Legal Writing Blog: February 2011

What makes Point Made different from other books on legal writing?

Point Made is the first book to use an empirical approach to help lawyers write like the nation's best advocates. Rather than repeat familiar generalities such as "outline your argument" or "be concise," the book dissects the writing of the most influential advocates alive, including John Roberts, David Boies, Ted Olson, Maureen Mahoney, and dozens more. By breaking the way these lawyers write into concrete techniques, the book gives you 50 ways to make your own writing stand out.

For each technique, you'll get practical tips and many model examples. The techniques offer solutions to all major writing challenges, from how to craft a compelling opening to how to make dense material come alive. The examples span from Harry Potter to Hollywood, from drinking ages to the Duke Lacrosse case, from press freedoms to students' rights, and from police misconduct to presidential candidates.

I also explain how and why the examples work, and I contrast these great examples with more mundane ones.

What motivated you to write Point Made?

For years I have sought to understand why some lawyers write so much better than others. When Chief Justice John Roberts was nominated to the Supreme Court, for example, Ruth Bader Ginsburg and others said that he was the best brief writer and oral advocate alive. I had a hunch about why Roberts reaped so much praise, but I wanted to break down his writing into concrete techniques for my clients so that they could incorporate his techniques into their own work.

I wound up writing an article on Roberts’s writing that got a lot of attention at the time. After reading it, an editor at Oxford University Press contacted me about writing a book, and that’s how we came up with the idea for Point Made.

Frankly, at first I became overwhelmed with the scope and scale of great advocates, great briefs, great cases, and great techniques. But I eventually decided to limit Point Made to 50 lawyers and 50 techniques.

How did you settle on the 50 top advocates?

Narrowing a million lawyers down to a few dozen of the most influential ones was fun but challenging. I tried to incorporate objective evidence, like formal lawyer-rating services that reflect anonymous client surveys. No two people would list the same top 50 advocates, but I'm confident these 50 are all superstars worthy of study and admiration. I’m open to hearing who should make the next edition of the book.

Why is Obama on the list? What is Obama like as a legal writer?

By any measure, Barack Obama is the most influential lawyer alive. Many people forget that he practiced law for years, signing several briefs filed by a prominent Chicago civil-rights firm.

I include excerpts from a cert petition that Obama signed in a dispute about the Voting Rights Act, his academic specialty at my alma mater, The University of Chicago Law School.

The brief reflects first-rate legal writing under any standard.

What about Justice Kagan?

Before being named the first female Solicitor General, Kagan's legal writing was mostly academic. Once Obama named her Solicitor General, she signed many briefs. Those briefs are in the finest traditions of that office: lucid, incisive, and flowing.

That's why I am so pleased to include excerpts from Kagan's writing, particularly from a brief she signed and argued in an animal-cruelty case called U.S. v. Stevens.

Do the lawyers profiled in this book really write better than others?

They certainly do. That doesn't mean that their writing is flawless—nearly all of them have an occasional clunker sentence, and some of them have signed motions or briefs that are second-rate at best. Even when someone like Chief Justice Roberts teams up with others to write a brief, I notice that the style changes, and not always for the better.

How do we know that the lawyers you cite actually wrote the briefs they signed?

Many of these lawyers play a more active role than you might think in the word-by-word writing and editing. That said, when it comes to who wrote what, I've seen some revisionist history. When I praise a brief signed by several lawyers, each lawyer remembers writing nearly every word. And if I ever criticize a brief, I hear stories about how "so-and-so" did the actual drafting and that the signatories just signed it before filing.

To paraphrase Colin Powell, you sign it, you own it. And that works in both directions.

But here’s the bottom line: if I have an excerpt in the book, it’s because I think it’s a helpful model for my readers. That was the main criterion that drove me in writing the book.

How did you end up teaching lawyers how to write better?

In a roundabout way. My background before law school included graduate work in comparative literature, professional experience as a translator, and stints in editing and publishing. I did practice at a major law firm but left to teach law at GW, work as an investigative reporter, and start a brief-writing consulting firm.

