Writing to Win: The Legal Writer

by Steven D. Stark

Overview

From a master teacher and writer, a fully revised and updated edition of the results-oriented approach to legal writing that is clear, that persuades—and that WINS.

More than almost any profession, the law has a deserved reputation for opaque, jargon-clogged writing. Yet forceful writing is one of the most potent weapons of legal advocacy. In this new edition of Writing to Win, Steven D. Stark, a former lecturer on law at Harvard Law School, who has inspired thousands of aspiring and practicing lawyers, applies the universal principles of powerful, vigorous prose to the job of making a legal case—and winning it.

Writing to Win focuses on the writing of lawyers, not judges, and includes dozens of examples of effective (and ineffective) real-life legal writing—as well as compelling models drawn from advertising, journalism, and fiction. It deals with the challenges lawyers face in writing, from organization to strengthening and editing prose; offers incisive ways of improving arguments; addresses litigation and technical writing in all its forms; and covers the writing attorneys must perform in their daily practice, from email memos to briefs and contracts. Each chapter opens with a succinct set of rules for easy reference.

With new sections on client communication and drafting affidavits, as well as updated material throughout, Writing to Win is the most practical and efficacious legal-writing manual available.

Product Details

ISBN-13:	9780307888716
Publisher:	Crown Publishing Group
Publication date:	04/24/2012
Edition description:	Revised ed.
Pages:	320
Sales rank:	287,280
Product dimensions:	5.10(w) x 7.90(h) x 0.90(d)

About the Author

Steven D. Stark is a former cultural commentator for CNN, National Public Radio, and the Voice of America. He has written frequently for the New York Times, the Los Angeles Times, the Atlantic Monthly, and both the Boston Globe where he was an op-ed columnist and the Montreal Gazette where he was a world sports columnist. A former Lecturer on Law at Harvard Law School, he is a graduate of Harvard College and Yale Law School.

Read an Excerpt

Introduction to the New Edition

Good writing is timeless. Except, of course, when it’s not.

Periodically over the last ten years, I thought about revising my original book on legal and professional writing—Writing to Win: The Legal Writer. But as egocentric as it might seem, for a while I never found much I would change. Sure, some of the references marked the book as a product of a slightly earlier time—the references to the O. J. Simpson trial, Kenneth Starr, or “vice-president Al Gore.” But for the most part, the book seemed to illustrate the maxim that the principles of good writing don’t change all that much over time. A good brief in 1965—much less in the late 1990s when the book was written—is still a good brief today. Ditto for complaint writing, contracts, and even judicial opinions.

And yet: In a variety of ways, writing in many parts of the legal and business worlds has changed more since that book was written about a decade ago than in any comparable period over the last five centuries. “We shape our tools and then our tools shape us,” wrote the media theorist Marshall McLuhan a generation ago. Technological changes transform not only the methods of communication but their style as well. The invention of the printing press centuries ago not only altered the dissemination of information in Western cultures, it changed the way people spoke and the way they wrote—and there were constant complaints about it then, just like now.

In our time, of course, the recent development of computers, the Internet, and then smart phones (and all their manifestations, such as the iPad) has begun to do much the same thing. It’s undeniable that writing within the office and for clients is dramatically different than it was a decade ago. Whether we recognize it or not, that means that legal analysis and the ways we approach business problems have shifted as well.

These revolutionary changes are one of the subjects of this new edition of the book. In part, that makes this volume a primer on how to communicate successfully in this brave new world. Writing effective e-mails and shorter memos are skills very much at odds with the tools we acquire in school—where the goal is usually to be expansive and detailed as we display our knowledge in all its minutiae. These new forms of communication are also very different from the written and oral tools one needed to master to be a good lawyer or executive, circa 1990 and before.

Yet it’s not just these new forms one needs to master. Litigation and contract writing may not have begun to change much since the rise of e-culture. But they will, since it is inevitable that these documents will also be read differently as the years pass, as will even judicial opinions. Some courts now require e-filings. Justices Antonin Scalia and Elena Kagan read briefs on either an iPad or a Kindle, and they will soon be joined by many others.

It means, too, that a lawyer’s role and habits of mind will change as they have begun to do already. If the Internet, Twitter, and Facebook are altering the way we do our jobs and how well we do them, they’re changing the way we think as well. It was Professor Kingsfield in The Paper Chase who kept dwelling on the importance of “thinking like a lawyer.” How that’s changed at the beginning of the twenty-first century because of these technological shifts is the subject of this new edition too.

Perhaps unsurprisingly, this new focus reinforces many of the fundamental principles that writing teachers and books (including my previous volume) have been stressing for decades—use strong verbs or be concise—though the rationales for doing so have changed somewhat. Yet other suggestions are novel, as one might expect at the dawn of a new epoch.

This updated edition also has an increased spotlight on creative writing as it relates to the presentation of facts and argument, as well as a new section on how affidavits need to be better drafted so that they reflect the true voice of the person they are supposed to represent. And, throughout the text, there are new ideas and examples of both what to do and avoid.

There is an old Chinese curse: May you live in interesting times. Whether it’s a curse or not, we live in just such an era. So let’s begin to figure out how to adapt—the sooner the better.

Table of Contents

Introduction to the New Edition 1

Introduction 5

Part I The Fundamentals of Legal Writing 11

Chapter 1 Organizing Your Material 13

Chapter 2 The Rules of the Road 30

Chapter 3 The Mechanics of Editing 64

Part II The Fundamentals of Argument for All Lawyers 75

Chapter 4 The Art of Argument 77

Chapter 5 The Role of Narrative in Argument 94

Part III Writing in Litigation 111

Chapter 6 Writing the Facts 113

Chapter 7 Writing Arguments 143

Chapter 8 Writing Trial and Appellate Briefs, as Well as Affidavits 177

Chapter 9 Writing Complaints and Answers 199

Chapter 10 Writing in Discovery 214

Part IV Writing in Legal Practice 227

Chapter 11 Technical Writing 229

Chapter 12 Writing E-mail and Letters 243

Chapter 13 Writing Memos 261

Chapter 14 Drafting Contracts and Rules 268

Conclusion: The Real Damage of Bad Legal Writing 283

Appendix: The Sixteen Rules of Professionalism in Legal Writing 289

Bibliography 291

Editorial Reviews

"Steven Stark's Writing to Win does what I would have thought impossible: It paves a genuinely pleasurable path to better legal writing. There are not many law students of practicing lawyers -- or very many judges, for that matter -- whose writing couldn't be measurable improved by the methods Stark sets forth with clarity and wit in this invaluable guidebook." -- Laurence Tribe, Tyler Professor of Constitutional Law, Harvard Law School

"The book delivers what it promises. It teaches more than writing. It teaches you how to think, how to compose oral as well as written presentations. It even helps you at the start of the case, long before briefs are being written, to look for those facts that will win. It teaches you where eloquence can begin. Every lawyer, the experienced practitioner as well as the novice, should read it. It's a jewel of a book." -- Martin Garbus, Frankfurt, Garbus, Klein & Selz

Doubleday