By Peggy Kirkpatrick
Peggy Kline Kirkpatrick is an adjunct writing professor in the Lawyering program at Mitchell Hamline, where she has taught for the past ten years. Her legal experience includes private practice in environmental, administrative, and land use law, and a clerkship at the Minnesota Court of Appeals. Peggy received her B.A., summa cum laude, in History from Middlebury College. She also holds a master’s degree in American History from Northwestern University. Peggy received her J.D., magna cum laude, from the University of Minnesota Law School.
Three years of law school and bar passage do not automatically make a lawyer a good, or even passable, legal writer. In fact, despite the strenuous training to become a lawyer, many continue to make the same writing errors they did when they were law students. The following legal-writing errors are all too common and should be addressed to avoid poor grades as a law student and poor credibility as a lawyer.
Writing Too Much
Law students are subject to word-count limits, and lawyers, too, face word-count or page-count limits for documents submitted to courts. If a student exceeds these limitations in law school, the student’s assignment will receive fewer points, and if a lawyer exceeds such a limit in a document filed with a court, the court may reject the document. Even if by some good fortune the judge reads your non-complying document, the judge will likely be irritated. Irritation is not the most desirable emotion for a judge to have while reading your filing. Also, just because a fifty-page brief is allowed does not mean that fifty pages should be the goal. United States Supreme Court Chief Justice John Roberts once joked that when he receives a brief shorter than the fifty-page limit, he will look to see who the lawyer is and say to himself, “Whoa, I like her.” Judges appreciate short, focused documents. They are busy, and an attorney should avoid adding to the judge’s reading burden without good cause.
Although it may be hard to part with any of your words, you will be more effective with a succinct product. Make sure that each sentence and each word in that sentence has a purpose; otherwise, eliminate them. In the same vein, avoid too many quotations from cases–some readers gloss over them, wanting to get to the lawyer’s own explanation and analysis. Use quotes where the court’s unique wording is especially convincing, but more often summarize the court’s words for the reader.
Including Too Many Arguments
In law school, legal-writing professors devise assignments where there are single issues or, at minimum, two or three issues. This is not done to shorten assignments for over-worked students; it is to train future lawyers to avoid preparing everything-but-the-kitchen-sink arguments. Once in practice, where there are no professors helping define the issues, many lawyers find it difficult to limit their arguments and will include too many issues in their briefs. This only confuses and potentially annoys the judge. Lawyers should put in time and effort to determine their most persuasive points, rather than forcing the judge to waste time winnowing out less effective arguments. Choose your best three or four arguments, and write them well.
IRAC is not just an organizational tool used by law students and then abandoned once in practice. The four-part organization system of issue (or introduction), rule, application (or analysis), and conclusion mirrors the way lawyers, including judges, think through legal issues. A disorganized document submitted to a court is not going to hold the same persuasiveness as one that lays out the argument in an easy-to-follow manner, which, at least for lawyers, means adhering to IRAC.
Good organization also means laying out a roadmap at the beginning of the document’s argument section to alert the reader to the general framework of the analysis to follow. At the beginning of paragraphs, use topic sentences and leading phrases to guide your reader through your writing and make it flow. Repeating similar phrases such as, “With respect to the rule’s first element” and “With respect to the rule’s second element” can make it easy for the judge to follow your argument.
Inaccuracy in the Law or the Facts
If a law student misstates the law, often the reason is because of a lack of understanding. Confusion about the law can also affect lawyers, but sometimes lawyers state the law incorrectly because of carelessness or haste. Lawyers, like law students, need to spend the time necessary to understand the law so that it can be expressed correctly. Be scrupulously accurate. The court is relying on you, as an officer of the court, not to misstate the law; if you do, your credibility is immediately tarnished.
Similarly, in the facts section, law students sometimes face a steep learning curve in appreciating the importance of details. For example, they may state dates incorrectly or sloppily describe a situation. Also, they may leave out facts that are important for consideration of the legal issues, or they may include irrelevant information. Lawyers usually have less trouble identifying key facts, but they, too, may state facts erroneously or include unnecessary details that distract the judge from the important facts requiring consideration.
Overly Strident or Overly Submissive Tone
Some students enter law school believing that all lawyers argue for a living, which translates into an argumentative tone in their writing assignments. While legal writing professors try to nip that tendency in the bud, some students choose to perpetuate a cantankerous tone in law school and beyond. In fact, the best legal writing avoids bombastic language and never personally attacks the opposing party or opposing counsel. Of course, treating the court poorly in your writing is even worse. According to Minnesota General Rule of Practice 2.03(a), as an officer of the court, a lawyer must “at all times uphold the honor and maintain the dignity of the profession, maintaining at all times a respectful attitude toward the court.” Thus, you should avoid telling the court what it “must” do; instead, make it clear what the court should do. On the other hand, you should avoid being too cautious, as a timid approach will imperil your ability to advocate for your client. Do not tell the court, “I think” or “I believe.” For one, the court does not care about your personal feelings, and second, the extra words diminish your persuasiveness. Strike those words, and let the rest of the sentence make a direct point.
