Guest post by Thomas Villecco.
Once upon a time, lawyers, bred on a steady diet of the old, dense, and turgid legal opinions that law students today still must trudge through as some sort of right of passage, relied purely on logic to advocate for their clients. But, ever since legal writing expert Bryan Garner began urging lawyers to write in clear, direct prose — and, in doing so, to essentially discard much of what they learned in law school about legal writing — there has been a growing movement toward the use of the narrative style in legal writing.
Many who have adopted the narrative style in their writing — Garner being the notable exception — often say to younger lawyers or law students to “tell the client’s story,” or “let the facts show why your client should prevail.” These are not suggestions, but goals for how the final product should read. Lawyers are left to figure out how to reach that goal on their own.
Why storytelling is important
Why should a lawyer learn how to craft an engaging story? The reason is simple: stories — and the themes they contain — are the principal mode by which we communicate ideas. A brief anecdote will illustrate the point. One evening, I was watching television when I saw an advertisement. The advertisement played the sentimental tear-jerker “My Life,” by The Beatles. With this weepy song playing in the background, the ad depicted a small boy jumping up and down on the bed, a mother nuzzling her newborn on the bed, a young girl sleeping with her puppy on the bed, and, at the end, a bride sharing a sentimental moment with her mother while they sat — you guessed it — on the bed. Only when the ad ended did I realize I was watching a mattress commercial.
Even when selling something as pedestrian as mattresses, modern-day advertisers understand the importance of appealing to universal themes. This is what stories do. Indeed, movies are an integral part of our common culture because they reveal themes that transcend race, sex, and socioeconomic status.
Though Madison Avenue understands how a compelling narrative can move an audience to action is such a powerful persuasive tool, the legal profession has been slow to catch up to the times. This, despite the fact that, in litigation, the ability to persuasively present your version of the facts — or, in other words, your client’s story — is absolutely critical to achieving a successful result. Indeed, at the trial level, judges have broad discretion in a wide variety of rulings. Regardless of their judicial philosophy, judges are, in large part, keenly aware of the weighty responsibility bestowed on them. In discharging that responsibility, judges desire confirmation that they exercised their discretion in a way that tipped the scales just a little bit closer toward justice.
Litigating at the appellate level also requires an equally adept ability to persuade judges on the facts. The applicable law on appeal is usually settled, with the parties devoting much of their energies to convincing the court that the facts fall into one line of cases versus another. As Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit said:
There is a quaint notion out there that facts don’t matter on appeal — that’s where you argue about the law; facts are for sissies and the trial courts. The truth is much different. The law doesn’t matter a bit, except as it applies to a particular set of facts.
Since most appellate court cases are decided on the facts, the ability to tell a compelling story, and how that story fits within the legal framework, becomes paramount. You must convince the court that a ruling or decision in your client’s favor is not only legally correct, but comports with basic notions of justice, due process and fair play. With this in mind, you should strive to convince the court in the factual summary that your client deserves the requested relief. Your legal argument should merely confirm that the relief you request has legal support. The following are just a few tips to help you accomplish just that.
Identify the theme
I was once a prosecutor where I practiced in appellate litigation, and the themes in my cases jumped out from the record. In one case, the defendant shot and killed his wife’s sister because, as he saw it, the sister had routinely interfered with his marriage. In another, the defendant shot and killed the victim after the victim refused to give the defendant his leather jacket. Like a Law & Order episode, jealousy, greed, control, and selfishness were just a few of the themes in my cases.
But, how do you identify a compelling theme when the dispute is between Corporation X and Corporation Y on an exceedingly dry and complex issue of contract law? Luckily, Chief Justice John Roberts has shown how you can extract powerful themes from just about anywhere.
Before his elevation to the Supreme Court, Chief Justice Roberts was regarded as one of the best — if not, the best — of the Supreme Court bar. He was — and still is — a profoundly skilled writer, who more than anything else, placed a premium on storytelling,a skill which he put on full display in Alaska v. EPA, 540 U.S. 461 (2004). As the caption suggests, the case appears far from interesting.
