For Garner, King Cotton is the epitome of the ideal legal brief—it begins dramatically; it explores its themes; and it closes forcefully.
Garner is right to call legal writing a performance. And lawyers can learn much from the great composers.
In particular, lawyers can learn to compose striking introductions to legal briefs by emulating the style and structure of the four symphonic movements.
Introductions Carry Three Messages
An effective introduction does three main things to and for a judge:
- It rouses the judge.
- It gives the judge an overview.
- It tells the judge what to do.
A well-written introduction, then, is not unlike the beginning, middle, and final movements of a symphony, which often work together to convey one or more themes.
First Movement: Wake Up and Listen!
In The Art of Readable Writing, Rudolph Flesch stresses that to write well you “must put your reader in the right frame of mind; you must start by getting him interested in what’s to come.” William Zinsser puts it more bluntly: “The most important sentence in any article is the first one. If it doesn’t induce the reader to proceed to the next sentence, your article is dead.”
The great composers also understood the importance of grabbing the attention of their audiences.
Consider Beethoven’s groundbreaking Third (Eroica) Symphony. In the first movement—allegro con brio—Beethoven jettisoned the established structural conventions of the 18th-Century symphonies, which often began with either a slow introduction or an immediate principal theme.
The first movement begins abruptly with two chords in E flat Major, after which Beethoven introduces his first theme through the cellos (view right):
Defendants John T. Boring (hereinafter, “Boring”), Suzie K. Rote (hereinafter, “Rote”), and Paul J. Muddle (hereinafter, “Muddle”) (collectively referred to herein as the “Individual Defendants”), by and through their undersigned counsel, Long, Winded, and Writing, PLLP, collectively and jointly bring this motion to dismiss the First Amended and Consolidated Complaint (hereinafter, “Complaint”) of the Plaintiffs ABC Corporation, Inc. (hereinafter, “ABC”), MNO Corporation, Inc. (hereinafter, “MNO”), and XYZ Corporation, Inc. (hereinafter, “XYZ”) (collectively referred to herein as ”Plaintiffs Corporations”) under Federal Rules of Civil Procedure 12(b)(6) and 9(b). . . .
No doubt the caption listed this information. So why would a lawyer choose to begin a brief with a paragraph-sentence like this one? The answer is simple: The lawyer isn’t ready to write, and needs to warm up.
In contrast, here’s a first sentence to an introduction that grabs the judge’s attention, explains what the motion is about, and gives the judge a reason to keep reading. And it does all of these things in nine words:
Plaintiffs’ complaint could not violate more fundamental pleading requirements. . . .
The Middle Movements: Developing Themes
In the middle movements of his Third Symphony, Beethoven amplifies themes introduced in the first movement. The second movement is a funeral march—marcia funebre (adagio assai)—that explores complex, intertwining themes of both grief and consolation.
Hector Berlioz editorialized the second movement by observing that he knew “few examples in music of a style where sorrow has been so unfailingly conveyed in forms of such purity and such nobility of expression” (view below):
Much like the middle movements of a symphony, the middle of a well-written introduction gives the judge an overview of the arguments (themes) that the lawyer will develop later in the brief.
But some lawyers waste this opportunity too, preferring instead to give the judge more useless verbiage:
. . . It is well established that plaintiffs can only bring claims under a statute if they have a private right of action under the statute. It is also clear pursuant to the requirements of Federal Rule of Civil Procedure 12(b)(6) that plaintiffs must plead sufficient facts in their Complaint such that the Court can find that their claims are plausible instead of merely probable. Federal Rule of Civil Procedure 9(b) also requires plaintiffs to plead all of their claims that sound in fraud with particularity. In the paragraphs below, the Individual Defendants will compare the allegations in Plaintiffs Corporations’ Complaint to the letter and spirit of these rules of civil procedure. . .
Of course, the first paragraph-sentence above that contains information from the caption already told the judge that he’s reading a motion to dismiss under rules 12(b)(6) and 9(b). So this middle section adds nothing new. It is, as John Trimble likes to call it, an example of “The Art of Saying Nothing Profoundly.”
In contrast, the paragraph below gives the judge an overview of defendants’ main arguments by amplifying the principal theme introduced in the first sentence—that plaintiffs’ complaint “could not violate more fundamental pleading requirements”:
. . . Plaintiffs assert claims with no private right of action. Plaintiffs plead legal conclusions as a substitute for facts. Plaintiffs lump defendants together, blithely attributing allegations against one to all. And even if they had pleaded viable legal theories—which they have not—plaintiffs do not approach alleging their fraud-based claims with the particularity the rules require. . .
The Fourth Movement: Recapitulation and Finale
John Trimble quotes F.L. Lucas as saying that a closing—whether it’s at the end of a sentence or at the end of an essay—is “the climax, and during the momentary pause that follows, that last word continues, as it were, to reverberate in the reader’s mind. It has, in fact, the last word.”
The fourth movement—allegro con fuoco—of Antonín Dvorák’s Ninth (“New World”) Symphony is indeed an emphatic last word.
In the final movement, Dvorák reintroduces and synthesizes his principal themes, and ends with a bang:
But many lawyers end their introductions with a whimper, again giving the judge no inkling of what’s to follow:
. . . For all of the reasons set forth more fully below, the Individual Defendants respectfully request that the Court grant their motion to dismiss in its entirety.
This ending, in contrast, gives the judge a powerful impression of defendants’ view of plaintiffs’ case:
. . . The lack of viable claims lays bare the true purpose behind this action: plaintiffs wish to put defendants out of business, but seek to do so on the cheap. If plaintiffs thought defendants’ response to this lawsuit would be to shut down their businesses, they were sorely mistaken. The Court should dismiss the complaint in its entirety.
After reading this coda, the judge knows who is bringing the motion. The judge knows what the motion is about. The judge knows what arguments defendants will develop below. And the judge knows what defendants are asking him to do—dismiss plaintiffs’ complaint.
Emulate, Don’t Try to Imitate
In The Golden Book on Writing, David Lambuth says that writers can try to imitate the style of other writers, but will never succeed at it:
[T]rying to imitate another’s style is much the same thing as trying to disguise one’s identity behind a papier mâché mask that looks like Bernard Shaw or G. K. Chesterton. It might be amusing for a fancy dress ball, but only a lunatic would attempt to go about that way in ordinary life.
It’s true that musical composition is its own art form. It’s also true that the great works contain intricacies that lawyers wouldn’t want to imitate even if they could. But that doesn’t mean lawyers can’t improve their legal writing by emulating how the great composers enrapture their audiences.
If anything, that these long-dead composers live on through their works is evidence that they still have much to offer.