already become a lawyer, but not yet a judge. I never got to thank him for everything he taught me about legal writing. So instead I have tried to tell his story.