But, as Roberts demonstrates in his brief on behalf of the state of Alaska, this is not as a difficult as you might think. Consider what prompted the lawsuit. Adhering to the Clean Air Act, the State of Alaska, before it could commence construction of a generator near protected land, conducted an extensive review process to identify the best available control technology (“BACT”) to control emissions, a process which, in the end, undoubtedly cost the state an untold amount of money and time. Ultimately, Alaska selected what it considered the BACT after which a federal agency located some thousands of miles away swoops in and essentially says, “No, you can’t build this plant because we think you could have selected a more effective solution to control emissions. Sorry. Try again.” Thus, a federalism theme pervaded the record, one that figuratively shouted out, “Look, we Alaskans can handle ourselves, thank you, and you, the EPA, have no right to second-guess what we can or cannot do.” But, even larger than the federalism is the notion that the EPA second-guessed a well-informed decision made by the state. And, this theme, Roberts likely realized, is one that would resonate, for we all know how frustrating it can be for a boss, parent, spouse or relative question from afar an informed decision we’ve made.
Roberts weaves the second guessing theme to drive home his argument that “the EPA had no authority to invalidate a state BACT determination that is based on consideration of the statutory factors.” In fact, Roberts wastes no time, putting it right up front in the issue statement:
Whether the Ninth Circuit erred in upholding the EPA’s assertion of authority to second-guess a permitting decision made by the State of Alaska—which had been delegated permitting authority under the Clean Air Act, 42 U.S.C. §§ 7401 et seq. — in conflict with decisions of this Court and other federal courts of appeals establishing the division of federal-state jurisdiction under the Act and similar statutory programs.
In the introduction, Roberts continues:
The EPA, however, “disagree[d]” with the State’s decision to select Low NOx, rather than SCR, as BACT for the new generator. J.A. 97, 118. Rather than challenge the State’s decision through the available state review process, the EPA issued a series of orders prohibiting the construction of the generator. The EPA, however, had no authority to do so. Because BACT is “key” to the States’ ability to “manage their allowed internal growth” under the CAA, Alabama Power Co. v. Costle, 636 F.2d 323, 364 (D.C. Cir. 1980), Congress decided to make the determination of BACT “strictly a State and local decision.” S. Rep. No. 95-127, at 31. Nothing in the Act gives the EPA the authority to override a State’s discretionary judgment as to what constitutes BACT for a particular source.
The lesson from this example: every dispute — even ones between a state and a federal agency — is a story of human conflict. And, whenever there is a conflict, there is a story to be told. To identify that story, step away from the tangled web of case law, statutes, and regulations. It is all too easy to get bogged down in the legal minutiae when every hour of research uncovers yet another case or another statute that just seems to further cloud your understanding of the issue. Still, step back, and consider what the lawsuit or action is really about. Look at the big picture, and identify the overarching theme of the lawsuit. Weave that theme throughout your brief. The theme will serve as the glue that will tie all your arguments together.
Build on your theme in the factual summary. For example, in a breach of contract dispute between a corporation and its distributor, search the record and identify how the unfulfilled promise harmed the client. Were workers laid off? Was a product delayed or unable to come to market? If you represent a corporation being sued for manufacturing an allegedly defective product, briefly describe the product, and show how it has benefitted consumers. Detail the steps the employees made in ensuring that an accident would not occur. Outline the alternatives to designing the product the company considered, and the reasons why those designs were not pursued. Every lawsuit has a theme and it is incumbent on the lawyer to mine the record and extract the theme that places an otherwise dry legal dispute in a more accessible and relatable context.
You’ve identified your theme, and outlined the facts and argument. The next step is to put pen to paper. Here, you should remember that the first few sentences are where you will engage or lose the reader. So, if you remember only thing from this article, remember this: never begin your brief by reciting a procedural history larded up with dates and acronyms. This is not how a good writer begins a story. Think about the books you probably read as a child:
“Twas the night before Christmas, when all through the house, not a creature was stirring, not even a mouse.”
