Well, it's been a quiet week in the SCOTX and the Fifth Circuit, my home courts. Not a whole lot of opinions of note coming out this time of year.
Nevertheless, I was flipping through the recent offering from the Fifth Circuit, and my head kind of exploded.
Or it would have if the document had been written by a practitioner instead of an Article III Judge.
Article III judges have reached a station in life that they can force me to turn the pages if they like. Practitioners? Not so much.
After the break, a harmless rant on why you're not Agatha Christie and should not try to write like her.
Professor Schiess publishes one of my favorite legal writing blogs. He did a recent series on the importance of leading with a good summary and conclusion.
This is perhaps the reason for my apoplexy upon reading a recent Fifth Circuit opinion (it matters not which one) which began with a recitation of procedural matters, amendments to pleadings, refusals to permit amendment and various bankruptcy esoterica. It gave little indication of what the dispositive legal issue was and NO indication how the issue was decided until PAGE SEVEN.
Really? Seven pages of bankruptcy procedure? Such delayed gratification may work for Agatha Christie, but it does not work for a legal writer. We're not that good, and our subject matter is not that interesting.
I've written here and here on the importance of a good summary before, but some of the quotes on Professor Shiess' blog put it better than I could:
"Never build up gradually. Tell them everything in the first two sentences."
Hollis T. Hurd, Writing for Lawyers 16 (1982).
"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."
Timothy Perrin, Better Writing for Lawyers 98–99 (Law Soc. of Upper Canada 1990).
Am I making too big of a deal out of this? I don't think so. The most important and fickle resource you have is reader attention. If your brief reads like a who-dun-it instead of like a "he did it and I win" you run a very high risk that it won't be read or understood. Again from Professor Schiess:
"In general, you cannot force people to attentively read what they don't want to, even if they are being paid to do so."
—Philip A. Yaffe, The Gettysburg Approach to Writing & Speaking Like a Professional 46 (INDI Publg. 2010).
I bet even the judge I'm kvetching about now would conclude, "Do as I say, not as I do." Get to the point. Tell 'em what you're going to say. Say it. Then tell 'em what you just said.
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