Category Archives: Analysis

Introducing quotations

Inviting readers to read, not skip, your quotations

Legal writers often need to use quotations in persuasive documents. Quoting a reliable source adds credibility to your assertions and can relieve the reader of independently checking a source. In this column I’ll discuss a technique for formally introducing quotations that can enhance persuasive force and invite readers to read the quotation—not skip it.

But first, two caveats: (1) Legal writing requires scrupulous honesty and care in quoting; misquoting a source, intentionally or accidentally, harms your credibility. (2) Legal writers should avoid over-quoting; use quotations for crucial legal language or to clinch a key point. Otherwise, paraphrase.

And this post isn’t about incorporating a quotation into your own textual sentence, like these examples:

  • The relevant statute states, “[a]ny taxpayer who paid the sales tax has standing to sue for a refund.” [citation]
  • The relevant statute provides that “[a]ny taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

Instead, I’ll address a formal lead-in to a quotation.

A common and traditional way to introduce a quotation is to use a lead-in statement and a colon, like these:

  • The court stated as follows:
  • The statute provides the following:
  • The hearing officer made the following ruling:

These forms are adequate but average. In their place, I recommend introducing the quotation with what we might call an informative or persuasive lead-in by asserting a point the quotation will prove. So don’t write this:

  • The relevant statute provides authorization as follows: “Any taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

Instead, introduce the quotation by asserting a point the quotation will clinch, like this:

  • The Tax Code affirms Granger’s right to sue for a refund: “Any taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

The technique works for block quotations, too. We all know that readers often skip block quotations. According to Mark Hermann, author of The Curmudgeon’s Guide to Practicing Law, “you must trick the judge into learning the content of the block quotation.”[1] He recommends summarizing the quotation’s substance in the lead-in sentence. And Bryan Garner, in The Winning Brief, offers similar advice: “For every block quotation, supply an informative, eye-catching lead-in.”[2]

So instead of this average lead-in:

  • The State intervened in operating Lincoln County Schools, and the Superintendent thus acted under authority of the Education Code, which states as follows:

The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals. [citation]

Try this:

  • Once the State intervened in operating Lincoln County Schools, the Education Code granted the Superintendent the right to make personnel decisions for the vacant principal positions:

The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals. [citation]

The lead-in asserts a point and, to some degree, summarizes the quotation to follow. With this technique, according to Herrmann and Garner, you’ll get two payoffs. First, readers might read the block: the assertive tone of the lead-in invites them to read the quotation to see if you’re right. Second, even if readers skip the block, they still get the key content.

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[1] Mark Herrmann, The Curmudgeon’s Guide to Practicing Law 8 (2006).

[2] Bryan A. Garner, The Winning Brief 501 (3d ed. 2014).

Justice Gorsuch’s first opinion shows his style

If you search “Neil Gorsuch writing,” you’ll find a number of sources describing new Supreme Court Justice Neil Gorsuch as a strong writer, a writer with flair, a writer with style. Justice Gorsuch has now written his first opinion for the Supreme Court, in this case: Henson v. Santander Consumer USA, Inc.  After reading it carefully and using some MS Word tools to assess it, I offer a few observations about Justice Gorsuch’s writing style.

Stripped of extraneous text and citations, the opinion has about 3000 words and 120 sentences, for an average of 25 words per sentence. That’s a good and readable average for legal writing, as I’ve written here before. The Flesch Reading Ease score is 44. That’s excellent because Supreme Court opinions average around 31.1 (The higher the number, the more readable the text.) And the Flesch-Kincaid Grade Level is 13, meaning a first-year college student should be able to understand the text. That’s pretty good too because Supreme Court opinions average about 14.5.2 Granted, the subject matter of the opinion—who’s a debt collector under the Fair Debt Collection Practices Act—wasn’t complex, and these statistical measures aren’t terribly meaningful, but they at least suggest that Justice Gorsuch tries to write readably.

Two other choices also convey the impression of a thoughtful writer who tries to write readably: Of his 120 sentences, he began 20 with a coordinating conjunction: and, or, for, but, yet, so. That’s a technique of an informal, readable style. So is using contractions, and Gorsuch used 17.

Justice Gorsuch has a few other writing preferences I find interesting.

