|Oregon State Bar Bulletin APRIL 2011|
Good legal writing makes reading and understanding a document as effortless as possible for the reader. Documents may be easy to read when the writing is grammatically correct and stylistically clear, but making a document easy to understand requires more than that. To understand a document, the reader must know what point the writer is making and how that point is supported.
Writers must establish their point throughout a document, including at the beginning of the document, the beginning of each point within the document, and beginning of each sentence within each point.
Beginning a Document
Writers should begin every document with information that answers the question, What’s your point? The information needed to answer this question will vary by context, but generally will include the thesis of the document and as much contextual and organizational information as needed to establish a scaffold that will support and organize subsequent ideas.
To illustrate, assume that you are representing a client who is a government employee and who believes that her employer violated her right to free speech. In the course of this representation, you might produce a memorandum of your legal analysis of the issue, a client letter and a document to be filed with the court.
In a legal memorandum, you orient the reader to the discussion by beginning with a succinct introductory paragraph. That paragraph should inform the reader of your thesis, the legal context for your analysis and how you have organized your discussion. Let me illustrate each.
Your thesis would be the subject you plan to discuss:
This memorandum concerns whether the City of Willamette violated the free speech rights of our client, Vanita Bryan, when it prohibited her from reading Playgirl at the fire station, her place of employment.
Armed with this information, the reader is ready for the legal context. Legal context establishes how the issue is analyzed. At a minimum, it would include the test, but it also might include policy that establishes the foundation for the test.
Public employees do not relinquish their First Amendment rights of free speech because of their employment by the government. (cite) Instead, the interests of the government employee in commenting on matters of public concern must be balanced against the interest of the government, as an employer, in working efficiently. (cite)
From the test given in the last sentence, the reader will understand the source and significance of your organization, stated as follows:
This memorandum will examine 1) whether our client’s speech is a matter of public concern, and if so, 2) whether our client’s speech interests outweigh the government’s interest as an employer.
In combination, the thesis sentence, the legal context and the organizational context make the point of the document clear to any reader.
To more fully appreciate the significance of this introductory information, imagine that you are reading a document that failed to begin at the beginning, i.e., by identifying the topic. If the document does not begin with the thesis, but instead with the test or with organizational information, the burden would be on the reader to deduce the thesis. If the thesis is omitted, readers may be pages into the document before fully understanding its point. Whether the thesis is misplaced or omitted, readers must expend unnecessary cognitive energy to answer the question, What is your point? Frustrated readers, or even just busy readers, may not make that effort.
In a client letter, you similarly orient the reader to your topic, but your introductory paragraph would reflect the different purpose of this type of document, to advise the client, and therefore, be simpler. Consider this example:
Thank you for retaining our firm to advise you on whether your employer, the City of Willamette, violated your right to free speech when it prohibited the reading of Playgirl magazine at the fire station. Based on our analysis, we believe that you could be successful in your claim against the city. In this letter, I will summarize our analysis for you and then discuss what options are available.
The beginning establishes the point of the letter, and the ending establishes its organization.
In a court document, orienting the reader to your topic may be even simpler, depending on the nature of the document. If the document is a complaint, answer or reply, your first sentence would be a single sentence establishing that X complains, answers or replies. However, if the document is a trial memo or a memorandum in support of a motion, such as a memo of points and authorities, your introduction should include the same pieces as the introduction in a legal memorandum, but altered to reflect the persuasive nature of the document. Your thesis would be an argument rather than a neutral statement of your topic, and your organizational context would reflect the conclusions you want the court to reach. Consider this example of an introductory paragraph to a persuasive document, such as a trial brief:
The City of Willamette violated the free speech rights of Vanita Bryan when it prohibited her from reading Playgirl at the fire station when she was off-duty. Public employees do not relinquish their First Amendment rights of free speech because of their employment by the government. (cite). Instead, the interests of the government employee in commenting on matters of public concern must be balanced against the interest of the government, as an employer, in working efficiently. (cite) Ms. Bryant’s speech is a matter of public concern because of the important social and political articles included in the magazine, and our client’s speech interests substantially outweigh any interest the government has as an employer because our client reads this magazine only while she is off-duty.
Beginning a Point Within a
In addition to establishing the point of a document, writers need to identify clearly their individual points within the document. Within a document, every part of the analysis, whether elements that are required or factors that are considered, should begin with information that answers the question, What’s your point?
Good legal writing is not a mystery where the writer builds up to a thesis provided at the end. Instead, good legal writing lets the reader know up front what the thesis is, followed by the support for that thesis.
Providing the thesis first also helps to organize the discussion of an individual point because the purpose of the supporting information becomes more clear: it is included to define what the point means, and that has to occur before applying the facts of the legal problem.
Let me illustrate using one of the requirements for establishing whether a public employee’s speech is speech of public concern, the content of the speech. In a neutral evaluation, begin by letting the reader know the point being analyzed:
First, the court must evaluate the content of the speech to determine if it is speech of public concern. (cite)
You can almost hear the reader thinking: what do you mean by content? So, define the term for the reader, beginning with any direct definitions and then adding definitions deduced from the facts and holdings of cases. Relevant Supreme Court decisions include some general statements that help to define content:
The content of speech is of public concern when it concerns political, social or other concerns to the community, (cite), even if it is highly offensive, (cite). However, the content is not of public concern when it involves personnel matters or is personal in nature. (cite)
Again, you can almost hear the reader thinking: what do these general statements mean? So, illustrate what they mean by defining them more concretely with facts extracted from relevant decisions:
To illustrate, content reflected speech of public concern when it involved criticisms of the board of education, (cite); pressure to work on political campaigns, (cite); or comments about killing the president, (cite). In addition, content reflected speech of public concern when it involved a musical performance done in blackface. (cite)
However, content did not reflect speech of public concern when it involved remarks about internal office matters, including office morale, the need for a grievance committee and the level of confidence in supervisors. (cite) Content also did not reflect speech of public concern when it involved sexually-harassing comments and touching, (cite); racist and profane comments, (cite); or complaints about smoking when the person was complaining only for himself and not on behalf of others, (cite).
Now the reader understands exactly what the point is. When this information is applied to the facts of the legal dispute, the reader will easily understand how the facts of these cases may be relevant to the facts of the legal dispute, which you would discuss next in your analysis.
Beginning a Sentence Within
Finally, writers need to begin each sentence with information that answers the question, What’s your point? Sentences almost write themselves when the writer knows their analytical function. Consider the sentences in the previous example. When the point of the sentences was to define content, then the sentences began with what content includes or what content does not include.
Notice that none of the sentences in the example began with case names. Beginning with a case name is a good clue that the sentence is not structured well to answer the question, What’s your point?. That is because the point of the sentence is rarely to discuss cases generally, which is conveyed by case names or descriptive wording, such as the court discussed… Instead, the point was to define content, so that governs how the sentence should begin.
So, what’s your point? Do tell.
ABOUT THE AUTHOR
The author recently retired from teaching at Willamette University College of Law in Salem. Portions of this article are derived from her book, Legal Analysis & Communication (2009).
An archive of The Legal Writer articles is available here.
© 2011 M.H. Sam Jacobson