Making Your Point: A Practical Guide to Persuasive Legal Writing

367 Pages·2007·23.127 MB·English

by  Kenneth F. Oettle

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MAKING YOUR POINT
A PRACTICAL GUIDE TO PERSUASIVE LEGAL WRITING
byKennethF.Oettle . 7, ,L‘..._....¢ , .
Are your briefs as compelling as they could be? Are you using the written word to your
best advantage? This valuable guide, based on four years of columns that appeared In ~
the NewJersey Laournal, equips you with a complete strategy,f rom choosing a theme
for your brief to driving the point home.
FIELD-TESTED SOLUTIONS FROM A PRACTI CING ATTORNEY
Each chapter is like a miniature writing workshop, and each concludes with an exercise
designed to sharpen your skills. Get case-winning advice on:
- Making a good first impression on the reader
- Showing why your side deserves to win
- Deciding when to lead with your point and when to lead up to it
- Developing momentum in a brief
- Writing headings that persuade
- Grouping ideas and using transitions effectively .
- Characterizing facts to help the reader see things your way
- Taking control of your quotations
- Choosing the best facts and the most telling words
- Tightening your work through omission and compression
‘ - Embedding key details and arguments in your reader’s brain
' Avoiding language usage errors that can blemish your case
- Teaching lawyers to write and evaluating their work
You’ll learn how to build unassailable logical chains using structures that provide the best
flow and strongest emphasis. Filled with insight, this unique handbook will help you mas-
ter the composition proceSs and change the way you think about legal writing.
About the Author
Kenneth F. Oettle is a graduate of Cornell University and Harvard Law School and a
partner in the Newark, New Jersey office of Sills Cummis Epstein & Gross P.C., where he
chairs the firm’s writing program. His columns appear regularly in the New Jersey'Law
1 Journal, the Texas Lawyer, other legal publications nationwide, and on Law.com.
name voua POINT. PRACTICAL GUIDE TO PESUASNE LEGAL warms USA $29.95/CANADA $40.95
. FEM-13: 970-1 53352-1354 LAW/WRITING
ALM PUBLISHING
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Making Your Point
A Practical Guide to
Persuasive Legal Writing
9 . .
Kenneth F. Oettle
[Member qf New firm and California Bars
Copyright © 2007 ALM PrOperties, Inc,
ALlVI Publishing, a division of
ALM hledia, Inc.
www.1aweatalog.com
All rights reserved. N o reproduction of any portion of this book
is allowed without written permission from the publisher.
The information contained in this book is for infor-
mational purposes only and is not intended as legal
advice or any other professional service. Persons
seeking legal advice should consult with an attorney.
Cover Design: E/m’n Se‘eland
Interior Page Design: Paige Him/:18
Library of Congress Cataloging-in-Publication Data
Oettle, Kenneth F.
l\/laking your point : a practical guide to persuasive legal waiting /
Kenneth F. Oettle.
p. cm.
ISBN 978-1-58852-135-4 (pbk.)
1. Legal composition. 2. Law—United States~Language 3. Law_United
Statcs- h/letl’iodology. I. Title.
KF250.0S84 2007
808106634 - ~dc‘22
20070011 97

Acknowledgements
Books don’t get written without support. I am most grateful to Rob Steinbaum,
the Publisher of the New Jersey Law Journal, and Ron Fleury, the Editor-in-Chiel,
for authorizing the “Making Your Point” columns and for continual encouragement;
to my Editors at the Laournal, Lou Tafuri and Bridget Bosworth, who taught me
things I didn’t know I didn’t know; to my editor at American Lawyer Media, Ellen
Greenblatt, for helping shape this book and keep it on message; to my secretary,
Sherry Lord, for dutifully processing my seemingly interminable edits and for letting
me know, without hesitation, when something didn’t ring true; to the members of my
informal polling group for their insights and opinions; and last, but not least, to every-
one who gave me permission, always graciously, to use their work as examples.

