Write Like You Talk: A Manifesto for Clear and Persuasive Legal Writing
By Ashley D. Burman
Some lawyers believe they are not good writers but are good public speakers: if given the chance to talk to the judge, they’d win their case.
It makes sense that speaking is more natural. Speaking feels alive. It allows us to have a dialogue with the court, and thus to try out our best arguments and see how they land. If they don’t, we can pivot mid-sentence. That creates efficient and effective communication.
Speaking also resonates with what we believe about good advocacy. Anyone who became a lawyer because they were inspired by “Legally Blonde” or “A Few Good Men” values good public speaking. Most of us didn’t imagine ourselves cooped up writing briefs all day long when we went to law school. We want to be in the courtroom — in action.
Being a good public speaker is important. But so is being a good writer.
Most decisions are won and lost on the briefs. By the time we get to the argument, the court has often made up its mind. Argument is a chance to answer the court’s questions, not to present the merits. And while the court can sometimes be swayed by a good oral argument, what they understand about the case is still shaped by the briefs.
This means that being a good writer is often more important than being a good speaker.
So where does that leave those lawyers who are most comfortable with their own voice (out loud)?
The key is simple: Write like you talk. Most of us are trained, starting in elementary school, to believe that writing is fundamentally different from speaking. It’s not.
Consider ways you naturally speak, but probably don’t write:
- Starting sentences with “And,” “But,” and “So.” Out loud, we do this constantly. But many lawyers shy away from it because it violates a rule we were taught in elementary school. And instead, we rely on heavy transition words like “therefore,” “accordingly,” and “however.” Rarely do we use these in speaking. We shouldn’t use them in writing either. They elongate transitions without adding clarity, making your writing harder to understand.
- Signpost continuously. The classic oral argument strategy is to tell the court we have three main points. And then repeatedly remind the court. We also learn to use a “fallback” strategy, like reminding the court about the standard of review. But somehow, we forget to do these when we write. Many briefs could be improved just by implementing these simple strategies on the page.
- Use ordinary words. Something about law school socializes us to use words on the page we would never say aloud. We love to write “pursuant to,” or “it is settled that.” Out loud, we would just say “because of,” or “under,” or “the law is clear.” So why don’t we write that way? It’s much easier to read and understand.
- Assume the listener can track abbreviations. Lawyers love abbreviating in briefs. One common way is to say “hereinafter” to introduce someone. I would never introduce my friend as “This is John Jerri Doe, hereinafter referred to as ‘Jerri.’” I’d just say, “This is Jerri.” Or I’d assume the listener knew when I said “Jerri,” after using her full name, who I meant. Lawyers should do the same in briefs. The court doesn’t need to be told that “Plaintiff Sally Sue” and “Sally” mean the same thing. They’ll get it.
- Use short sentences for emphasis. The most common sentence we use in oral argument is “No.” Or maybe “No, your Honor.” And then we explain why. We intuitively do this because short sentences pack more punch. But in writing, we love to use long sentences — most of which could be broken up into shorter ones. This makes our writing much harder to understand. Anyone who has tried to read Ulysses or The Federalist Papers knows how hard it is to track a run-on sentence. Don’t do the same in your writing.
- Sound like yourself. This is a big reason why we prefer speaking: it allows us to express our natural style. Many of us have never learned how to do this on the page. We stick to writing like that partner we worked for as a junior associate, whom we disliked. And then we wonder why we hate writing. But we can inject our own style into writing. It just takes practice — and confidence, something we can only gain if we work hard on our writing.
These simple strategies will help you start writing like you talk, and get on your way to being a better writer.
But the simplest way to start writing like you talk is to start reading what you write out loud. The judge for whom I clerked would sit and read every opinion that we drafted out loud with us before we finalized that piece of writing. We’d cringe inside every time there was a typo or awkward phrasing that we didn’t catch during proofreading, especially if it was obvious when said aloud.
This method taught me a valuable lesson about writing — and editing. Most of us don’t spend nearly enough time editing our own work. Reading aloud will help us notice where things could be simplified or said in a more conversational way.
Most of us don’t hate writing because we are bad at it, but because we were taught the wrong things about it. It’s time to unlearn those things. Judges don’t need a law review article. They need the case explained simply and succinctly so they can go on with their day.
Write like you talk. Your reader will thank you.
Ashley Burman is of counsel at the law firm Carney Badley Spellman PS, where she specializes in appeals and critical motions. As a former Ninth Circuit clerk, she loves writing. She can be reached at burman@carneylaw.com.
