Document design: double spacing

I dislike double-spacing in legal documents. I require my students to single-space all documents turned in for my class.

But if you single-space a document in Times New Roman 12-point type with 1-inch margins, the text is very crowded and difficult to read: the line lengths are too long.

So I recommend Times New Roman 13-point type and margins of 1.3 inches. See Garner, The Winning Brief, at 265.

Here are some common defenses of double-spacing with my responses:

"My boss requires double-spacing or the court rules require double-spacing."

• Okay. You have to follow the rules you are given. Don't turn your brain off.

"Double-spacing is more readable."

• Baloney. Only when compared to a poorly formatted single-spaced document. Generally, double-spacing is horribly unreadable. You can't see the structure of the paragraphs--a good clue that readers often use--because you often have just one paragraph on a page. You have to fly past all that extra white space between lines, and this white space serves no design function, unlike purposeful white space that can aid the reader. And think about the nonlegal reading you do every day: books, newspapers, magazines. Are any of them double-spaced? And you can read them just fine.

"Double-spacing leaves room to make comments and notes on the page."

• Yes, but I don't write on the page with a pencil or pen anymore. I require my students to submit papers electronically, and I use the comment function on my word processor to insert comments into the text. I do the same for the lawyers I tutor on legal writing. It works very well.

CLE: finding legal-writing seminars

Question
Do you happen to know of any quality CLEs for legal writing? I would greatly appreciate a recommendation.

Answer
I sometimes give a public legal-writing CLE presentation through the UTCLE department here at the University of Texas School of Law. If it is offered this year, it will be in September. Email UTCLE to ask about it.

I give private seminars for law firms and government agencies, too. (I'll be at Fulbright & Jaworski in Houston and at the Social Security Administration in Seattle this May). Your office can book one by contacting me.

Other speakers give public legal-writing seminars, too. Search the web.

But for a cheap and painless way to get CLE, check out CLEOnline.com. You can listen to audio files and get CLE credit in most states.

I have four legal-writing seminars available there. Just look for "Legal Writing."

Legal analysis: fixing the biggest weakness

As I said, I gave a seminar to lawyers who supervise others' writing, and I did not diagnose "lack of substantive understanding" as a possible cause of the confusing, disjointed writing some of the supervisors were seeing. I'm only human, after all. Not some SuperHero of writing, standing astride Mount Participle.

Yesterday I described what symptoms of "lack of substantive understanding" a supervisor might see in a piece of writing. Today I offer three suggestions for addressing the problem.

1. Require the writer to provide a one-paragraph summary of the conclusion and reasons in the document, whether it is a memo, brief, or letter. Clarify that this summary should be written after completing the main analysis in the document. The summary paragraph forces the writer to articulate the point of the writing. It's hard to do this if you don't know the material. Thus the up-front summary forces the writer to master the material or leaves you, the reader, with a clear diagnosis. I discuss summaries in chapter 11 of my book, Better Legal Writing.
   
   
2. Require the writer to write a short (10 words max) summary of every paragraph in the analysis and then, while reading through the summaries, ask these questions: Does this idea connect to the preceding one? Does the topic sentence reflect that connection? Then reconsider the paragraph order and the topic-transition sentences. I call this technique the "train of thought," and it is time consuming but effective. Before a writer can implicitly and explicitly connect every paragraph, the writer must master the material. Often, really poor organization reflects lack of understanding the material. I discuss this technique in chapter 6 of my book, Better Legal Writing.
   
   
3. Require the writer to meet with you and explain the analysis orally. Now lawyers tend to be much better at explaining something orally than in writing--or at least we master that skill earlier. For example, students can often explain something well when called on in class and yet not explain it well on a written exam. Still, the oral explanation should give you a good clue as to whether the writer understands the material.

Legal analysis: spotting the biggest weakness

So how do you know if the writing problems you see in a piece of legal analysis are just writing problems or are really failure to understand the substance?

The biggest clue is when the writing makes little sense. I don't know how else to say it. The writing is disjointed, disorganized, and sketchy to the point you can't be sure what the writer meant. Specific clues--

• You aren't sure which are the key authorities.
• You can't see clearly how those authorities apply to our problem.
• The issue posed on page one is not directly answered anywhere.
• The Conclusion section contains a new argument or a new authority.

These problems reflect poor analytical understanding. When you don't fully understand the authorities, you can't analyze well, you can't organize well, and you sound lost.

Caution: We sometimes assume the writer is just dim. It is not always so. I have seen people produce bad legal analysis for reasons besides lack of brain power:

• Haste. Up against a deadline and ran out of time.
• Volume. Working on too many projects and devoting too little time to most of them.
• Laziness. Instead of reading and understanding the authorities, the writer fills the pages with quotations and paraphrased passages that sound like legal analysis.
• Apathy. The writer just doesn't care enough to get the substance down.

So file this away as a possible "writing problem" in the writers you supervise. They didn't master the material. It happens.

Tomorrow, tips for diagnosing and fixing the problem.

Legal analysis: the biggest weakness

The biggest weakness I see in analytical legal writing is the failure to thoroughly understand the material. It's not easy to spot this weakness; it's much easier to notice comma errors, bad citation form, or wordiness, for example.