He rarely uses traditional transition words (conjunctive adverbs) like however, moreover, furthermore, therefore, nevertheless, additionally, and so on. In fact, other than two uses of however, there are none.

Instead, he uses coordinating conjunctions, as mentioned, but he also uses phrases rather than single words, like these, all of which appear at the beginning of sentences:

  • Before attending to that job, though,
  • To the contrary,
  • By this point
  • Given that,
  • After all,
  • After all and again,
  • In the end,

But just as many of his transitions and cues appear mid-sentence, rather than at the beginning:

  • These results follow, the parties tell us, because . . .
  • Petitioners did not, however, raise . . .
  • In another subsection, too, Congress . . .
  • You might, for example, take . . .
  • This exclusion, petitioners now suggest, implies . . .
  • Legislation is, after all, the . . .

More thoughts to come . . .

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1. Lance N. Long, William F. Christensen, When Justices (Subconsciously) Attack: The Theory of Argumentative Threat and the Supreme Court, 91 Or. L. Rev. 933, 950 (2013)

2. See id. at 949.

How to write an e-mail memo

By tradition, when lawyers write a legal analysis for internal use or as a decision-making tool, they write a memo. Today, many memos are e-mail messages. When you ask for an e-mail memo or when you write one, what guidelines do you follow? I propose some here, but it’s important to know your audience. Reject any of these guidelines if your boss prefers something else.

Keep the length down—if you can.
No one likes to read long e-mail messages. Try following the “no scrolling” or “one screen” rule: Readers get everything they need without scrolling past the opening screen. Sometimes a longer message is necessary, but it can still be efficient and effective if you front-load key information. More about front-loading below. Of course, you could write a short message and attach the longer memo, but before you do, check with the assigning lawyer. Some lawyers dislike reading attachments, and attachments don’t always display well on tablets or phones.

Remember: a more concise piece of writing is often harder to produce than a long one. Give yourself time to condense and tighten.

Use the subject line to give key information.
For a short, single-issue e-mail memo, I recommend writing a condensed, specific subject line that states the answer. You save the reader time and effort, and besides, legal readers appreciate knowing the answer before they get into the analysis. This suggestion just takes the idea a little further.

It’s not always possible or practical to put the answer in the subject line. Maybe it would be too easy for others to see; maybe your boss doesn’t like it; maybe you have three answers to report. If your work environment or your boss dictates that you don’t put the answer in the subject line, then just write something specific—think summary, not merely topic.

Restate the question asked.
The first line of the body text should restate the question. In fact, I like the opening phrase “You asked . . .” Provide enough detail—facts and law—to accurately frame the question, and avoid abstraction. If there are multiple questions, number them.

An e-mail memo that assumes the reader knows what was asked and that skips right to the answer has two drawbacks: it’s frustrating for secondary readers, who’ll have to scroll through the thread to find what was asked, and it’s frustrating for the assigning lawyer who’s reading the e-mail days or weeks later.

Give the answer with reasons in one paragraph.
Write a thorough answer with reasons, thus ensuring that the body text is complete, easily understood if isolated from the other parts of the message, and readily copied and pasted into other documents. The answer with reasons also serves as critical front-loading in a longer message. You can write a single, short paragraph—three or four lines of text, or you can write the answer and give the reasons in bullet points. If there were numbered questions, use parallel numbering for the answers.

State the governing law but skip the case explanations.
A traditional memo states the legal rule that governs the question, and an e-mail memo should too. Be accurate and concise: name important statutes (“Under Insurance Code § 22.001 . . .”), refer to important cases by shorthand (“According to Lone Pine Mfg. . . .”), and mention the jurisdiction (“In Texas . . .”). But don’t clutter the text with formal, full-form citations.

A traditional memo also explains the cases that have construed and applied the law—illustrations that give readers a concrete understanding of the law. But there’s usually no space for that in an e-mail memo, so leave it out.

(Yet writing explanations is excellent practice for new lawyers and ensures a better understanding of the law. If you’re a new lawyer, go ahead and write careful, clear, concise explanations. Just don’t put them in the e-mail memo. Write them and save them somewhere. They’ll often come in handy later.)

Analyze as needed.
Support your answer by explaining why the law leads to a particular result in your case. Expand on the reasons you gave, but be succinct and concise. Get quickly to the core concepts and eliminate background and build-up. Keep the analysis to just a few paragraphs if you can.