Using Legalisms and Wordy Phrasing
Law students frequently like to experiment with words that sound “lawyerly,” when, in fact, lawyers who write well eschew words like “heretofore,” “above-mentioned,” “whereas,” and “herein.” Legal writing professors encourage students to replace terms like “said document” with “the document.” Legal concepts and arguments can be tricky, so simple and clear language is critical whether you are writing for your professor or for a judge. Precision and clarity not only help your reader understand your meaning but also make your point more persuasive. Write in a way that your non-lawyer cousin would understand. Avoid unnecessary introductory phrasing, like “It is important to note that.” Instead, make your point directly. Adverbs and adjectives usually do not help make a point and should be used sparingly.
Inconsistency in Word Choice
Law students sometimes like to vary the words used to refer to parties or recurring terms, perhaps assuming that variety is interesting, when in fact inconsistencies confuse the reader. Lawyers, too, should take care in choosing how to refer to a case’s key actors (such as the last name, “Plaintiff” or “the plaintiff”), and then stick with that term throughout the entire document. At first reference, use a person’s full name, and thereafter use the shortened version. Honorifics, like “Mr.” or “Ms.” are unnecessary, and eliminating them is another way to avoid exceeding word-count or page-count limits.
Typos, Misspellings, and Grammatical Errors
You may have slept through grammar lessons in high school English class, but both law students and lawyers ignore grammar rules at their peril. Misplaced commas, run-on sentences, and missing apostrophes are all too common both in law students’ and lawyers’ writing. Take time to follow the rules of grammar and also to check for typos or misspellings. As pointed out by the Minnesota Supreme Court, “Public confidence in the legal system is shaken . . . when a lawyer’s correspondence and legal documents are so filled with spelling, grammatical, and typographical errors that they are virtually incomprehensible.” Proofread, proofread, and proofread another time. Do not trust spell-check to find all errors. I encourage law students to print their documents, rather than only reviewing them on the computer screen, because they will notice more mistakes. It is worth the paper (just be sure to recycle it). I also tell students to read their writing out loud in order to catch errors. Mistakes distract your reader from your persuasive points, and they damage your credibility.
For law students, it is difficult to stress too much the importance of perfect citations. Many view the Bluebook as an annoyance and their legal writing professors as nit-picking. Some never lose their distaste for citations, and, consequently, even long-practicing attorneys may choose not to spend sufficient time on citations to make them right. This is a mistake; learn to obsess over citations. Judges and their clerks will immediately question a lawyer’s written product if there are even small citation errors, such as an incorrect reporter abbreviation or even a misplaced comma. The sense is that if a writer cannot get the details right in a citation, the writer cannot be trusted to state the law accurately or make a well-thought argument. You do not want your name as the attorney of record on an opinion where the court calls attention to poor citations in your submitted documents. Also, as was drilled into you as a law student, be sure not to leave out necessary citations. You need a citation for any statement of law, even if your sentence also includes argument.
Failure to Comply with Formatting Requirements
Just as in law school, where students are given assignments with a variety of formatting requirements, including font size and type, spacing, margins, and pagination, courts also set certain formatting rules. For example, the Minnesota Court of Appeals requires briefs to use a font that produces a minimum of 10-1/2 characters per inch. Another rule requires that briefs be double-spaced, “except for tables of contents, tables of authorities, statements of issues, headings and footnotes, which may be single-spaced.” Each court has its own formatting rules, so it is imperative to read them carefully, and multiple times, to ensure that you have not missed any detail. Failing to follow formatting rules may, for a law student, result in a lower score, and for a lawyer, result in a court’s rejection of the filing. In law, details matter in terms of both the substance of writing and its presentation.
Simply put, lawyers are writers. That means good writing is crucial to success for both law students and lawyers. Because clear thinking and clear writing go hand in hand, your legal arguments will improve through the process of drafting them. Accept that there are no shortcuts; good writing involves exertion. As Maya Angelou once stated, “Easy reading is damn hard writing.” You will be judged professionally on your writing, so it is worth putting in the time and effort to hone your writing skills and avoid common pitfalls.
 Rochelle Olson, Amid Political Turmoil, Star Trib. (Oct. 16, 2018), http://www.startribune.com/chief-justice-john-roberts-to-speak-at-u-amid-sharp-national-focus-on-supreme-court/497704461/ [https://perma.cc/G5UB-MV5Z].
 Minn. General Rules of Practice 2.03(a) (2015).
 In re Disciplinary Action against Hawkins, 502 N.W.2d 770, 771 (Minn. 1993).
 See Benford v. City of Minneapolis, No. 10-4539, 2012 WL 6200365, *2 (D. Minn. Dec. 12, 2012) (stating that the plaintiffs’ memorandum was rife with blank citations to the record).
 Minn. R. Civ. App. P. 132.01 subd. 1 (2019).
 Jeffrey M. Elliot, Conversations with Maya Angelou (1989) (interviewing Maya Angelou, who mistakenly attributed this quote to Nathaniel Hawthorne).