— Clement C. Moore, Twas the Night Before Christmas (1823)
“In the great green room, there was a telephone, and a red balloon, and a picture of…the cow jumping over the moon.”
— Margaret Wise Brown, Goodnight Moon (1947)
As you grew older, you read literature. Recall the opening sentence from those books.
“Happy families are all alike; every unhappy family is unhappy in their own way.”
— Leo Tolstoy, Anna Karenina (1877)
“It was a bright cold day in April, and the clocks were striking thirteen.”
— George Orwell, 1984 (1949)
“Stately, plump Buck Mulligan came from the stairhead, bearing a bowl of lather on which a mirror and razor lay crossed.”
— James Joyce, Ulysses (1922)
These openings snap the reader to attention, and you should employ the same technique when writing the first few sentences of your factual summary. Unfortunately, though, many attorneys open their brief with a whimper. Consider how many briefs start thus:
On April 1, 2013, plaintiff George Walker (hereinafter “plaintiff”) commenced the instant action to recover damages for personal injuries he suffered as a result of slipping and falling on a hole in the sidewalk owned and maintained by the defendant City of New York (hereinafter “defendant”). Plaintiff moved for summary judgment on the issue of liability. In a decision and order, dated May 1, 2013, the lower court denied the motion. Walker filed a notice of appeal on May 5, 2013.
By defining terms that are self-explanatory — plaintiff, defendant, City of New York — the reader is forced to pause, and the parentheses serve as a sort of a speed bump. It also tells the court nothing about the plaintiff’s theory of the case other than that the plaintiff was injured in an accident. Similarly, the dates are largely irrelevant and fail to move the story forward. And, most importantly, the passage is dull. There is a story here — remember, a lawsuit is a dispute and a dispute is the key ingredient to any story — but it’s pushed aside by a boring recitation of procedural history. Rephrase and present the facts into a narrative:
On April 1, 2013, plaintiff George Walker, a twenty-five year old delivery driver for Food R Us, was walking to the company’s warehouse, located at the corner of First Street and Second Avenue. Walking his normal route, Walker turned the corner on Second Avenue, and noticed construction vehicles and workers performing work on the sidewalk, which had been roped off by yellow tape. Walker stepped into the street, around the yellow tape, and proceeded on his way to work. Unbeknownst to him, however, the city failed to rope that portion of a hole that extended out from the sidewalk and into the street. As a result, Walker stepped into the hole, causing him to fracture both his shins and to miss six months of work.
Armed with this undisputed evidence establishing the city’s liability, Walker moved for summary judgment on the issue of liability. Yet, the court denied the motion. In doing so, it relied on an unsworn affidavit by a city employee who had no personal knowledge of the circumstances surrounding the incident, and who self-servingly asserted that the portion of the street where the hole lay was actually a driveway owned by the neighboring laundromat. Though the city employee’s statements were little more than rank speculation, the lower court found an issue of fact on the issue of liability, and ordered a trial. This decision was error. This Court should reverse, and direct summary judgment in Walker’s favor.
By using the narrative style, the writer can step beyond merely showing that a legal error occurred, and impress on the reader that the error denied the client a fundamental legal right, thereby prompting the court to take remedial action.
Show, don’t tell
The preceding example follows a basic rule of storytelling: show, don’t tell. A persuasive narrative refrains from explicitly stating the client is deserving of sympathy. The reader has the prerogative to make a decision on where to place his sympathy. By dictating his choice, you’d be essentially invading the reader’s personal space. Instead, let your facts do the talking, as in the example above. The reader will have no choice but to latch on to the inescapable inference you wish to convey.
