ASKED & ANSWERED: Mark Cooney on legal writing

By Steve Thorpe Legal News Of the many tools lawyers use in practice, language may be the most important. Mark Cooney is a professor at Thomas M. Cooley Law School, where he teaches Research and Writing. He began his career in civil litigation, including trials, but eventually turned his focus to appellate work, arguing in the Michigan Supreme Court, the Michigan Court of Appeals, and the United States Court of Appeals for the Sixth Circuit. Cooney has frequently been a speaker or a moderator on legal writing and appellate practice, including events sponsored by the Michigan Appellate Assigned Counsel System, the Michigan Appellate Bench-Bar Foundation, Michigan Defense Trial Counsel, and the State Bar's Appellate Practice Section. He has authored many articles on legal writing, including articles in The Scribes Journal of Legal Writing, Student Lawyer, TRIAL, and The Scrivener. He is also a frequent contributor to the Michigan Bar Journal's Plain Language column. Thorpe: What, if any, style guides do you recommend attorneys use? Cooney: There are many good books on legal writing. I'll start with Joe Kimble's books, which give some pure instruction but also offer compelling proof that plain language is better language. All of Bryan Garner's books are worth owning -- and don't forget his dictionaries on usage. Richard Wydick's "Plain English for Lawyers" is a classic. Just reading the table of contents makes you a better writer. Lawyers are paid to write -- $100, $200, $300, $400 per hour for our writing. We are professional writers. And bosses, clients, judges, and court personnel form opinions about us based on our writing. So we should behave like professional writers. We should buy books on legal writing and make time to read them every now and then -- work to sharpen our craft. But let me add another suggestion. I think that lawyers should pay more attention to the excellent writing they see every day outside of work. When you're reading magazines like Discover, Money, Time, Newsweek, National Geographic, even Sports Illustrated, pay careful attention to the writing style. Stop and look closely at how professional writers attack a sentence. See how they attack a complex subject matter, break it down, and present it to a lay reader. Lawyers should imitate that style instead of the style you'd find in a 1932 case opinion. The wordy, stuffy style we see in so much legal writing inhibits clear and direct communication. It all but guarantees cumbersome prose. For instance, you won't catch a professional writer writing something like this: "Subsequent to the completion of the depositions, the defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(10)." You just wouldn't see that from a pro. That sentence would never get past an editor's desk. The pro would write, "After the depositions, the defendant moved for summary disposition under MCR 2.116(C)(10)." It's not poetry, but it's crisp and direct. Thorpe: What are the potential pitfalls of built-in aids like spell check and grammar check? Cooney: Usually, those checks are helpful. I suppose they could become a risky crutch. Some of the most common typos in legal writing -- like "statue" instead of statute -- draw no attention from spell-check software. So we still need to use our eyes. And even the syntax checks can seem a bit arbitrary. While working on drafts, I've noticed that the syntax check sometimes won't announce obvious flaws. In fact, sometimes I test this out of pure curiosity. I'll stop writing in midstream and then fuse together -- with no punctuation -- two partial sentences that don't match grammatically. Then I'll page down a bit and wait for the green underlining to pop up. Sometimes it doesn't. Maybe I'm doing something wrong with my settings or something. If so, I'm probably not alone. So writers must beware. But again, typically those tools help writers. Thorpe: Would you give us some dos and don'ts of employing humor in legal writing? Cooney: Humor is risky in court documents. I'd say that lawyers should avoid humor if there's any chance of appearing insensitive to a party or a crime victim, or if it looks like you're ignoring the seriousness of the parties' dispute. I can recall some wrongful-death cases I worked on where humor would have been completely out of line. Sarcastic humor directed at a pro se litigant might backfire, creating reader sympathy for your opponent. I learned that from a mentor years ago. Yet a judicious sprinkle of humor can, at times, break up the reader's doldrums. And sometimes a witty turn of phrase can truly make a point clearer. It can make an impact. But the legal writer should always ask himself or herself whether it's appropriate and worth the risk. I'd treat it like we treat milkshakes: great occasionally, but don't overdo it. There are many writing techniques that are great if used sparingly, like the single-sentence paragraph. But if overused, they lose their impact and distract readers. Thorpe: A lot of slang and colloquialisms are making their way into the dictionary faster than they used to. Tips on use? Cooney: I consider myself a foot soldier in the plain-language army. But we plain-language advocates have never recommended casual writing or slang. There's a distinction between conversational style and casual style. I don't see a place for casual prose, and much of the slang you're referring to is casual. For instance, the plain-language advocates wouldn't encourage a lawyer to write, "The tenant refused to remove her stuff." That's too casual. It's inappropriate for a court brief, in my opinion. But "remove her belongings" would be fine -- conversational. I'd add that most of the legal-writing texts warn against colloquialisms and idioms, even texts promoting plain language. Avoiding slang or fad terms -- Garner has a list of "vogue" terms in his dictionary of modern legal usage -- is probably a sound strategy because you never know if or when a reader will hold a strong aversion to them. You won't be jailed for using a colloquialism, so I don't want to overstate this point. But you don't want a distracted reader. Thorpe: What are some of the most common language errors you see lawyers make? Cooney: Many Michigan lawyers produce excellent written work. I occasionally look at the litigants' briefs on the Michigan Supreme Court's website for examples of effective, elegant legal writing. The quality is much more erratic in lower-court filings, from what I've seen. But you see excellent written work there, too. Nevertheless, you also see areas for improvement. In appellate briefs, many of the questions presented are unreadable. Too many lawyers have forgotten the elements and structure that make a question presented informative and readable. It's hard, by the way. Writing a good question presented is the single most difficult thing to do well in legal writing, in my opinion. As for writing style in general, it's often the same old tune. Many lawyers still carry the baggage they picked up during law school, when they were insecure students wanting nothing more than to sound like a lawyer. Well, practicing lawyers don't need to prove that they're lawyers. They are lawyers. So what's the point of continuing to carry that baggage? Do we really need to use inflated, wordy language to prove a given? It's an automatic reflex for some, I fear. So we have many confident, experienced attorneys using a style that screams of law-student insecurity. The confident writer sheds that inflated style while still using truly necessary terms of art. And the confident writer builds credibility with readers because his or her writing is direct, has some pop, and feels like a breath of fresh air compared to the rest. Other than that, the most common error I see isn't necessarily a matter of grammar or writing style. It's a lack of empathy for readers. Many lawyers forget how much help their readers need. Readers need clarity, and much of that clarity comes when legal writers step back and think about how new the reader is to the case or the issue. As lawyers, we're always familiar with our case -- the facts and history. And we've also researched the law before writing a document, so we're comfortable with the law. But when a reader picks up our brief, he or she knows nothing about the case or the law. He or she is new to it all. And the reader won't have an easy time learning about our case and the law unless we use devices designed to help the reader follow along. Lawyers should consciously and constantly try to help the unfamiliar reader. By the way, all of this is challenging. But if we all try to help our readers, even our inevitable clunkers won't be so bad. Published: Tue, Dec 4, 2012

––––––––––––––––––––
 Subscribe to the Legal News!
 http://legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available