Professional Skills
By Sue Carol Rokaw
> Be concise
> Be clear
> Be accurate
L
egal writing combines artistry and
wisdom: weaving critical facts into
the fabric of legal theory coupled
with knowing the most effective
way to communicate so that the finished
product fits the needs of your audience.
Nineteenth-century English theologian
Charles Haddon Spurgeon got it right when
he said: Wisdom is the right use of knowl-
edge. To know is not to be wise. Many men
know a great deal, and are all the greater
fools for it. There is no fool so great a fool as
a knowing fool. But to know how to use
knowledge is to have wisdom.1
Much has been written about legal writ-
ing: basic how-to-books2 and books that
aim to enhance your brief writing skills3 or
help you write concisely and accurately.4
As practicing lawyers, you have gone
beyond the academic approach offered in
law school legal writing classes and appreci-
ate that writing as a lawyer is not about say-
ing something that pleases you as the
author. Rather, the most important aspect of
legal writing, be it an interoffice memoran-
dum, a brief, a contract, or correspondence,
is whether the reader understands what you
are saying. Thus, another lawyer in your
office must quickly grasp your objective
analysis, the court must be persuaded, your
opposing counsel must know your clients
positions, and your clients must understand
what you are doing to protect their interests.
Communication experts say effective ver-
bal communication requires competence,
confidence, and focus.5 So it is with legal
writing. However, unlike verbal communica-
tion, for which the speaker is necessarily pres-
ent during the communication, legal writing
must stand on its own and reflect these quali-
ties to ensure the audience gets the point.
Competence is knowledge. Confidence is
the courage to take knowledge and put it
24 Survival Guide for New Attorneys
The Essentials of Good
Legal Writing
into action. Focus is understanding your pur- of the point. Like the restless listener, such
pose.6 Competence and focus are familiar readers question the writers confidence in
concepts to practicing lawyers. The Rules of the position taken.
Professional Conduct require attorneys to Centuries ago, the Greek tragic dramatist
possess sufficient learning and skill to per-
form legal services.7 Competence in legal
analysis further requires an ability to per-
form legal research and use legal authority,
whether statutory, administrative, or com-
mon law. Likewise, focus demands knowing
the purpose of your writing.8 However,
unlike competence and focus, confidence is
often elusive in the context of legal writing.
Brevity expresses confidence in writing.
The writer does the most who gives his
reader the most knowledge, and takes from
him the least time.9 Brevity is not about
shortness; even lengthy writings may be
brief in expression.
Achieve brevity through tightly crafted
sentence structure, word choice, and organi- Sophocles aptly wrote, Much wisdom often
zation. American dancer and choreographer goes with the fewest words.12 For example,
Isadora Duncan captured the challenge of the sentence, Despite the plaintiffs ongo-
writing a tightly crafted sentence when she ing treatment she was receiving after the
wrote, It has taken me years of struggle, accident from Dr. Kinder, the plaintiffs pain
hard work and research to learn to make one did not subside, can be revised to say, The
simple gesture, and I know enough about plaintiffs pain did not subside despite Dr.
the art of writing to realize that it would take Kinders ongoing post-accident treatment.
as many years of concentrated effort to write So, too, it is with word choice.13 Words
one simple, beautiful sentence.10 that are descriptive and compelling without
Direct, tightly crafted sentences that start being sensational are most easily digested
with the subject followed by a verb and limit and understood. Flamboyant language that
the use of prepositional phrases, adverbs, struts around the page like a peacock dis-
and dependent clauses keep readers on tracts readerswhether they are the court,
track.11 Just as speakers who talk in long opposing counsel, or your client.
wandering sentences laced with tangential Likewise, words that exaggerate every
comments find themselves facing restless point wear down and overwhelm readers.
audiences, so, too, do writers who use Present the truth as you see it; dont make
lengthy, meandering sentences. Readers will your readers struggle to find the truth.
simply skim over these sentences in search Nineteenth-century American theologian
Sue Carol Rokaw, currently an in-house counsel at Farmers Insurance in Los Angeles
with 15 years of law firm litigation experience, has taught legal writing and research
for many years.

Tyron Edwards said: Some so speak in
exaggerations and superlatives that we need
to make a large discount from their state-
ments before we can come to their real
meaning.14 For example, a brief that con-
cludes, The defendants flagrant and utterly
inexcusable failure to produce documents
that the plaintiff reasonably requested
absolutely justifies an award of sanctions,
is likely no more persuasive to a trial judge
than the more direct yet forceful statement,
The defendant presents no justifiable rea-
son to not produce the documents.
Organization remains the final key to
achieving brevity. Whether chronological, by
issue, or otherwise, the overall organization
of the piece should allow the reader to
understand your point quickly and easily.
The finest words in the world are only vain
sounds, if you cannot comprehend them.15
By reading the first sentence of each para-
graph of your completed writing, you can
check overall organization and determine
whether the reader can easily grasp the
thread that ties the entire work together.
