10 Legal Writing Tips From Bryan Garner

Bryan Garner—in true Bryan Garner fashion—just emailed his edits for this post, as noted below. I hope this note meets his legal writing approval… — Ed.

bryan garner legal writing11 10 Legal Writing Tips From Bryan GarnerI first heard of Bryan Garner while clerking for the United States Attorney’s Office for the District of Minnesota. I was having a difficult time crafting an appellate brief on some case involving criminal fraud. My supervisor looked at me, pointed to his bookshelf and said, “Grab the red one.” He was pointing to Bryan Garner’s The Redbook: A Manual on Legal Style. As the saying goes, I would never be the same.

There’s little doubt that the man is a legal writing genius. Editor of Black’s Law Dictionary. Prolific writer of almost every book on legal style written in the last ten years (or at least the good ones), he now spends his time writing, interviewing judges about writing, and teaching lawyers how to write. I was lucky enough to join him for the latter on Tuesday for six hours as he schooled 40 Minneapolis lawyers in the fine points of “Advanced Legal Writing & Editing.”

I highly recommend taking Garner’s CLE yourself, or reading one of his numerous books on legal writing, but if you’re pressed for time, or want a few tips to tide you over until Garner next comes to your city with his LawProse CLE seminars, here are my top ten (paraphrased) takeaways from Garner’s “Advanced Legal Writing & Editing.” Agree? Disagree? Add your thoughts in the comments.

  1. You will never write as good well as you read, so read seriously and for technique. Subscribe to The New Yorker, The Economist, The New York Times and The Wall Street Journal. After you’ve completed your legal research, but before you write your brief, pause, sit down, and read an article in The Economist. Then write. It will be a good tonic to your style.
  2. Be a lawyer who clarifies and not a lawyer who obfuscates. Judges will trust your writing and you will win more often, even when the merits are not in your favor.
  3. Learn how to write proper English. Buy a dictionary, thesaurus, and a writing usage book (or two). If you’re not careful with your grammar, judges will wonder what else you are not being careful with.
  4. Challenge inadequate and inefficient legal writing dogmas like putting citations in the body of your writing and double-spacing legal briefs whenever possible and appropriate, but don’t push your luck and lose your job in the process.
  5. Write a letter on your business’ stationary stationery each day. If your handwriting sucks, work on that too. All Most literary people have a good hand.
  6. Don’t write it if you wouldn’t say it outloud out loud. A good brief should be able to stand up to a strong oratorical reading.
  7. Don’t bury your good content. It’s untrustworthy and ineffective. Emphasize and amplify what IS important in your writing. For example, on the first page of your brief clearly and concretely frame your legal and factual issues in a single paragraph no longer than 75 words that ends with the question mark.
  8. Find yourself a writing mentor or two. Find the best writers in your firm or department and gravitate towards them. Be careful – you can iron in bad habits as well as good.
  9. Write simply and clearly. No one should have to read a sentence twice to understand it’s its meaning, and you should always use the simplest word that means the same thing. If your reader was going to skip your word, sentence, paragraph or quote anyway, omit it from your writing.
  10. Don’t stagnate your writing. Work on multiple writing projects at the same time, so you can jump from one idea or style of writing to another. It will keep your mind fresh and you will be more efficient.

(photo: Thomas Hawk)

Lawyering Skills

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  • http://legalresearchandwritingpro.com Lisa Solomon

    I’m a big Garner fan as well. However, Garner’s view that citations should be in footnotes, rather than in the body of a brief (which you mention in point 4), is controversial.

    Like Justice Scalia (who co-authored Making Your Case: The Art of Persuading Judges with Garner), I believe that citations should be in the text because the weight of authority is integral to the proposition being discussed. As Scalia points out in Making Your Case, rather than making it easier to read briefs, putting citations in footnotes instead forces the reader to bounce back and forth between text and footnotes.

  • http://www.maslon.com Leora Maccabee

    Thanks for the note Lisa. Bryan showed us the video during his CLE of his conversation with Justice Scalia on exactly that issue.

    I’m torn. I agree with Bryan that footnotes clutter the paragraphs. Why should lawyers make things so difficult by making our work so hard to read? At the same time, I understand Justice Scalia’s point that the weight of the authority is what should be emphasized. However, Bryan’s response to that (in class) was that in the text one could write “In 1915, the United States Supreme Court held…” and then put the cite in the footnotes. That way, you still emphasize the authority without the clutter and the eyesore of all the numbers in 15 U.S. 121 or whatever.

  • Maureen P Kane

    Garner’s first point is so very true. It’s disheartening that many law students — and so many young people in general today — lack the desire to read lengthy literary works. If only high schools still required students to read books over the summer. If only more teachers corrected students’ grammar, punctuation, and spelling errors starting in grade school and continuing through college. Without the basic tools, it’s tough to build a house, no less a castle.