One of the firms I wrote briefs for asked me to put together a program on how to write a better brief, and that’s how my company, Legal Writing Pro, got started.

After a while, more firms invited me to speak, and then my work expanded to federal agencies, corporations, international engagements, and, more recently, groups of judges.

I’ve found a lot of demand for my services. On the one hand, a well-kept secret in this profession is that most lawyers have trouble writing well. At even the most prestigious and expensive law firms, the partners rip the associates' drafts to shreds. A simple four-page motion often undergoes ten revisions--all billable to the client. On the other hand, the very best writers in the profession are never satisfied with their own prose. They are always hungry for new techniques and new approaches.

Why is persuasive writing so hard?

For one thing, the law is abstract and complex, challenging even the greatest minds. For another, lawyers are often hired based on their ability to perform well in law school, which mostly involves taking tests, not on their ability to write a compelling motion or brief.

In helping lawyers write better, I have based my recommendations on candid feedback from the "consumers" of persuasive writing, including judges, clients, and other lawyers. I've also studied how the profession's most in-demand advocates write differently from other lawyers.

Can great writing be taught?

Literary novels and poetry require talent. Nonfiction writing is more of a skill. In the book, I explain in 50 steps how the greatest legal writers do what they do.

Why not just print out a lot of good briefs and read them?

Reading great writing is enjoyable, but it won't necessarily help you write any better. It's a bit like going to a top restaurant. You can enjoy and admire your dinner, believing in all your heart that the chef is worth five stars, but that doesn't mean that you'll go home and make more delicious food yourself. You need to break the differences down into concrete steps.

The same goes for writing. Many people read the New York Times or the Wall Street Journal in the morning, but few of us can write anything like the crisp, clean, vivid prose that such papers produce every day.

Can a non-lawyer use these techniques?

Without a doubt. Great legal writing is great writing that just so happens to be about the law.

So who's the best writer of all these lawyers?

That's a tough question. On the appellate side, I'd say that Chief Justice John Roberts may be the best advocate alive, with Maureen Mahoney a close second. Mahoney is one of the most lucid writers in the profession, though the Chief Justice's writing shows even more flair for language and an uncanny knack for creating analogies and examples. I know he was renowned for similar skills on the oral-advocacy front.

On the trial side, I’ll single out David Boies and Fred Bartlit. Both are top-tier trial lawyers; Boies, for example, represented Al Gore in Bush v. Gore and more recently joined up with Ted Olson to fight California’s Prop. 8. Boies and Bartlit both have vast experience with juries that helps make their writing intimate, direct, and compelling.

Quite a few people have been asking me how I came up with my list of Top 50 advocates.

I think all of these "Top 40"-type lists are somewhat arbitrary. I tried to limit myself to the 50 "most influential" advocates, whether they be appellate stars, trial/ plaintiffs lawyers, or figureheads like Obama or the ABA President.

Otherwise, I used these three criteria in creating my list:

Living advocates
Actual advocates (in other words, people who have written many briefs). That's why I ended up with Judge Easterbrook, who was the deputy solicitor general, but not Scalia, who's a great opinion writer but who has never really served as an advocate.
People who showed up on many other lists, particularly on Chambers & Partners rankings, which rely mostly on client opinions and thus are not so much of a popularity contest.

What's interesting, at least to me, is that even after narrowing 1 million lawyers down to just 50, I've found that a lot of these 50 advocates are unknown. I think the profession as a whole could do more to identify and promote standout performers like these. For example, I just asked some female associates if they could name any top female appellate advocates. They couldn't name a single one, even though at least a half dozen are in the upper echelons of appellate practice.

What say you? What would be a different (or better) way to come up with a list of names? Is anyone conspicuously absent from my list?

Ari Kaplan Interviews Ross About Point Made

Ross Talks About His New Book, Point Made

Choosing the Top 50 Advocates

Five Grammar Myths

Kagan vs. Scalia: Who Won Round One?

Looking Good: Five Tips