Froomkin's legal writing tips
Omit needless words.
Ruthlessly. See Strunk & White, The
Elements of Style, for details.
Short sentences are better than long ones. Always.
There is a presumption that the first sentence in each paragraph should
be the topic sentence. Do not overcome this presumption without a
The passive voice should be avoided like the plague. It should be
avoided not because it is boring, although it is, but because in the passive
voice verbs are used without a subject. "A crime had been committed"
lacks the punch of "The butler did it." Worse, the temptation to
use the passive voice often means that you are not sure -- or really
don't know -- who did it. Giving in to the temptation to obfuscate
that you don't know this important fact is bad. On the other hand,
noticing that you don't know, making a point of finding out, and sharing
the knowledge, can be quite good.
Beware pronouns. There is always a danger that your reader may not
be clear about what "it" refers to or who "he" was.
Think about logic flow. You should be making an argument about something.
Most of the paper will be proof of pieces in your chain of argument.
You should be able to diagram the flow of your argument.
A very serviceable paper structure has a first paragraph that announces
your conclusions, followed by a "roadmap" paragraph that tells the reader
what is coming. Then you tell them. A brief conclusion tells
them you told them.
Style & Mechanics
- Can you imagine why anyone would allow herself more than one rhetorical question per
50 pages? Or even any at all?
Any time you use find yourself using "latter" or "former" or "that" or
"such" to refer to something discussed earlier, replace one of the former
with an adjective, a noun, or an adjective phrase. Thus, for example, "the
former issue" becomes "the clarity issue."
Try to make your writing much like your speech: simple, direct, unpretentious.
Do not try to write like a court. Judges write badly. So do most
other legal writers
However, avoid contractions (don't use "don't"), slang, and jokes--even
if you talk that way.
Never use pretentious legalisms such as "the case at bar" or "the instant
case." Call it the Jones case.
Avoid long words when short ones will do better. "Utilize" reeks.
Do not sell too hard. Persuade; do not bludgeon. Avoid violent
Have the courage to be dull if this is the price of being clear. If your
ideas are interesting, they will carry the paper far better than a turn
Use the same word or phrase every time you mean the same thing.
Use the same simple sentence structure (subject, verb, predicate) as often
as you wish.
Legal writing is technical writing. Be suspicious of the fine phrase
or the fancy word. Especially the fancy word.
Always be specific. Instead of "in recent years" try, "since
Pick a tense and stick to it. Do cases hold, or have they held? I
do not care, so long as they only do one of those things. Of course,
you can use tenses to reinforce a temporal sequence: courts had held, developments
ensued, reformers argue, the result will be.
I am a great believer in the penultimate comma. English teachers
often are not, but I believe that technical writing--and believe me, legal
writing is technical writing--needs all the help it can get. A penultimate
comma works like this: "The four factors that affect good writing are clarity,
conviction, structure, and attention to detail and syntax." The last item
in this list is "attention to detail and syntax"; without the comma after
"structure" it would be unclear whether the final clause, joined with an
and, was one item or two (maybe the author cannot count and there are really
five items on the list?). The comma makes it clear.
It's means "it is." Its means "belonging to it."
Quote marks should only be used if you are quoting someone else, or in
a definition or definition-like use (e.g. the paragraphs directly above
and below this one). Do not use them for sarcasm or for
You cannot use "id." to refer to a note that has more than one source cited
in it, as it is not clear to which source the "id." refers.
Never, never, never use "etc."
Judicious use of inset quotes is fine. You probably should not use
more than one every five or ten pages unless doing close textual analysis
of a particular case, statute, or regulation, in which case it may be essential
to quote it at greater length. In general, it's not a good idea to
quote secondary sources at length unless you plan to beat up on them and
want to assure the reader that the idiot really said that stuff in his
own words. Remember that the average reader SKIPS the inset quote--so
you need to provide a little summary of it afterwards which will allow
the article to make sense when read in this manner.
- I endorse (and recommend you follow) Lawrence Cunningham's advice about
Legal argument is made up of logic or evidence, of appeals to authority,
and of arguments about policy.
Assertions are not logic. Logic is about proof of a proposition,
or at least the dis-proof of the opposite.
The judicious use of evidence requires a recognition of what it does not
prove as well as what it tends to show.
Not all authority is of equal weight.
A no-name is less persuasive as an authority than a major treatise by a
famous author, or a decision by the Supreme Court. Some lower court
judges have a reputation that makes their decisions more significant; but
most do not. If you rely on Prof. Joe Schmoe as your main authority,
do not trumpet Schmoe's name throughout your text. Schmoes belong in footnotes.
Justices Brennan and Scalia belong in the text.
Never rely on a secondary source (an article, a book), for the holding
of a case. Cite the case directly. Read the case yourself.
The alternative is malpractice. And low grades too.
Policy arguments are fine, sometimes great and wonderful, so long as the
reader is clear as to what kind of argument you are making, and to what
extent it reflects, comports with, or contradicts, existing law.
Number your pages
Blue book your footnotes.
If your software keeps putting footnotes on the wrong page, it's probably
Here's what to do in Word
2000 and Word
Here's the fix
for Word 97
Here's the fix
for Word versions 2.0, 2.0a, 2.0a-CD, 2.0b, 2.0c, 6.0, 6.0a, 6.0c &
Word for the Mac
approach to the problem
- And here's a new solution that should provide a permanent fix for the
problem (and others too).
Shepardize (or auto-cite) your cases. Don't be caught relying on
Please include your phone number and email address on the rough draft and
final copy. Be sure and make a copy in case mine meets with an accident.
I do not give last-minute extensions. I fail papers that are not
turned in on time without a PRIOR agreement regarding a Temporary Incomplete
(subject, always, to clemency for true medical emergencies and the like).
For good advice on everything from picking a topic to planning the next
article, see Eugene Volokh,
Writing a Student Article, 48 J. Legal Educ. 247 (1998). See also
on academic legal writing and his book (an expanded version of the journal article),
Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and
Getting on Law Review (2d ed.) [on reserve in the library] and Prof. Stephen Schnably's
advice on picking a topic and on writing a paper.
For a quick reminder of a few good rules of writing (almost as
applicable to a law paper as to its ostensible topic, the e-mail), see
How to Revise an Email So That People Will Read It. For a slightly longer treatment, with a lot of good advice to the beginning legal writer, see David Post Writing Guidelines: General Principles & Rules Of Thumb.
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Last modified: Aug. 21,