For an example, return to Roberts’ brief in Alaska v. EPA. Notice how Roberts does not directly say that his client was railroaded by a federal bureaucracy. Roberts takes a more subtle approach by lining up the key facts and applicable law in such a way that we can only draw the inference that the client suffered an injustice. First, Roberts announces an undisputed rule of law: “[b]ecause BACT is ‘key’ to the States’ ability to ‘manage their allowed internal growth’ under the [statute], Congress decided to make the determination of BACT ‘strictly a State and local decision.’” Then, he states that the EPA prohibited construction, and asserts that nothing in the statute gives the EPA the authority to question a discretionary judgment on what constitutes the BACT for a particular source. Even for those skeptical of Roberts’ argument, the reader can feel just a little sympathy for the state of Alaska, which did all it could do under the law and was still prohibited from constructing the generator.
And, even though he is representing the appellant, Roberts does not take the Ninth Circuit to the proverbial woodshed for holding against his client, a frequent temptation for many lawyers who are appealing from an adverse decision. In fact, Roberts makes no mention of the court’s holding until he recites the procedural history, and even then he abstains from taking potshots at the court’s decision. By discussing the Ninth Circuit’s decision in a neutral manner, Roberts keeps the story between where it belongs: between Alaska and the EPA. The lower courts are merely a neutral character in Roberts’ narrative.
Keep it simple
Avoid nominalizations, which are nouns formed from other parts of speech, i.e., where form becomes “formation;” “indicate” becomes “indication,” and “object” becomes “objection. Nominalizations are a tried and true way to make one sound smart. But, the purpose of legal writing is not about making the author feel smart, but about engaging and convincing the audience. And, here, your audience is a judge, a panel of judges, or an overworked law clerk. Unlike the average reader, they are only reading your brief because, quite simply, it’s their job. This audience, starved as they are for time, needs to be engaged more than the average reader, who may only read a book or newspaper on a plane to pass the time. Avoiding nominalizations are one way you can allow the reader to quickly digest your story.
Second, use short sentences in the active voice. Think how a friend might tell you a war story over drinks:
So, you’ll never believe what happened today. I was trying a slip and fall case today. At the close of evidence, my adversary said he would call a rebuttal witness. He made up some half-baked theory that I opened the door to my client’s prior bad acts. But, he’s wrong…
This is how people tell stories, and you should take the same approach to your writing. But, again, think about how many briefs read like this:
Counsel raised an objection to the admission of the contract into evidence. Counsel was of the opinion that formation of the contract was not a disputed issue in the trial.”
The heavy reliance on nominalizations and the verb “to be” sucks all the action from the story. It seems like nothing is happening here. But, something is happening here. This is a trial after all. The problem lies in that the action is buried under a mountain of verbiage that reads like the terms and conditions of a cell phone contract. Write instead:
Defendant offered to move the contract into evidence, but plaintiff objected. He claimed that the issue of whether the parties had entered into a valid, enforceable contract was irrelevant to the issue at hand.
Simple, direct sentences in the active voice will give your story life, and will help the reader glide along your story.
A final suggestion
To write well takes an incredible commitment of time and effort. The finalizing of an initial draft is often just the start of a seemingly endless process of editing and re-editing. In this regard, achieving excellence as a writer underscores what Malcolm Gladwell asserted in Outliers, that it takes 10,000 hours of constant practice before one can achieve expert proficiency in a particular skill set. But, whereas an athlete can only learn so much about fundamental skills from studying film, the budding writer can learn a whole lot off the field.
Studies have consistently shown that a person can improve their verbal skills through reading, and even more so by reading good writing. This is great news for anyone who wants to polish their writing skills. You can essentially “practice” you craft on your free time. Whenever and wherever you are reading — on your commute, before you go to sleep or at the beach — you are practicing your writing. You don’t need to read Shakespeare or Dickens. Read the New York Times, the Wall Street Journal, The New Yorker, The Atlantic, the Economist, or any publication known for good reporting and long form non-fiction. By consistently reading smart, accessible, quality prose as part of your lifestyle, you’ll kick just enough of the legal out of your legal writing and excel at the narrative style.