But yesterday I had an experience that reinforced my belief.

I spoke to a group of lawyers who work in legal-aid offices around the country. These lawyers hold supervisory positions, and the meeting focused on how to help those they supervise become better legal writers. That's a hard thing to do.

In their questions, I sensed frustration in trying help some lawyers improve their writing. Several asked what to do with someone whose writing is so weak the supervisor doesn't know where to begin.

No one said the writer didn't understand the material. Instead, they commented that the writing was--

• poorly organized
• disjointed
• confusing
• baffling

Some said they often had to simply rewrite the document themselves. Unfortunately, I did not identify lack of substantive understanding as a cause of writing weaknesses yesterday. Should have.

To any of those lawyers reading this blog: I (hereby?) apologize for failing to properly diagnose this problem, which I've known about for years. In tomorrow's post I'll explain why I should have identified the problem--and give suggestions for identifying the problem in the writing you see. The next day I'll suggest ideas for fixing it.

Objective analysis: frame your facts

In the previous post I said that in writing a persuasive statement of facts you should frame the factual setting before you go into the details. You should also do it in objective analytical writing. What works in briefs works in memos, too.

Here are the first sentences of two statements of facts from two memos. Before, the statements just start at the beginning of the story. After, each begins with a stage-setting sentence.

Before
Samuel Mills had worked as a flight engineer for United Airlines and its predecessor Pan Am for nearly thirty years when he was fired on December 15, 2004. . . .

After
This case concerns an employee who was told his firing was health related, but who later found out his employer had planned to cut costs by firing older workers. Samuel Mills had worked as a flight engineer for United Airlines and its predecessor Pan Am for nearly thirty years when he was fired on December 15, 2004. . . .

Before
Daniel Saldana and Adrienne Harbour both worked for successful software companies in Columbus, Ohio, when they met and began dating in July 2000. . . .


After
This memo addresses the unfortunate break-up of an engagement and the ensuing disagreement about who is entitled to the engagement ring. Daniel Saldana and Adrienne Harbour both worked for successful software companies in Columbus, Ohio, when they met and began dating in July 2000. . . .

Persuasion: frame your facts

What should you write in the first sentence or paragraph of your facts statement in a brief? How do these efforts strike you?

• On July 21, 1998, Defendant Jaysen Wright, traveling at about 80 miles per hour on Highway 102 in Keline, Texas, crashed into Plaintiff Sandra Gonzalez.
  
  
• On June 1, 1997, Wallace Barton began employment with the Alaska Commission on Wages as Assistant Director of Administrative Services.
  
  
• The Administrative Law Judge thoroughly set forth the relevant facts and hearing testimony in his decision of October 28, 1999.

These are not student-written briefs. I got these from real lawyers. Yet they all seem to suffer from the same writing malady: they jump into the story--usually at the beginning--without setting the stage. This is not to mention that they all seem unduly focused on a date.

That's great if you know the story or if you are ready to hear it from beginning to end. But for those unfamiliar with the story, jumping right in can be difficult.

Experts suggest you set the stage first. One book suggests "creating a container" before you pour in the details. See Armstrong & Terrell, Thinking Like a Writer at 18, 142.

I suggest writing a "framework" sentence or paragraph to quickly orient your reader to the scenario. It might even hint at the legal issue. Here are possible rewrites:

• This case arose when the defendant, Jaysen Wright, crashed his car into Sandra Gonzalez's car at about 80 miles an hour, thus depriving her of a vehicle for 32 days. [This brief sought compensation for her "lose of use" of the vehicle.]
  
  
• The Alaska Commission on Wages hired Wallace Barton as its Assistant Director of Administrative Services but fired him only 8 months later; Wallace contests the firing as wrongful.
  
  
• This appeal challenges the ALJ's finding that the plaintiff, Cliff Cierpinski, is capable of performing a significant number of jobs that exist within the national economy. The facts and the ALJ's amply supported findings are as follows:

Persuasion: start with a punch

I like a persuasive document (motion or brief) to use a "start with a punch" technique in the facts, the summary of argument, and the first paragraph under any main point-heading.

Specifically, I like to the see the facts, for example, start with something punchy--attention-getting--and favorable to the author's side. I like to see the first paragraph under a main point-heading start with an assertion about the case that is relevant to the legal argument to follow but phrased in favorable terms using factual detail. Here are some before-and-after openers:

Before
The grounds for establishing owner liability in dog-bite cases are well established in Colorado precedent.

• A dry and lifeless sentence introducing an abstract legal principle. Add a new opening sentence:

After
Robert Wilson knew his dog was vicious, and he should have known it could attack a child like the plaintiff, Samantha Garcia. The bases for establishing owner liability in dog-bite cases are well established in Colorado precedent.

Before
The Missouri Human Rights Act provides broad protection for those who allege or oppose discrimination.

• Lacks a human element. Rephrase to include the people:

After
The Missouri Human Rights Act protects one who opposes discrimination, such as Lee Convy, who was fired in retaliation after his wife reported sexual harassment.
.