Published Article

What Litigators Can Learn From Novelists

October 17, 2014

This article was first published on Law360.  

I’m a litigator, and a litigator’s job is to make juries understand their clients’ cases. Crafting an opening statement is critical to creating a storyline that jurors can grasp and into which the facts can fit. The ability to devise and deliver a powerful opening statement is the mark of a great litigator.

Jury trials in state and federal courts, however, continue to diminish, and many litigators today find that the bulk of their courtroom experience revolves around motion practice. Even if we’re ready to appear in the court to make outstanding presentations on the motions we’re filing or opposing, many judges now decide motions without oral argument. As a consequence, most litigators rarely get to take cases to trial. Rather, we write briefs and memoranda. Can experienced legal writers learn anything from novelists?

It is sometimes said that calling something “good legal writing” is a put-down, because if you have to modify “writing” with “legal” you’ve already defined it as less-than-clear prose. Maybe lawyers’ fondness for legalese — and our seeming inability to write without using it — stems from how law is taught. Our years in law school are spent reading cases, learning to decipher Latin phrases and obscure terms. Is it any wonder that law students graduate thinking that this is how they should write, since this style of writing is what they’ve been reading and what their professors use for instructional purposes?

John Grisham, Scott Turow, Brad Meltzer, Louis Auchincloss, Franz Kafka, Sheldon Siegel, Earl Stanley Gardner, Richard North Patterson — all best-selling novelists and all attorneys — never write their books in “legalese,” and litigators shouldn’t either.

So, what can we litigators learn from novelists?

First, like great opening statements in the courtroom, novelists know that they have to grab readers right from the start. No excess verbiage. No useless information. Novelists work hard to draw readers in and make them want to turn the page to find out what happens next.

For example:

“Justice? You get justice in the next world, in this world you have the law.” William Gaddis, “A Frolic of His Own” (1994).

“’He’s dead, Mike,’ the familiar voice says without the slightest hint of emotion. Even in the middle of the night, Rosita Carmela Fernandez, my ex-wife and current law partner, exudes calm professionalism. If we had demonstrated such reserve in our personal dealings a few years ago, we might still be married.” Sheldon Siegel, “Criminal Intent” (2002).

In contrast to these novels, which make you want to read more, many legal briefs are written in impenetrable jargon and begin with an introduction telling the court what it already knows — the name of the party and the purpose of the motion — using words that stem from the 18th century, such as “hereinafter.” Consider the following, taken from a memorandum in support of a motion for summary judgment in an actual case (with the names changed to protect both the litigants and the lawyer):

“Now into Court, through undersigned counsel, comes Conglomeration Inc. (hereinafter ‘Conglomeration’ or ‘Defendant’), which, pursuant to Local Rule 23.3, submits this ‘Memorandum in Support of Motion for Summary Judgment’ (hereinafter ‘Memorandum’) demonstrating that there are no disputed issues of material fact and that, after due proceedings, Conglomeration’s ‘Motion for Summary Judgment’ (hereinafter ‘Motion’) should be granted dismissing all claims of Fracturization Services Inc. (hereinafter ‘Fracturization’ or ‘Plaintiff’).”

Do you know any more, after reading this paragraph, than what is already contained in the caption of the pleading: “Conglomeration Inc.’s Memorandum in Support of Its Motion for Summary Judgment”? Is there really a need to define “Conglomeration”? Would the judge or the judge’s clerk possibly mistake a shortened name in the pleading for any other entity? Since the caption of the memorandum shows that it is being written to oppose summary judgment, why not start with the critical issues. Consider this alternative:

“It is not in dispute that, six years before this suit was filed, Fracturization’s vice-president wrote to Conglomeration’s sales manager that ‘we have had some problems with the size #353 valves you sold us; please cancel all further orders.’ Now, long after the statute of limitations has run, Fracturization has filed this suit seeking damages allegedly caused by the valves. The claims against Conglomeration are time-barred and this suit should be dismissed.”

In other words, we should approach briefs the way novelists approach their writing — finding methods to focus the reader’s attention in a persuasive way.

Second, novelists plan out the arcs of their stories — the key plot points, the key characters, and how to best tell the tale. Once this has been decided, novelists boil it all down into an “elevator” speech that describes their novel persuasively and causes others to want to read it.

Drafting an “elevator speech” forces a novelist to hone in on what is really important. Working up an “elevator speech” about a memo or brief can have the same effect. If we spend time thinking about the most important points we want to make and how to convey them in the most succinct and persuasive fashion, we’re more than half way to an effective opening paragraph that will set forth the pertinent facts and define the structure of our legal arguments.

Third, novelists avoid trite adjectives and search hard for exactly the right word instead of settling for a word that is merely adequate. Mark Twain said it best: “The difference between the right word and the almost right word is the difference between lightning and a lightning bug.”

Writers of briefs, like novelists, should avoid using words that don’t precisely convey to the reader what we intend. We can’t be like Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass”: “‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”

We can all write more cogent and persuasive briefs if we adopt methods that great novelists have internalized: craft a great opening paragraph, draft an “elevator speech” about the case before starting to write the brief, and use precise language to draw the reader in.

Michael Rubin is chairman of the appellate practice team at McGlinchey Stafford. His 2014 thriller, “The Cottoncrest Curse,” published by LSU Press, has been praised by Publishers Weekly as a “gripping debut mystery.”