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From a master teacher, a results-oriented approach to powerful legal writing that communicates, that persuades--and that wins. Of all the professions, the law has the most deserved reputation for opaque, jargon-clogged writing. Legal education, which focuses on judicial opinions, not instruments of persuasion, is partly to blame. Yet forceful writing is one of the most potent weapons of legal advocacy. InWriting to Win, Steve Stark, a former teacher of writing at Harvard Law, who has taught thousands of aspiring and practicing lawyers, has written the only book on the market that applies the universal principles of vigorous prose to the job of making a case--and winning it. Writing to Winfocuses on the writing of lawyers, not judges, and includes dozens of examples of effective (and ineffective) real-life writing--as well as models drawn from advertising, journalism, and fiction. It deals with the problems lawyers face in writing, from organization to strengthening and editing prose; teaches ways of improving arguments; addresses litigation and technical writing in all its forms; and covers the writing attorneys must perform in their practice, from memos and letters to briefs and contracts. Each chapter opens with a succinct set of rules for easy reference. No other legal writing book on the market is as practical, as focused on results, as well written asWriting to Win.

Steve Stark is a graduate of Yale Law School who taught legal writing at Harvard Law for over a decae. Dubbed "the David Letterman of continuing legal education," he has given seminars on the subject to thousands of lawyers a year in corporations and continuing education courses required by bar associations. He is a frequent contributor to <b>The Atlantic Monthly</b> and National Public Radio and is the author of <b>Glued to the Set</b>. He lives in Cambridge, Massachusetts.

Introduction

xi

Part I The Fundamentals of Legal Writing

1

(56)

Organizing Your Material

3

(16)

The Rules of the Road

19

(28)

The Mechanics of Editing

47

(10)

Part II The Fundamentals of Argument for All Lawyers

57

(32)

The Art of Argument

59

(15)

The Role of Narrative in Argument

74

(15)

Part III Writing in Litigation

89

(120)

Writing the Facts

91

(25)

Writing Arguments

116

(34)

Writing Trial and Appellate Briefs

150

(18)

Writing Complaints and Answers

168

(12)

Writing in Discovery

180

(12)

Oral Argument from a Writer's Perspective

192

(17)

Part IV Writing in Legal Practice

209

(50)

Technical Writing

211

(14)

Writing Memos

225

(11)

Writing Letters and E-mail

236

(10)

Drafting Contracts and Rules

246

(13)

Conclusion The Real Damage of Bad Legal Writing

259

(8)

Appendix

267

(4)

The Thirteen Rules of Professionalism in Legal Writing

269

(1)

Submitting Samples for Inclusion in Future Editions of This Book

270

(1)

Bibliography

271

What is included with this book?

The New copy of this book will include any supplemental materials advertised. Please check the title of the book to determine if it should include any access cards, study guides, lab manuals, CDs, etc.

The Used, Rental and eBook copies of this book are not guaranteed to include any supplemental materials. Typically, only the book itself is included. This is true even if the title states it includes any access cards, study guides, lab manuals, CDs, etc.

Chapter 1

Organizing Your Material

I. The Overview: Getting Started by

Leading with Your Conclusion

II. Organizing Your Workplace Around Seven Rules

1. Remember that most writing difficulties are organizational difficulties. 2. Writing is something that most people do best alone. 3. Most writers need a regular time to compose. 4. The person who does the research should do the writing. 5. Don't divide the drafting of a document among many writers. 6. Keep a notebook and learn from other lawyers. 7. Don't dictate anything important.

I. The Overview: Getting Started by Leading with Your Conclusion

For supposedly logical thinkers, lawyers often write surprisingly disorganized prose. Ask a lawyer what he or she intends to say, and you usually get a crisp, simple answer. Somehow, though, in the process of transferring that thought to writing, the clarity vanishes. Take this opening to a brief, filed in the U.S. Court of Appeals for the Fifth Circuit and cited in Tom Goldstein and Jethro Lieberman's The Lawyer's Guide to Writing Well:

Appellee initially filed a motion to strike appendices to brief for appellant on July 22, 1983. Appellant filed a brief in response, which appellee replied to. Appellant has subsequently filed another brief on this motion, Appellant's Reply to Appellant's Brief in Response to Appellee's Motion to Strike Appendices to Brief for Appellant (appellant's most recent brief), to which the appellee herein responds.

