Writing Within Different Styles (Part 1)
Little writing is more stilted or conforming to its trade than legal writing.
Anything submitted to the court must sound legal, just as the IRS tax Code must sound like all that previously written in the Code.
Opinions rendered by the court start with a recitation of the facts. We see that in movies when a law professor calls on a student to answer questions about a case. In this video, the actor John Houseman states the facts of a case for an unprepared student.
Details can be very vague when facts are first presented, completely unlike how you start a newspaper article. There, you are solidly in the world of Who, What, Why, Where, When and How. And brevity — a strong opening in a newspaper article answers the five “Ws” and “H” in two or three short sentences.
Given that you have few enriching details to work with in initially describing the facts in an opinion, clarity and presenting a straightforward sequence of events becomes paramount. I cannot stress how important timelines are to the law. Every lawyer starts with developing a timeline and everything comes back to that timeline. Also, by getting the facts in the right order, we begin to get our thoughts in order.
The brilliant Jurist Benjamin Cardozo writes here for the majority of the New York Court of Appeals in the landmark 1928 case, Palsgraf v. Long Island Railroad Company. (Cite omitted.) This is clarity and sequence at its best. Cardozo is helped along with a fun mix of facts that include fireworks, a train, and a falling scale.
“Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. . . . ”
This shouldn’t be confused with an executive summary in business writing. Facts are disclosed there but also conclusions. Not in the law. Not yet. Asking a lawyer or student to summarize a case is different than asking to cite the case facts. Back to Cardozo’s writing.
“. . . It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.”
Declarative writing is also essential in legal writing. State something positively if you are positive on the facts. Or, mostly positive. Advocacy does not belong to the meek.
“We believe John took the car.”
No. If you want to believe, go to church. But never use believe in the law.
“We think John took the car.”
No. Think on your own time.
“John took the car.”
Damn right he did.
More later . . .