Summaries in legal writing, part 2
17 Austin Lawyer 6 (Mar. 2008).
Every legal document should begin with a summary of some kind. In part 2 on this subject I highlight the importance of up-front summaries by quoting the experts and then offering advice based on three before-and-after examples.
“All briefs should have a first-page, introductory summary, whether the rules require one or not.” Steven D. Stark, Writing to Win: The Legal Writer 144 (Main Street Books 1999).
“One of my partners says he begins the preliminary statement as if he had 30 seconds on the evening news to pitch his case. He shapes his opening like the lead sentence in a news article--focused and factual.” Kenneth Oettle, Making Your Point 85 (ALM 2007).
“In each part of your legal analysis, give the bottom line first, plainly and without fanfare.” Irwin Alterman, Plain and Accurate Style in Court Papers 97 (ALI-ABA 1987).
These experts say you should summarize up front. How do you do it? Three examples highlight some important principles:
- Drop outdated conventions like “single sentence” and ALL-CAPS.
- State, but condense, the key details.
- Skip formula openers and get to your case.
MAY A LAWYER WHO REPRESENTS A CLIENT IN A CONTINGENT FEE PERSONAL INJURY CASE ENTER INTO AN AGREEMENT WITH A LENDING COMPANY OWNED BY NON-LAWYERS UNDER THE TERMS OF WHICH THE LENDING COMPANY WOULD AGREE TO REIMBURSE THE LAWYER FOR LITIGATION EXPENSES IN THE CASE AS INCURRED AND THE LAWYER WOULD AGREE TO REPAY, IN THE EVENT OF A RECOVERY IN THE LAWSUIT, THE AMOUNTS ADVANCED PLUS A FUNDING FEE EQUAL TO A FIXED PERCENTAGE OF ANY AMOUNT RECOVERED IN THE CASE BUT SUBJECT TO AN AGREED MAXIMUM?
Issue statements need not be phrased in a single sentence; it makes for hard reading. And all-capitals writing is hard to read and comes off as yelling today.
After--drop outdated conventions
In a contingent-fee, personal-injury case, the plaintiff's lawyer arranges for a lender owned by nonlawyers to reimburse litigation expenses as incurred. If the lawyer recovers money, the lawyer will repay the money advanced plus a funding fee--a percentage of the recovery--that is subject to a maximum. Is this agreement appropriate?
Before--abstract and superficial
Whether substantial evidence of record supports the decision that Claimant was not disabled.In part 1, I advised you to “save tedious factual details for later.” But you must give at least some details or readers can't grasp the underlying issue and distinguish your case from others. Just condense the key details as much as you can.
After--state, but condense, the key details
In Harvey Reiner's disability case, the ALJ summarized the medical and other evidence in a lengthy decision. He considered Reiner's VA disability rating--and used that rating in a hypothetical question to the vocational expert. He also appropriately considered Reiner's alcohol use. The question now is whether substantial evidence of record supports the decision that Reiner was not disabled under the Social Security Act.
Before--a formula opener that repeats available information
COMES NOW the state of Texas, by and through the District Attorney for the 555th Judicial District of Texas, and files this response to the Defendant's Motion in Arrest of Judgment. The State contends that the Defendant is not entitled to the relief he seeks, and would show the court as follows: . . .This opener tells us the name of the filing party, the nature of this document, and the name of the initial document--all information we can get elsewhere and none of which tells us anything specific about this case.
After--skip formula openers and get to your case
James Overby was convicted of capital murder because he failed to get help after he brutally beat his infant nephew. We ask this court not to intervene in the entry of judgment on that conviction. The indictment and jury charge were sufficient to charge and convict of this offense. They contained the phrase “knowingly or intentionally” when applied to Overby's mental state. Although he asserts that “[t]he use of the disjunctive 'or' allowed him to be improperly convicted for acting knowingly, without acting intentionally,” that is incorrect because "knowingly" implies intention and has been so held by at least two Texas Courts of Appeals.