A large part of the problem here is the way lawyers organize and compose their material. Like everyone else, lawyers write in many ways. Some dictate off the top of their heads and then edit. Others ponder the matter for hours and draw up a lengthy outline. Still others discuss the issue with a colleague and try several lead sentences before finally hitting the screen or pad and dashing off a few paragraphs in a blaze of glory.

If a method works for you and you can't conceive of doing things any other way, stick with your habit. Tradition has it that Ernest Hemingway used to sharpen close to twenty pencils and then go for a walk before writing. That said, however, one method of organization has tended to work well for legal writers in the past.

First, you must have a clear idea of what you're going to say before you begin to write. Compare it to driving: If you're going to travel from New York to Washington and you get into the car without having figured out what route you're taking, you may still eventually arrive in Washington. The problem is that you may take your passengers to Albany or Providence before you finally get your bearings and head for Washington in the most direct fashion.

To get your direction straight, outlining can help. Yet not just any outline will do. Rather, before you sit down to write anything, whether it's a two-page letter or a thirty-page brief, you should ask: If you had to condense your message in two or three sentences, what would those sentences be? If the judge or reader stopped you on the street and said, "I only have about a half a minute, so who are you, what do you want, and why?" what would you say? Having figured out those two or three sentences, you're ready to write and something more. Those first few sentences should be the first paragraph of any document. In legal writing, we always lead with our conclusions.

Good lawyers do this all the time. Here's how one advocate appealing a criminal conviction began her brief (the names have been changed):

The State's entire case against Max Hugo turned on Trooper Dora Clayhorn's testimony about her success in disguising herself as a college student, entering the enclosed porch of appellant's home uninvited, proceeding into his living room, and there soliciting the sale of a quarter-gram of cocaine for only $25.00. That evidence was admitted only because the district court declined to suppress it as the fruit of an unlawful search, ruling that the New York police may target an individual and invite themselves to his residence for an undercover sting operation within the sanctity of his own home without a warrant and without any probable cause to believe either that appellant was selling drugs from his home or that he was even selling drugs at all.

Whether the government may roam at large in people's homes as freely as it did in this case is an issue of first impression in this Court.

Most lawyers find it terribly difficult to come up with an approximation of these initial sentences. After all, we're taught from day one in law school that nothing is black or white-everything is a shade of gray. "If you want to understand this, Your Honor," we seem to say, "please sit down for four hours while I explain to you every nuance, detail, and comma." There's no truth but the whole truth, or so we think. Moreover, the essence of an academic paper is to take a two-page idea and write about it for twenty-five pages. In law school, one way we are trained to write is like law professors composing law review articles. That's the genre, as the late Judge Harold Leventhal of the U.S. Court of Appeals for the D.C. Circuit once said, that spends thirty pages describing a problem you never knew existed and then spends fifty pages explaining why it will never be solved.

In contrast, in the real legal world, the core of effective communication and argument, at least initially, is simplification. Unless readers know right up front where you're heading and why, it's very difficult for them to follow a complicated explanation or argument, much less be convinced by it.

I understand lawyers' reluctance to commit themselves to those first few sentences. However, even though it seems difficult at first, anything can be condensed to such a summary. Take the recent U.S. Department of Justice antitrust action against Microsoft. It's complicated by many issues, and there's probably enough discovery in the case to fill hundreds of boxes. Still, if you were arguing that case for the government, you could try to boil it down to this issue: Can Microsoft use its near monopoly on one product, Windows, to force consumers to take another, integrated product they may not want?

Or take Herman Melville's Moby-Dick. Sure it's long, but essentially it's a novel about a group of sailors from Massachusetts who chase a giant white whale, eventually find it, and harpoon it while Captain Ahab gets chained to it. I know Melville would be terribly upset with such a condensation, yet even this one sentence gives us a rough sense of the novel.

What we're doing here is similar to what journalists are supposed to do when they apply the "pyramid style" to a story, leading with who, what, when, where, and why. Think of it as an upside-down triangle.

Excerpted from Writing to Win: The Legal Writer by Steven D. Stark
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Writing to Win : The Legal Writer

Writing to Win : The Legal Writer

0385495927

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