  • http://etc@ethicsmaven.com eric Cooperstein

    I’m a big Garner fan as well – I keep “A Dictionary of Modern Legal Usage” within arm’s reach. I follow his guidance to put all the citations in FNs. So far, the MN Sup. Ct. has not objected. Much cleaner. It’s difficult to structure a well-argued paragraph if the flow is interrupted by citations and parentheticals. On a double-spaced page in at least 13-point type, there aren’t going to be very many citations to search the FNs for. It’s a brief, not a law review article.

  • http://www.maslon.com Leora Maccabee

    Eric – That’s so great to hear that you use Garner’s citation method and haven’t faced problems as a result! I wonder if anyone else in Minnesota has been trying that method with success or the lack of it.

    Maureen – I completely agree, and I admit to being a younger lawyer who doesn’t read enough. My generation has grown up on bite-sized everything, from candy to news. After this week’s CLE, I finally signed up for a Minneapolis Star Tribune home subscription. Maybe I’ll sign up for the NY Times Sunday edition too!

  • http://www.hustlawfirm.com/ Bridget Hust

    As a young lawyer, I took Mr. Garner’s seminar, with my firm’s encouragement. The seminar was very eye-opening! It was great to learn that, as a transactional lawyer, I didn’t have to use the word “witnesseth”! However, I came back from the seminar, struck the word “shall” from my documents and modernized some other language in my forms, only to have some white-haired guy sitting in the corner office edit my documents to put all the outdated and unclear words like “shall” and “witnesseth” back into the documents. Change will come slooowwwwwwwly to legal writing, but I appreciate the effort.

  • http://www.rebeccaphalen.com Rebecca Phalen

    So glad to hear from other Bryan Garner fans! I also use Garner’s Modern American Usage and The Winning Brief every time I write a brief. I fall into the citations-in-the-footnote camp, and now using CTRL+ALT+F comes so naturally. I can follow my own argument better, and, as Garner has pointed out, it makes it much easier to edit the citations.

    But the most useful writing tool I’ve taken from Garner is your tip number seven–to frame the deep issue at the outset. Not only is it effective for the reader, but I’ve found that it helps me understand the precise issue better, pushing me a little harder to figure out what that ultimate question is for the court to answer.

  • http://www.torttalk.com Daniel E. Cummins, Esq.

    To paraphrase Justice Brandeis–there are no good writers, only good re-writers.

    Nice post. Always good to get reminders on writing tips. I also highly recommend Garner’s book with Justice Scalia called Making Your Case, which gives writing and oral argument tips.

    Daniel E. Cummins, Esq.
    Scranton, PA
    http://www.foleycognettilaw.com
    http://www.torttalk.com

  • Wes

    I suppose I take many of these issues for granted due to my undergrad experience in which I took a philosophical writing class that was taught by a professor who required us to purchase and read Strunk & White. I can still remember his policy of docking us a half letter grade for every two grammatical errors. However, I have no doubt that the vast majority of lawyers could benefit from focusing more critically on both their reading and their writing.

    I’m also curious regarding Bridget’s striking of the word “shall” from her documents. What word can be used to replace “shall” without changing the meaning? Just wondering.

  • Former Judicial Law Clerk

    I am generally a big Brian Garner fan, but I disagree with moving citations to footnotes. I have clerked at both the state and federal levels in Minnesota. While there is not a formal policy against citations in the footnotes, I assure you that the practice is almost universally disliked by Minnesota jurists (and their law clerks). Associate Minnesota Supreme Court Justice Paul Anderson, also a big fan of Brian Garner, frequently tells audiences not to footnote citations.

    Perhaps it is merely a matter of habit, but most judges and law clerks I have talked to think that footnotes make for a disjointed and frustrating reading experience. I personally have trouble with losing my place while checking footnotes. I also struggle with losing the train of thought as a result. Garner’s suggested fix, adding the case name, date, and court to each sentence asserting a legal proposition, is interesting. But doesn’t it seem a bit impractical?

  • Phil

    Daniel makes a very important point. Good writing results from ruthless editing. The best advice I ever received was to never, ever, submit anything that has not been through at least three rounds of editing.

    A motto of mine is, “I’ll know what I think when I read what I wrote.” Putting thoughts into written form necessarily refines those thoughts and I do not believe it can be done accurately on the first draft. Or second. Editing not only cleans up the syntax and grammar and spelling; more importantly, it is a vital step in clarifying one’s message.

  • James A. Shapiro

    Business’s, not business’. You should know better.