Robert E. Bacharach - Legal Writing: A Judges Perspective on the Science and Rhetoric of the Written Word

Praise for
Legal Writing: A Judges Perspective
on the Science and Rhetoric of the Written Word

Legal Writing: A Judges Perspective on the Science and Rhetoric of the Written Word more than lives up to its name, drawing on everything from cognitive science to great literature to illuminate its important subject. This erudite and elegant guide to advocacy explains not just the how of legal writing, but the why.

David Lat, Founder of Above the Law

A magnificent book on writing. Drawing on the lessons from psycholinguistics and rhetoric, Judge Bacharach has written a remarkably practical book on how to write effectively. Judge Bacharach illustrates his points with very specific suggestions and countless examples from briefs from top lawyers and opinions of judges. I learned so much from this wonderful book.

Erwin Chemerinsky, Dean, Berkeley School of Law

Judge Bacharach has authored the definitive playbook for legal writers. Whether you are a lawyer, judge, legal scholar or law student, this book will show younot just tell youhow to write more clearly, succinctly, gracefully, and powerfully. I plan to assign Legal Writing: A Judges Perspective on the Science and Rhetoric of the Written Word in my courses at Yale.

Robert Harrison, Lecturer in Legal Method, Yale Law School

I loved this book. An easily readable and comprehensive catalogue of dos and donts that provides the essential foundations for clear, persuasive legal writing. Judge Bacharach illustrates his points with accessible and fun-to-read excerpts from the opinions of Chief Justice Roberts, Justice Scalia, and Justice Kagan, as well as from social science and psychology. From diction to grammar, and alliterations to aphorisms, this book is mandatory reading for law students and lawyers alike.

Lisa Blatt, Williams & Connolly,
Chairperson of Supreme Court and Appellate Practice

Judge Bacharach has done the profession a wonderful service here. Students, lawyers, and judges alike will enjoy his lucid and thoughtful take on every facet of the legal writers craft. The tips and examples he shares are invaluable.

Ross Guberman, President of Legal Writing Pro

Cover design by Tahiti Spears/ABA Design

The materials contained herein represent the opinions of the authors and/or the editors, and should not be construed to be the views or opinions of the law firms or companies with whom such persons are in partnership with, associated with, or employed by, nor of the American Bar Association or the Tort Trial and Insurance Practice Section, unless adopted pursuant to the bylaws of the Association.

Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book is intended for educational and informational purposes only.

2020 American Bar Association. All rights reserved.

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission contact the ABA Copyrights & Contracts Department, .

Library of Congress Cataloging-in-Publication Data

Names: Bacharach, Robert E. (Robert Edwin), 1959- author. | American Bar Association. Tort Trial and Insurance Practice Section, sponsoring body.

Title: Legal writing : a judges perspective on the science and rhetoric of the written word / Hon. Robert E. Bacharach, Tenth Circuit Court of Appeals.

Description: Chicago, Illinois : American Bar Association, [2020] | Includes bibliographical references and index. | Summary: Effective legal writing calls not only for artistry but also for scientific understanding. Legal wordsmiths turned words and phrases into finely tuned aphorisms, just as van Gogh and Matisse turned blank canvases into brilliant combinations of color and light. Unlike most forms of art, however, effective legal writing serves primarily to explain and persuade. You cannot easily explain or persuade without considering how your intended audience will process your words. Thinking about the intended reader is natural. Is your brief going to a court overwhelmed by filings? Is the assigned judge likely to read the brief once or to reread it many times? Are opinions by the assigned judge long or short?Provided by publisher.

Identifiers: LCCN 2020015841 (print) | LCCN 2020015842 (ebook) | ISBN 9781641056595 (paperback) | ISBN 9781641056601 (epub)

Subjects: LCSH: Legal composition. | LawUnited StatesLanguage.

Classification: LCC KF250 .B33 2020 (print) | LCC KF250 (ebook) | DDC 808.06/6dc23

LC record available at https://lccn.loc.gov/2020015841

LC ebook record available at https://lccn.loc.gov/2020015842

Discounts are available for books ordered in bulk. Special consideration is given to state bars, CLE programs, and other bar-related organizations. Inquire at Book Publishing, ABA Publishing, American Bar Association, 321 N. Clark Street, Chicago, Illinois 60654-7598.

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TABLE OF CONTENTS

PREFACE

When appointed as a federal judge more than 20 years ago, I took pride in my legal writing. But as I read more and more briefs, I began to consider how I was affected by others language. Some language stymied, some persuaded. What was different? I wanted to know because my audience had changed. I was no longer writing for judges; I was writing for people whose lives were affected by the language that I chose, and I wanted to know how they would react to what I wrote. So I set out to learn what was driving my reactions to certain uses of language. My search took me in different directions.

I went to the briefs and judicial opinions by many legendary advocates and judges. What did these advocates and judges do to simplify complex ideas, to allow readers to breeze through the prose?

I looked to the magical language of orators like Winston Churchill and Martin Luther King Jr. Why do we cling to their words, and what did those orators do to create such memorable calls to action?

And I turned to psycholinguists, who study how our brains process language. Why do certain word combinations command our attention? How do word choice, punctuation, and the layout of a page affect the pace of our reading? What can we do to draw a readers eyes to particularly crucial passages?

Here is what I learned.

PROLOGUE

Effective legal writing calls not only for artistry but also for scientific understanding. Legal wordsmiths turned words and phrases into finely tuned aphorisms, just as van Gogh and Matisse turned blank canvases into brilliant combinations of color and light. Unlike most forms of art, however, effective legal writing serves primarily to explain and persuade. You cannot easily explain or persuade without considering how your intended audience will process your words.

Thinking about the intended reader is natural. Is your brief going to a court overwhelmed by filings? Is the assigned judge likely to read the brief once or to reread it many times? Are opinions by the assigned judge long or short?

But these questions simply skim the surface of how others read documents. Deeper insight comes from empirical data on how all of us read a given document. How much does someone remember after reading a document? And how does one increase the chances that a reader will remember the critical parts of an argument? This is the domain of psycholinguistics, which focuses on the structures and processes underlying the ability to express and comprehend the written word.