By Professor Carmela Simoncini, J.D., LL.M.
Prof. Simoncini is an Adjunct Professor of Legal Writing II at TJSL. She is an Alumna of Thomas Jefferson School of Law and has over 37 years experience as a lawyer, and 25 years experience teaching as an adjunct professor. Prof. Simoncini was recently featured in a May 2016 article in The San Diego Union-Tribune for her representation of Frederick Renee Daye who was sentenced to life in prison in 1984 after the victim of a rape and robbery misidentified him as one of the two men who attacked her. It was the very first cases in California where DNA evidence was used to exonerate a wrongly convicted person.
“I understand that it is a maxim of law, that a poor plea may be a good plea to a bad declaration.”
– Abraham Lincoln
We have all heard other maxims for lawyers, such as those of The Hon. Lord Denning’s who wrote that, “To succeed in the profession of law, you must seek to cultivate a command of language. Words are the Lawyer’s tools of trade . . . . On the words you use, your client’s future may depend. The reason why words are so important is because words are the vehicle of thought.” Contrast these maxims with others well-known, such as the observation by Clarence Darrow, “The trouble with law is lawyers.” Whatever you may think of the law or of lawyering, if you pursue a career in law, communication will be your medium, and writing well will be an essential skill. In the battlefield that is the court, the pen is the weapon of choice.
Imagine for a moment that you represent a client in a civil case and have filed a memorandum of points and authorities in support of the client’s theory of recovery. Imagine in that same moment that your brief was written without an outline so that it reads as stream of consciousness, in a desultory fashion. Imagine again that you have done no research to provide legal authority for the position advocated on behalf of your client. Finally, go for broke and imagine you have included no analysis whatsoever to show why your client is entitled to relief. Now imagine that your opponent has filed a memorandum of law in opposition to yours. It is logically organized and the points covered in it are supported by appropriate authority. The discussion analyzes the facts and the law and points to cogent reasons why relief should be denied.
Who do you think will prevail? Based on my experience, the attorney with a well-reasoned brief supported by appropriate legal authority, analyzing the rules of law as they apply to the fact pattern presented, will be the most persuasive.
Many law students do not consider legal writing a very important subject for two reasons: they do not realize how much writing most lawyers do, and they do not believe that writing generates knowledge. Au contraire (on the contrary), most lawyers write more than most novelists write. Also, the now dominant view of composition is that it is epistemic—it does not merely record the thoughts of writers, but actually generates knowledge. Some legal writing professionals have written of a curricular bias in favor of “doctrinal” courses, which treats “process” courses, such as Legal Writing, as a step-child. However, written communication has been rated by professionals as the most important skill and ability needed by a newly licensed lawyer.
To understand why effective legal writing is so important, consider its characteristics. Once written, words and arguments becomes a permanent part of your case. A written legal argument memorializes it in the court record. Mastery of good legal writing means that those permanent words will have optimum persuasive effect on your audience. After all, you can edit and augment a written document, where you do not have that same luxury when speaking extemporaneously. Thus, it behooves both the law student and the law practitioner to hone the skill of legal writing, which involves perfecting the skill of rhetoric.
Rhetoric, is the art of persuasion which evolved from oral traditions in ancient times, when writing was a skill not practiced by many and where writing implements were not readily available. The word “rhetoric” comes from the Greek word (rhetorikos), which means “oratorical” and is derived from (rhetor), meaning, “a public speaker.” In the day of orators, having a structured presentation was essential due to the unavailability of means of rapid publication or reproduction.
Aristotle wrote a treatise, “On Rhetoric”, in the 4th century BC on the art of persuasion. Aristotle established three canons of rhetoric: invention, arrangement, and style. These canons are also referred to as visual rhetorical devices, which can improve communication, comprehension, belief, and adherence of audiences to the ideas presented. Anyone who has fallen asleep during a lecture understands the difference between a good oral presentation and a less successful one.
“Invention” refers to the discovery and identification of arguments to support the writer’s point of view and depends on the individual writer’s inherent ability to process the substantive information taught in the doctrinal studies, in addition to the individual’s capacity for critical thinking about the nature of the problem. “Arrangement” refers to the organization of a speech or text to ensure maximum persuasion. “Style” refers to the manner in which the ideas are expressed and is dependent on the writer’s skill with words, as well as the writer’s mastery of logos (logic), ethos (credibility), and pathos (feeling).
A legal argument is resolved when the audience, whether judge or jury, accepts one claim as more reasonable than another. The key to making a logical argument is to master “arrangement”, and present it in a format that moves smoothly from the point of assertion to the point of conclusion, supporting the position with justification or authority. It should go without saying that if your argument is not logically presented, as well as supported with authority and analysis, it will not be readily accepted. This skill, can be perfected through the process of outlining, but it requires practice.
While it is important for you to master effective public speaking, having an effective written argument (in the nature of either a pretrial motion, in limine trial brief or other writing) memorializes the legal points and the arguments in support of them. For a busy court, having a document that familiarizes the jurist with the nature of the case and the issues prior to the hearing is not only time-saving, but a well-written argument may predispose the court in your favor. When the judge is already familiar with the external contours of your position and the supporting legal authority, you are able to focus on subtler policy arguments and answer any questions that may be more persuasive.
Finally, even the best oral argument is occasionally unsuccessful in persuading an trial court judge. Without a well-written brief, a reviewing court will need to depend on the record of the oral proceedings in the lower court to flush out the arguments and determine if there was an error in your favor. In this day and age, court reporters must be arranged well in advance, and, depending on the client’s ability to pay, are not always available. Thus, a transcript of your masterful oratory may be lost forever, along with your opportunity to persuade a reviewing court that the trial court erred in ruling against you.
As words are the tools of the lawyer’s trade, the ability to analyze legal questions, and explain that analysis well using words presented in a logical arrangement can mean the difference between life and death for your client, financial recovery or ruin, or years of incarceration. Whatever you may think of the law school curriculum, mastering good legal writing will insure that you competently represent your client’s legal interests as required by ABA Model Rules of Professional Conduct (Rule 1.1) And, when words are your tools, the pen is far mightier than the sword.