Legal Writing: A Judge's Perspective on the Science and Rhetoric of the Written Word

by Robert E. Bacharach

Overview

"Effective legal writing calls not only for artistry but also for scientific understanding." In this synthesis of his experience on the bench and his own research into the science and art of written communications, Robert E. Bacharach, a federal court judge, shares his insights on ways language can determine different responses -- and how to use this knowledge to craft a powerful and persuasive message.

Judge Bacharach follows a logical progression in crafting effective legal writing, beginning with the importance of an introduction that provides a context for the argument. At this stage, it is important to consider clarity, context, identification of the underlying legal issues, the structure of your argument, and stating the rationale for the optimum outcome.

Subsequent chapters look at specific aspects of effective legal writing, including:

• Organization - the guiding principles of parallelism, logical sequence, and developing the point before responding to the adversarial argument
• Headings - creating a familiar context to make it easier for readers to follow your argument
• Fact sections - the importance of a clearly written summary of legal facts that is readily understandable
Sentences and paragraphs - in-depth commentary on structural issues such as varying the length of the sentence structure to key rhetorical devices, all to make the reader follow the flow of the argument
• Diction - how to choose the right word (and why)
• Grammar - the most essential rules to follow for effective legal writing
• Conclusions - how to end strong with a concise reminder of the core points
• Quoting - when--and when not--to use it
• Typography and page layout

Throughout the book, Judge Bacharach illustrates his points with real-world examples from lawyers and judges. As Lisa Blatt of Williams & Connolly states, this is an "easily readable and comprehensive catalogue of do's and don'ts that provides the essential foundations for clear, persuasive legal writing . . . From diction to grammar, and alliterations to aphorisms, this book is mandatory reading for law students and lawyers alike."

Product Details

ISBN-13:	9781641056601
Publisher:	American Bar Association
Publication date:	10/15/2022
Sold by:	Barnes & Noble
Format:	eBook
Pages:	184
File size:	774 KB

About the Author

Judge Bacharach was appointed in March 2013 as a United States Circuit Judge for the Tenth Circuit Court of Appeals.

He graduated with High Honors from the Universityof Oklahoma with a B.A. in History and the Tom Lottinville Award for the Best Essay submitted in the History Department. He obtained his Juris Doctorate from Washington UniversitySchool of Law in St. Louis in 1985, where he graduated order of the coif and was awarded the Breckenridge Scholarship for the second highest grade average in his senior year of law school. In law school at Washington University, he also served as the Developments Editor of the Washington UniversityLaw Quarterly (now named the Washington UniversityLaw Review) and was awarded the Mary Collier Hitchcock Prize for writing for the best Note (student article) in the law review.

Upon graduation from law school, Judge Bacharach clerked from 1985 to 1987 for Judge William J. Holloway, Jr., who was then the Chief Judge of the Tenth Circuit Court of Appeals. After completing this clerkship, Judge Bacharach practiced civil litigation at Crowe & Dunlevy in Oklahoma City, Oklahoma from 1987 to 1999. He then served as a U.S. Magistrate Judge in the Western District of Oklahoma until 2013, when he was appointed to the Tenth Circuit Court of Appeals.

Judge Bacharach authored the recently published book on legal writing, Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word, published by ABA Press. He has also authored Section 1983 and the Availability of a Federal Forum: A Reappraisal of the Police Brutality Cases, 16 Memphis State UniversityLaw Review 353 (1986); Section 1983 and an Administrative Exhaustion Requirement, 40 Oklahoma Law Review 407 (1987); AMotions in Limine in Oklahoma State and Federal Courts, 24 Oklahoma City UniversityLaw Review 113 (1999); Dirks v. SECs Footnote Fourteen: Horizontal and Vertical Reach,62 Washington UniversityLaw Quarterly 477 (1984); and Post-Trial Juror Interviews by the Press: The Fifth Circuit's Approach, 62 Washington UniversityLaw Quarterly 783 (1985). In addition, he and Professor Lyn Entzeroth (now Dean of Tulsa UniversitySchool of Law) coauthored Judicial Advocacy in Pro Se Litigation: A Return to Neutrality, 42 Indiana Law Review 19 (2009).

Judge Bacharach was also honored with the national Federal Bar Association’s Earl W. Kintner Award.