The knowledge that you bring to your
work as a lawyer remains your biggest asset.
However, the brevity of expression and
knowing how to use it will lead to wisdom
during your years of practice.
1 Charles Haddon Spurgeon in THE NEW DICTIONARY OF
THOUGHTS 703 (1955).
2 See generally LYNN BAHRYCH & MARJORIE DICK ROMBAUER, LEGAL
WRITING IN A NUTSHELL (2003); ELIZABETH FAJANS, MARY R. FALK,
& HELENE S. SHAPO, WRITING FOR LAW PRACTICE (2004).
3 See, e.g., BRYAN A. GARNER, THE WINNING BRIEF (2004).
4 See, e.g., RICHARD C. WYDICK, PLAIN ENGLISH FOR LAWYERS
(1998).
5 R OCKHURST U NIVERSITY CONTINUING E DUCATION C ENTER ,
COMMUNICATE WITH CONFIDENCE (2003).
6 Id.
7 See CAL. RULES OF PROFL CONDUCT R. 3-110. See generally
MARGARET Z. JOHNS, PROFESSIONAL WRITING FOR LAWYERS 3-7
(1998) (reviewing professional responsibilities in pro-
viding legal opinions).
8 See LEGAL WRITING IN A NUTSHELL, supra note 2, at 1.
9 Sydney Smith in THE NEW DICTIONARY OF THOUGHTS, supra
note 1, at 719.
10 Isadora Duncan in THE NEW DICTIONARY OF THOUGHTS,
supra note 1, at 719.
11 See generally PLAIN ENGLISH FOR LAWYERS, supra note 4,
at 35-56 (explaining use of short sentences and word
arrangement).
12 Sophocles in THE NEW DICTIONARY OF THOUGHTS, supra
note 1, at 703.
13 See generally PLAIN ENGLISH FOR LAWYERS, supra note 4,
at 57-83 (describing word selection); see also THE WINNING
BRIEF, supra note 3, at 225-270 (explaining various aspects
of word choice).
14 Tyron Edwards in THE NEW DICTIONARY OF THOUGHTS, supra
note 1, at 714.
15 Anatole France in THE NEW DICTIONARY OF THOUGHTS, supra
note 1, at 715.
By Karen Smith
Alternative Dispute
Resolution Primer
A
lternative dispute resolution is an
efficient and economical alterna-
tive to time-consuming, expensive
litigation. Once a cottage indus-
try, ADR has gained widespread acceptance
by the public, the legal community, and the
courts. A vast body of statutory and case law
governs the process in California.
ADR takes many forms, the two most fam-
iliar being arbitration and mediation. Within
these two common processes, there are dif-
fering requirements, rules, and expectations.
ADR also encompasses other forms, including
a mediation-arbitration combination referred
to as med-arb, neutral evaluation, and the
appointment of special masters.
Arbitration is the most popular nonliti-
gious method to resolve disputes wherein
one or more arbitrators bring conclusion to a
matter with a legally binding award. Local
and federal laws govern arbitration.
However, these rules may be modified by
contractual or stipulated agreements. In
California, the Code of Civil Procedure1 gov-
erns the rules and procedures for arbitration.
Parties in arbitration typically have legal rep-
resentation.
Arbitration is appropriate when a dispute
has a particularly high dollar value, one or
both sides refuse to consider settlement, the
parties wish to avoid the time and expense
of a full trial, or the cost of a trial is dispro-
portionate to the amount at stake.
Arbitration also may be preferred when a
case is highly technical and the parties need
a qualified expert to resolve the dispute, the
confidentiality of the records or the nature of
the dispute is desired, and/or a binding
award is required.
Karen Smith is the managing director of the Arbitration Mediation Conciliation Center,
a full-service dispute resolution firm, and has worked in the ADR industry for more
than 18 years. She is an executive board member of the California Dispute Resolution
Council and the vice chair of the ABA Dispute Resolution Section Training Committee.
Survival Guide for New Attorneys
Professional Skills
Most arbitration results from a contrac-
tual obligation entered into by the parties
prior to the dispute in an effort to remove
the matter from the court system. The dis-
pute resolution/arbitration clause in the
contract instructs parties on the details of
> Nature of dispute indicates
methodology to use
> Arbitration, mediation,
med-arb, neutral evalua-
tion are viable options
> Special masters can be
appointed
resolving a dispute. It typically includes pro-
cedural directions, the arbitration forum,
who is bound by the clause, and what issues
are included. Case law has held that arbitra-
tion clauses must be conscionable to be
valid, meaning that an arbitration clause
cannot inappropriately favor one party more
than the other. Typically, each party is
expected to pay half of the arbitrators fee.
In addition to predispute contractual
arbitration, the superior court may order
arbitration proceedings, typically for cases
valued at $50,0002 or less. Court-ordered
mandatory arbitrations are the only instance
in which an award may be nonbinding,
which allows the parties to request a trial if
unhappy with the arbitrators decision, a
25