“Where’s the beef?”
“Fifteen minutes will save you 15 percent or more on your car insurance.”
“Because you’re worth it.”
Advertising slogans such as these could serve as guideposts for better legal writing, according Steven D. Stark, lawyer and author of “Writing to Win: The Legal Writer.”
Informative and amusing, Stark, a former lecturer at Harvard Law School, spoke about how to improve legal writing at a recent New Jersey Institute for Continuing Legal Education seminar titled “Legal Writing: From Fiction to Fact.”
Not only can Madison Avenue provide lessons for punchier legal writing, but poetry and songwriting can provide lawyers with effective writing techniques as well, said Stark, who is also the author of the book “Meet the Beatles: A Cultural History of the Band That Shook Youth, Gender, and the World.”
Among his recommendations: write short sentences, use short words, strong verbs and the active voice.
“Today, we rarely want to write in the passive. Why?,… It’s hard to read the passive and to figure out what’s being said—even though I just said that in the passive,” Stark noted during the presentation held at the New Jersey Law Center in New Brunswick.
Nike’s “Just do it” slogan is an example of a short, memorable line that uses the active voice, Stark noted. But if Nike had said, “It should be done,” using the passive voice, the company wouldn’t sell many sneakers. “It doesn’t tell anybody to do anything,” he said.
Martin Luther King Jr.’s famous “I have a dream” would have been turned into “A dream was had by me” if he had been a lawyer, he added.
Stark cited two memorable lines from cases that are punchy, active, evoke strong images and encapsulate an argument: Johnnie Cochrane’s line from the O.J. Simpson case, “If it doesn’t fit, you must acquit,” and Alexander Bickel’s line, “A criminal statute chills, prior restraint freezes” in the Pentagon Papers case.
Passive is a Case for the Defense
Defense lawyers primarily use the passive voice, Stark said.
“A prosecutor is going to say, ‘Marie Smith fired the gun.’ The defense lawyer is going to say, ‘The gun was fired. It went off.’ You are in the business as a defense lawyer of disconnecting a subject from the consequence of what he or she or it did,” he said.
The problem is a lot of plaintiff’s lawyers use the passive voice, which undercuts their argument, Stark said.
“The plaintiff’s lawyer might say, ‘The car was driven.’ Unless it was a self-driving car, I don’t think the car drove itself into my client’s car. Your client drove it into my client’s car,” Stark said.
Keep it Short
On the subject of short words, Stark briefly delved into the history of the English language. Short words entered the language first through Old English or Anglo-Saxon, and are the building blocks of the language. Longer words entered the English language later through the Norman conquest in 1066, which introduced French and Latin words into the English vocabulary.
Even though there are more Latin words in the language, “of the 100 most-frequently used words in English today, over 95 percent are from Old English,” he said.
“If you use short words derived from Old English, they’ll automatically be rhythmic, because the Anglos and the Saxons had no use for a word that didn’t do that,” Stark said. Examples of some commonly used Anglo-Saxon words in English include begin, quick, free, glass and walk.
But the problem, is as lawyers, “we’re all very well educated, we’re very intellectual and one mark of being well-educated…is how elevated a vocabulary you have,” he said.
Stark acknowledged, however, that there is no way around using certain legal words, particularly the numerous French words in English common law, a result of the Norman invasion.
“You’re going to have to balance those off with something short, more rhythmic, more memorable types of words because those words aren’t going to cut it.”
Legal writing tips
- Short sentences (25 words or less; one thought per sentence).
- Short words.
- Strong verbs.
- Active voice.
- Move all clauses to the beginning or end of sentences.
- Always edit.
Briefs as Poetry and Advertisement
- Come up with a good slogan.
- Make it interesting. Readers can’t be bored into buying products.
- Ask yourself: What’s the big idea (the main idea you’re trying to get across).
- Study the product (client) and industry (field) you are representing.