The Curse of Legal Knowledge
Legal writing doesn’t have to be dull and boring. Leverage your writing to create engaging legal documents that capture your reader’s attention and make your point.
The curse of legal knowledge. Sometimes we call it advocacy bias here at Write.law. You’ve been living and breathing this issue for weeks (or longer). You know it backwards and frontwards. So what often happens? You forget that once you’re an expert, it’s really hard to remember what it was like to be a newbie.
This disconnect between lawyers who are experts in their cases--and audiences who are not—is to blame for many major writing pitfalls. Cursed with deep knowledge and insight about the issues, legal writers often fill their writing with jargon, forget to offer basic context new readers need, and generally abandon readers to piece everything together.
Let's explore a few tools that will help you fight to reach your readers where they are coming from, instead of your vantage.
Define or Explain Terms
If you’re using a term that you aren’t sure every legal reader will instantly understand, take a moment to define it. This is true for legal terms as much as it is for terms that come up in your facts. Jargon, terms of art, and frankly any long or unfamiliar word can often use a quick definition. Of course, if you can cut these esoteric terms in the first place, all the better.
Here’s Justice Kagan being the ever-helpful definer, breaking down some math for her readers in simpler terms:
Say you need to relay to readers that a fight broke out at a prison on June 1st and that one person, the defendant, was seriously injured. Those are the legally-relevant details you must include for the analysis to make sense. You have three options.
“That is a mouthful. So again, in general terms: The numerator is the number of patient days attributable to Medicare patients who are poor. The denominator is the number of patient days attributable to all Medicare patients. Divide the former by the latter to get the fraction ’expressed as a percentage.‘“
Offer Layman Recaps When Helpful
When you’ve forced readers through some dense concepts or details, it’s often helpful to give a quick recap that simply summarizes the complexity. This gives your readers a confirmation that they got out of the section what they should have.
Take this snippet, penned by a federal appellate judge. Readers had just run a gauntlet of legal exposition, including lengthy explorations of two key cases. The author thought readers could use a quick recap of what they should have taken away. You can't get much better than doing some simple synthesizing so readers don’t need to work so hard.
“If we consider Maciolek and Spencer together, what emerges is a workable standard for judges and juries to evaluate: The act must warrant alarm in a reasonable person for the safety of others.”
Here is Justice Kagan masterfully recapping the takeaway from a series of longer case expositions—with the added bonus of teeing up the key issue for readers:
“In each [of the above cases], the Court observed that using a different method required no change in the State’s statute, but only a change in an agency’s uncodified protocols. Here, all parties agree that Georgia would have to change its statute to carry out Nance’s execution by means of a firing squad. They dispute whether that fact switches Nance’s claim to the habeas track.”
Fresh readers usually need you to start at as high a level as you can. In your introduction and first pages of your document, that means literally “why the heck are we even here?” When you get to specific sections, including your facts, take the same approach.
Start by orienting readers to each situation or issue from the highest level. Then quickly guide them to what matters.
Federal Judge Jennifer Dorsey is a pro at this high-level orientation that readers love: Not procedural details or in-the-weeds legal standards, but the simple background of a person purchasing a home and buying insurance for it. Then the judge quickly guides us to what matters—the particular policy clause everyone’s fighting over.
When Teresa Sivil purchased her Eagle River, Alaska, home in 2014, she entered into an insurance agreement with Country Mutual Insurance Company through its Alaska broker, Melissa Izzat Insurance Agency, LLC (MIIA). That policy covered the peril of sudden and accidental water damage. When Sivil moved to Nevada three years later, she contacted an MIIA representative to remove personal-property coverage from the home policy. Allegedly without Sivil’s knowledge or consent, the representative also removed coverage for sudden and accidental water damage. When a pipe broke at Sivil’s Alaska home the following winter, she submitted the claim to Country Mutual, who quickly denied it, citing the modification of the policy to remove coverage for water damage. Sivil sues Country Mutual for breach of contract, breach of the implied covenant of good faith and fair dealing, and violations of Nevada’s unfair-claims-settlement-practices statute.
Consider the path most writers would take here. Most would have dived deep from the start, beginning with something like:
Defendant Country Mutual Insurance Co., moves for summary judgment on the grounds of breach of contract and lack of evidence to support bad faith claims...
Yes, the judge’s version uses some more real estate. But a paragraph of orientation will be oh-so-welcome for new readers.
Give Readers More Context for Key Points
Your key points, whether in the law or the facts, can often benefit from some favorable context or priming. Tell readers why the point matters. How the point fits into the overall case or argument. In short, give readers helpful context for them to extract what they need from your main points.
SCOTUS regular Paul Clement and his team offer a great example of context at work. Clement’s team was arguing about a complex procedural issue and wanted to offer some context for why their interpretation was the better one. So before getting into the weeds, these writers offered some context for why, practically, protective notices of appeal work as they do:
“Protective notices of appeal play an essential role in preserving appellate rights when a party seeks to appeal a district court order of uncertain appealability. In such circumstances, litigants are not forced to forgo good-faith objections to appealability in order to pursue an appeal on the merits. To the contrary, as officers of the court, would-be appellants are duty-bound to notify the appellate court of potential jurisdictional defects. The solution to this potential dilemma is straightforward: Appellants in such circumstances are advised to ‘consider a protective appeal.’”
Give Readers Framework Before Details
Finally, strive to always give readers roadmaps and frameworks for all the main points you’re going to deliver. Start with your introduction, but the same goes for every major section in your document.
Give readers the big-picture storyline before all the details. Give readers the key rule concepts and elements before all the authority. Offer your overall pitch for the document before all the dense sections.
Justice Kagan often offers these frameworks in her introductions and throughout her documents. For example, in this intro to a short opinion, she offers all the major legal concepts in two paragraphs. Now when folks read the meat, they already have a simple framework of the law to help them categorize the pieces:
“To prevail on [method of execution claim], a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain. In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States.This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim. We have held that such a claim can go forward under 42 U. S. C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law.”
Write.law co-founder Joe Regalia combines his experience as both practitioner and professor to create exciting new ways to teach legal skills. Learn more about Joe
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