Other guidelines
If the body text is long, divide it and insert headings to enable skimming (Issue and Answer, Summary of Law, Impact on Client). Consider including, at the end, full citations for the relevant authorities, and even summaries, if your boss wants them. And treat e-mail message that provide legal analysis as formal writing; avoid a casual or informal style.

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Ultimately, treat e-mail memos as serious pieces of legal analysis that deserve thorough research, clear writing, and careful editing. Remember that your e-mail can and will be forwarded to clients, to other lawyers, and to the hiring committee.

 

Comment? Email me: wayne@legalwriting.net. Excessive spam = comments disabled.

Law schools teach IRAC?

I’m reading a book about legal writing that advises lawyers to avoid using the IRAC model for a legal memo:

Many law schools teach IRAC (Issue, Rule of law, Analysis, and Conclusion) as the format for memoranda. (The acronym is not only wrong, it’s also confusing because some schools teach the C in IRAC as Cases.) However, IRAC makes the reader wait until the end of the paper to learn the all-important conclusion. Avoid IRAC and put your conclusion in the opening of the paper.

The assertions here are wrong in several ways:

  • Many law schools teach IRAC as the format for memoranda.

An initial question: what does the author mean by “format”? The format of a traditional memo is usually this: Heading, Issue Statement, Short Answer, Facts, Discussion, Conclusion. How could IRAC be used for the format? The author probably means “organizational structure,” not format.

Another question: How could IRAC be the organizational structure of a memo—a whole memo? A memo has many parts, some small and formal, with little organizational structure, and others long and analytical, with lots of organizational structure. The author is not as precise as I’d like and probably means this: Many law schools teach IRAC as the organizational structure of the Discussion section of a memo.

Now to my main point. I predict it would be difficult to find even one law school teaching IRAC as the organizational structure for the Discussion section of a memo.

IRAC might be taught as the structure for an exam answer, but not for the Discussion in a memo. Modern legal-writing teachers, with few exceptions, left IRAC behind long ago. If any acronym is used in “many law schools” to teach the organizational structure of the Discussion section of a memo, it’s probably CREAC (Conclusion, Rule, Explanation, Application, Counter-analysis).

By the way, there are many variations on CREAC (like PREACC, CREXAC, SLACCs, TRuPACC, CRuPAW, and more), but they all represent the same core, structural concepts: state your conclusion first, then state and explain the controlling legal principles, then apply the principles to your problem.

In fact, if I’m going to insist on precision and accuracy, CREAC isn’t applied strictly to the Discussion, but to an analysis of a legal issue. So to make the author’s statement accurate, it would need to say this:

Many law schools teach a form of CREAC as the organizational structure for analyzing a legal issue.

Now to some other points. The author also says this:

  • Some schools teach the C in IRAC as Cases.

My opinion: Unlikely to be true. There’s a misunderstanding here somewhere, because the structure “Issue, Rule, Analysis, Cases” makes no sense.

  • Avoid IRAC and put your conclusion in the opening of the paper.

With CREAC, that is exactly what you do—put the conclusion first.

But now I must quibble: you put the conclusion at the beginning of an analytical discussion, not at the beginning of the paper. The beginning of the paper (memo?) is usually the Issue Statement. The author isn’t precise and seems to be using “memo” and “paper” interchangeably; the author also ignores the difference between a memo and the analytical discussion that is one part of a memo.

Why did I write this post?

Am I just being snotty and picky? Maybe so, but the author has hit one of my pet peeves: legal-writing experts who don’t teach first-year legal writing, but who criticize or comment ignorantly about teaching first-year legal writing.

This author now joins two other legal-writing experts I know who comment negatively about how legal writing is taught to first-year law students. Yet all three have never taught legal writing to first-year students and all three make generalizations, uninformed assertions, and incorrect statements about the subject.

Venting done.

Conclusions and summaries—expert consensus in a series of posts 3

“Don’t make your reader hang on for the surprise ending. You are not Agatha Christie. Instead, state your conclusion very early in your writing.

. . .

When you state the conclusion right up front, the reader knows where you are going and is more forgiving of your digressions later on.”

Timothy Perrin, Better Writing for Lawyers 98–99 (Law Soc. of Upper Canada 1990).