All of the following rules are simple. Some derive from my time as a freelance writer, when my livelihood (and my editors) demanded that I write clearly. Some derive from my time as a federal judicial clerk, when I read and analyzed legal writing — all day, five days a week — for two years. I use them every time I write a brief or motion and they serve me well.
1. Use topic sentences.
Write every heading and subheading as a sentence, and write a topic sentence for every paragraph. I cannot emphasize the importance of topic sentences enough. They are crucial to clear writing.
First, topic sentences force you to craft a coherent argument. When you use topic sentences for headings, and then read only at those headings, you can readily assess whether there is a logical flow and consistency to your argument. The headings in your statement of facts, for example, should reflect key points, such as who knew what and when, that are relevant to and preview the argument that follows. The same goes for every paragraph; it should relate to its heading. If it doesn’t, then you must ask yourself where it goes, and how it serves your argument.
Second, topic sentences help your reader immensely. Topic sentences explain to your reader why you are telling them something, which makes the reader more invested in what you have to say. When I was a judicial clerk, if there were long sections of facts or case descriptions, I would skim until I came to the point. Without that frame of reference, I was unable to assess the information and therefore had little incentive to read closely.
2. Keep paragraphs within 2 to 7 sentences.
If you use topic sentences correctly, a paragraph should convey a single idea. If you have more than seven sentences, assess whether you need two paragraphs, or if you need to eliminate something extraneous. Do this assessment every time you have a long paragraph, without exception.
3. Keep sentences under 60 words.
This 60-word rule serves as a constant check on readability. Sixty words is approximately three and a half lines of text. If you see a sentence is long, either revise to eliminate wordiness, or decide whether it really should be two sentences. Both edits add to clarity. I make an exception for sentences with numbered clause, because: 1) the numbers help the reader follow the sentence structure, and 2) this sentence format is common in legal writing, where legal rules often take the form of a multi-factor test or analysis.
4. Avoid unnecessary detail.
Every detail you include in a brief should serve you in some way. If it doesn’t, then it distracts from your argument. For example, I do not include any proper names other than the parties in the case. Instead, I identify people with a descriptor such as the “human resource specialist,” “Defendant’s medical expert,” “the officer on duty.” I do the same with dates and times; I only include them if they have legal significance. Even then, I explain why they are significant. For example, I will write, “the taunting continued for six months after she complained to human resources,” or “he died two days later.” If you eliminate details in this way, you lighten your reader’s cognitive load, leaving more room to focus on your argument.
5. Banish passive voice.
Passive voice hides the actor in sentence, which detracts from clarity and readability. You get rid of passive voice by looking for variations on the verb form “to be” and replacing them with another verb. For example, in the sentence, “Her complaint was investigated the following week,” the verb “was” hides who did the investigation. Instead write, “Her manager investigated her complaint the following week.” Do this type of revision over and over until it becomes second nature. The one exception, of course, is when you want to obscure the actor in a sentence, as in the classic example, “Mistakes were made.”
6. Use key words to signify your argument.
Think carefully about word choices for the key facts in your case. If you want to argue that a company failed to adequately address a sexual harassment complaint, for example, you would not write “the investigation,” but might use “the response” to suggest that no genuine investigation took place. Similarly, you would write the human resources manager “met” or “spoke” with the alleged harasser, rather than “questioned” or “interviewed” him. These word choices should be both subtle and accurate, so that you can include them in your statement of facts, and throughout your brief, reinforcing your argument at every opportunity.
7. Define your opponent’s argument.
When you write a response or a reply, identify your opponent’s argument at the outset of your counterargument, and refer to the specific page or pages in the opponent’s brief. For example, you might write, “Defendants mistakenly contend that. . .,” or “The cases Defendants rely on are readily distinguishable because . . .” or “Defendants appear to argue that . . .” and then cite to the page numbers in the opposing brief.
This serves two purposes. First, it helps to cabin the opponent’s contentions. Sometimes an opponent will write so poorly that you can’t figure out what he or she is trying to say. If you don’t know, then chances are the judge or clerk won’t know either, and thus will be apt to rely on your interpretation. Second, including the specific page numbers for your opponent’s argument helps the judge or clerk refer back to it, which means they can better assess what you say about it.
Of course, your description of your opponent’s argument must be accurate. Otherwise, you not only lose credibility, you also risk failing to adequately address the opponent’s point.
8. Edit as you go.
I employ these rules as I write, not when editing later. This forces me to continuously assess and clarify my argument. The extra work pays off in persuasion.
Overblown adjectives, ad hominem attacks and deliberate misconstruction don’t win arguments. They shout weakness. But when you write clearly and carefully, every sentence, every paragraph, every heading subtly serves the result you seek so that, in the end, the conclusion has the force of a fait accompli. That’s the goal of these rules: to write so well, the result appears artless, effortless, inevitable.
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