Table of Contents

Preface ix

Prologue xi

About the Author xiii

Chapter 1 Introductions 1

1 Context 1

2 Deciding Where to Begin 3

3 Identifying the Issue 7

4 Stating the Conclusion and Rationale 10

5 Concision 11

6 Identifying the Structure 13

Chapter 2 Organization 19

1 Guiding Principles 19

1.1 Using a Parallel Structure 19

1.2 Using a Logical Sequence 21

1.3 Developing Your Point before Responding to the Adversary 21

2 Editing for Clarity 22

3 Choosing the Sequence 22

4 Making the Organization Explicit 23

Chapter 3 Headings 25

1 Using Textual Headings 25

2 The Purpose of Headings 26

3 Focusing the Reader's Attention 28

Chapter 4 Fact Sections 31

1 Clarity 31

2 Organization 32

Chapter 5 Sentences 37

1 Transitions 37

1.1 The Function of Transitions 37

1.2 Putting Old Information before New Information 38

1.3 Starting a Sentence with Conjunctions 41

2 Sentence Length 41

3 Separation of Subject and Verb 46

4 Emphasis 49

4.1 Repetition 49

4.2 Placement within the Sentence 56

4.3 Placement in the Paragraph 59

4.4 Use of Punctuation 60

4.5 Inversion of Sentences 61

4.6 Antonomasia 63

4.7 Metaphor and Simile 64

4.8 Aphorism 66

4.9 Literature and Art 67

5 Use of Nouns 69

5.1 Concrete Nouns 69

5.2 Nominalization 70

5.3 Noun Plague 72

5.4 Noun Phrases as Subjects 72

6 Vivid Verbs 73

7 Expletives 90

8 Throat Clearing 90

9 Active and Passive Voice 91

10 Adjectives and Adverbs 95

10.1 Couplets of Nouns/Adjectives and Verbs/Adverbs 95

10.2 Use of Nouns as Adjectives 96

10.3 Use of That as a Complement 97

Chapter 6 Paragraphs 101

1 Function 101

2 Topic Sentences 102

3 Building on the Topic Sentence 105

4 Referring to Authorities 106

5 Sentence Pattern 107

Chapter 7 Diction 109

1 Using Simple Language 109

2 Elegant Variation 111

3 Avoiding Redundancies 111

4 Replacing a Phrase with a Word 112

5 Avoiding Legalese and Latin 113

6 Clichés and Vogue Words and Phrases 114

7 Referring to Parties and Other Entities 115

7.1 Acronyms 115

7.2 Parties' Names Rather Than Their Litigation Status 116

8 Usage 116

Chapter 8 Grammar 123

1 Punctuation 123

1.1 Descriptive Information 123

1.2 Terminal Punctuation 125

1.3 Semicolons 125

1.4 Compound Adjectives 126

1.5 Bullet Points 126

2 Pronouns 126

2.1 Referent 126

2.2 Use of the Correct Form 128

2.3 Singular and Plural Forms 128

2.4 Reflexive Pronouns 129

2.5 Intensive Pronouns 129

3 Gerund Phrases 130

4 Dangling Participles 130

5 Dangling Infinitives 131

6 Contractions 131

7 Modifiers 132

7.1 Placement 132

7.2 Content 134

8 Use of Nouns 136

8.1 Collective Nouns 136

8.2 Compound Nouns 136

8.3 Singular or Plural 137

9 Verbs 137

9.1 Number 137

9.2 Tense 138

9.3 Person 140

9.4 Compound Predicates 140

10 Adverbs 140

11 Parallelism 141

12 Prepositions and Prepositional Phrases 141

12.1 Placement 141

12.2 Prepositions with Verbs 142

12.3 Ending a Sentence with a Preposition 143

13 Possessives 143

14 Hyphens 143

15 Correlative Conjunctions 144

Chapter 9 Conclusions 147

Chapter 10 Quoting 149

1 Overuse 149

2 Weaving the Quote into Your Point 149

3 Avoiding Boilerplate Quotes 151

4 Excising Immaterial Parts and Block Quotations 152

Chapter 11 Typography 153

1 Page Layout 153

2 Punctuation Styles 154

3 Fonts 155

4 Character Spacing 155

5 All Caps 156

6 Headings 156

7 Bulleted Lists 157

8 Justification 157

9 Spacing between Sentences 157

Editorial Reviews

"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

From the Publisher