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MONDAY, MARCH 9, 2020 | SERVING CHICAGO’S LEGAL COMMUNITY FOR 164 YEARS | CHICAGOLAWBULLETIN.COM VOLUME 166, NO. 48 Good writing many times can be difference between a win or loss One of the most daunting understand what is at stake in upon the logical organization tasks for many attorneys is to the dispute and to persuade of the relevant material face a blank sheet of paper — the court to arrive at the out- within the framework of the or, nowadays, an empty com- come you desire. theme of your case. Set forth puter screen with an end- Here are a few general tips the relevant background lessly blinking cursor — and to keep in mind to help draft material and enhance the compose a persuasive and an effective and compelling credibility of the argument by compelling argument that argument. making specific citation to will win the day for the client. the evidence supporting your Although you have every- Tell your story position — i.e. to specific MODERN thing figured out so perfectly Everyone loves a good pages of the transcripts or to FA M I LY in your head, when it comes story, including your reader: trial exhibits — so that the down to actually writing it all The judge who will analyze court may easily find it and out, you may become over- your argument and deter- MICHELE M. JOCHNER confirm its validity. whelmed and find it hard to mine the outcome of your Then, analyze these facts know where to begin when case. Legal writing guru within the context of the con- faced with assembling stacks Bryan Garner interviewed MICHELE M. JOCHNERis a trolling authority, explaining of transcripts, exhibits, case members of the U.S. partner at Schiller, why the court should rule in law, rules and statutes into a Supreme Court to learn what DuCanto & Fleck LLP, after your favor. Don’t run from cohesive and persuasive they found most helpful previously serving as a bad facts or adverse law; argument — all with a fast- when deciding cases. (See, judicial law clerk to Illinois address these items head-on approaching deadline. lawprose.org/bryan-garner/ Supreme Court Justices and explain why the court Indeed, it is only by placing garners-interviews/ Charles E. Freeman and the should still rule for your your argument in written supreme-court-interviews/) late Mary Ann G. client. So, tell your story ... form that you can see prob- Their comments regarding McMorrow. She serves in and tell it well. lems with what you had pre- effective legal writing apply leadership positions with a viously thought out. The best with equal force to argu- number of bar associations More is not necessarily legal writing clearly sets forth ments made in both the trial and community better the relevant facts and applica- court and in the courts of organizations, is a frequent When drafting an argu- ble law, compares and con- review. lecturer and author on a ment, scrutinize every line trasts those facts to that In noting the importance variety of legal issues, and and ask: Why is it included? authority and methodically of telling the story of the has been an adjunct Is it necessary? What confu- leads the reader step-by-step case, Chief Justice John G. professor at DePaul sion or misunderstanding through the analysis to the Roberts Jr. observed: “When University College of Law might it cause? Can it be bet- final conclusion. the case is new, you want to and The John Marshall Law ter written? An argument An argument that is well- learn what it’s about, and School. She can be reached should express ideas as accu- researched, well-written and there’s nothing better than a at mjochner@sdflaw.com. rately, briefly and clearly as easy to follow will greatly well-written brief, and it kind possible, leaving little room improve your chances of per- of carries you on. You want to story, you know you’re not for unintended interpreta- suading the court and achiev- learn more. You want to see getting the full story, you tions or guesswork on the ing a victory. Remember, you what the other side has to know there’s more to it than part of the court. are the expert with respect to say. But it can also be quite a that and it’s a struggle to get With that being said, also the facts and law in your case. downer to pick up a bad brief to the result.” do not fall into the trap of Your role is to use that in a case, and you know The ability to clearly convey believing that a longer expertise to help the court you’re not getting the right your client’s story depends presentation is a better one Copyright © 2020 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.— oftentimes, the opposite concept when he said: “I did- remember Abraham Lincoln’s “Or we don’t see exactly is true. In Roberts’ words: “I n’t have time to write a short sound advice: “Leave nothing how the statutory language have yet to put down a brief letter, so I wrote a long one for tomorrow which can be works together to support and say, ‘I wish that had instead.” done today.” you, because you haven’t been longer.’ So while I Writing a succinct argu- adequately explained that. Or enjoy [reading briefs], there ment covering all key points Bad writing can lose a strong even simple things: You isn’t a judge alive who won’t requires more effort than case haven’t put it in there. You’re say the same thing. Almost writing a longer one that is Finally, be aware that what telling us about why it should every brief I’ve read could not focused, edited nor pol- appears to be a slam-dunk be read this way when we be shorter. ” Focus on what ished. In the initial drafts, winning case may neverthe- haven’t even seen it yet. is most important and cut most of us succeed in only less be lost if you cannot “I’ve seen briefs like that. out portions that are unnec- getting our ideas out of our clearly convey the strength of You know the statute should essary and which may head and onto paper, often- your position. As Roberts be read [like] this . . . Well, for detract from your central times in an imprecise and cautions: “[I]f it’s bad writing, goodness sakes, what does it focus. wordy narrative that requires we may not see that you’ve say? Let’s start with that. ... extensive revision and editing got a strong case. It’s not And if the lawyers don’t write Start drafting early to say exactly and only what that, oh, this is poorly writ- clearly enough to convey the Although this seems we intend. ten, so you’re going to lose. arguments, it’s going to be counter-intuitive, a longer As we journey through the It’s that it’s so poorly written very difficult for us to get the argument may be a result of drafting process, new that we don’t see how strong case right.” waiting until the last minute research and progressive rea- the precedents in your favor No clearer words can be to begin drafting and then soning may also require sev- really are, because you spoken to underscore the running out of time. Mark eral changes in the direction haven’t conveyed them in a importance of crafting a clear Twain perfectly captured this of the writing. Therefore, succinct way. and compelling argument. Copyright © 2020 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.