vii
Contents
Introduction
1 0 COMPOSITION Understanding the Writing Process
The Writing Process Begins with Getting the Assignment Straight
Your Writing Is a Barometer of Your Thinking
Thorough Editing Proceeds in Stages 11
Writing Is a Self-Analytical Process l4
You Have to Walk a Mile in the Reader’s Shoes 17
Know When It Is Time to Rewrite Rather Than Edit 20
Seek Feedback on Your Work for a Fresh Perspective 23
When W’riting a Memo, Keep the Reader in Mind 26
When Editing Time Is Limited, Perform a Triage 29
Good Editing Is Important, But Solid Preparation Is Key 32
Misinterpreting Cases Is an Occupational Hazard 35
2 0 STRATEGY Formulating Your Point 39
Footnotes Are Where the Horse Is Buried 43
Which Comes First: The Chicken or the Egg? 45
Weak Arguments Are Pellets for the Shotgun Approach 47
Look V’Vithin for the Premise of Your Argument 50
If a Square Peg VVon’t Fit, Try a Round One 53
Don’t Be Afraid to Make Your Own Dicta 56
Sometimes the Illogical Is Very Logical 59
Choose an Approach That Will Appeal to the Court’s Conscience 62
Look Behind the Quotation for the Rationale 65
Jealously Guard Your Credibility with the Court 68
3 0 PRIMACY Persuading the Reader as Soon as Possible 71
Don’t Give Your Adversaries Free Airtime 75
Point Headings Should Persuade 78
Begin Paragraphs with Ideas Rather Than Case Names 81
Put Your Openings to Good Use 84
In a Memo, the Short Answer Should Get Immediately to the Point 87
In Case Write-Ups, Get Quickly to the Holding 90
Lead With Good Facts if the Law Is Unsettled 93
Preliminary Statements Should Focus on the Facts 96
Develop Momentum by Tapping the Reader’s Emotions 99
Focus on the Essential Flaw in Your Opponent’s Argument 102
The Need for Clarity May Override the Risk of Exaggeration 105
viii
4 0 LOGIC Maintaining the Flow of Ideas 109
Transition by Repetition: Take One Step Back to Go Two Steps Forward 113
Grouping and Subordination Help Guide and Persuade the Reader 116
If You Have More Than One Dispositive Point, Let the Reader Know»
Up Front 119
Use “Accordingly,” “Thus” and “Therefore” Sparingly 122
“However” Is Usually an Unnecessary Signal 1 125
Reasons Persuade: Conclusions Do Not 128
Check Your Lists for Logical Structure 131
Misusing Sets and Subsets 134
Be Wary of the “In Order to” or “To” Construction 137
“Rather” Is an Unnecessary, Annoying Signal 140
Carefully Craft Your Sets and Subsets 143
Be Cautious Using “And” as a Connector 146
5 0 PERSPECTIVE Helping the Reader See It Your Way 149
Is the Glass Half Empty or Half Full? 153
Give a Quotation a Good Introduction 156
Don’t Be Afraid to Characterize the Facts 159
Characterize Your Time Intervals to Take Control of the Facts 162
Even Procedural Histories Can Be Persuasive 165
Be Upbeat But Not Pollyannaish 168
Be Brief But Not Brusque in Your Shorthand References 171
A Rose By Any Other Name Might Not Be as Popular 174
Brief Writing Requires a Formal Style 177
Summarize Statutes and Rules Before Quoting Them 180
Take Control of Your Quotations, Don’t Let Them Control You 183
6 o FOCUS Homing in on the Point 187
Use Smaller Categories to Convey Precise Information 191
When Tracking Statutes and Rules, Use Only What You Need 194
Trim the Facts to Bring Out the Essence of Your Case 197
Eliminate “There Is” and “There Are” 200
Take Control of Statutes by Summarizing Them 203
Use Quotation Marks to Focus the Reader’s Attention 206
Precision Begets Persuasion
209
Skip the Generalities and Go Straight to the Specifics
212
Though Detail Is Usually Helpful, It Can Be Overdone
215
Maximize Impact by Making One Point at a Time 218
Tighten Your Work by Omission and Compression
221
ix
Precision Brings Your Idea to a “Point” 224
Skip the Unnecessary Tack-On Explanation 227
Do Not Make a Thought Longjust Because It Is Good 230
Unpack Your Generalizations for Greater Effect 233
Where Else \Nould a Court Rule But “In Its Opinion”? 236
Trust Your Reader to Fill in Some Blanks 239
7 O EMPHASIS Driving the Point Home 243
Eschew Exaggerations, Disparagements and Other lntensifiers 247
Don’t Take Refuge in “Common Sense” 250
“Indeed,” “Simply” and “Certain” Are Unnecessary Additives 253
Show Every Step of Your Reasoning on Key Points 256
Don’t Take Pot Shots at Court or Counsel 259
You Don’t Need Intensifiers to Mark the Absence of Evidence 262
Dashes Are Powerful Punctuation Marks 265
Favor Facts Over Law for Initial Reader Contact 267
Tell a More Powerful Story in the Active Voice 270
End Sentences with Your lNIost Important Thought 273
Curb Your Editorial Urges 276
Spell Out the Facts Embedded in Your Generalizations 279
Don’t Twist Your Prose into a Pretzel 282
Use Underlining or Italics for Emphasis, Not for Editorializing 285
When W’orking by Analogy, Elaborate the Comparison 288
8 0 CONVENTIONS Grammar, Usage and Punctuation 291
Commas Enhance Clarity and Regulate the Flow of Your Writing 295
Create a Parallel Universe for Rhythm and Reinforcement 298
To Get to the Point, Get to the Verb 301
Grammatical Patterns Dictate the Reader’s Response 304
You May Need to Reorganize Your Thoughts Alter Recording Them 307
Use Brackets to Alter a Quotation 310
Discretionary Punctuation Should Achieve Clarity and Flow 313
You Need to Sweat the Small Stuff 316
Free Yourself from the “It” Syndrome 319
Typos Undermine Your Credibility and Your Case 322
Some Commas Should Neither Be Seen Nor Heard 325
l\lind Your PS and Qs and the Apostrophes That Go with Them 328
“Which” Is Often Incorrectly Used in Place of “That” 332
Be Cautious Using Nouns as Adjectives 335
Follow Blue Book Style; It’s Not That Hard 338