The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
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EFFECTIVE LEGAL WRITING TAKE A P.A.S.S. ON YOUR NEXT LEGAL DOCUMENT by Melissa N. Henke University of Kentucky College of Law You've just received a new client or a new assignment for an existing client, and you are ready to start drafting the necessary legal document. The document may be a letter to the client, a contract, a memorandum in support of a motion, or a request for admissions. The document is either one you've drafted more times than you can count, or perhaps it is one you have never before drafted. Either way, I encourage you take a P.A.S.S. on the document. Don't worry; I am not suggesting that you take a pass on writing the requested document. Rather, before you put pen to paper or fingers to keyboard, I encourage you to step back and consider the P.A.S.S. of the particular legal document. In other words, ask yourself the following: What is the PURPOSE of the document? a client, or draft another document."3 This means you must provide a frank and neutral assessment of the client's situation, even if that means the client may not like the answer. In contrast, the purpose of a trial or appellate brief is to inform and persuade.4 While attorneys usually focus on the second purpose — persuasion — they sometimes forget that the first purpose is to inform the judge of the relevant law and facts in a way that is easy to follow and understand. Attorneys must never assume judges are experts in any given area of law. They must also remember that judges have numerous other cases involving a variety of areas of law. In addition, while the drafting attorney is intimately familiar with the facts of the client's case, the judge is not. Thus, "you can help your cause immeasurably by briefly reorienting the judge to the fundamental principles and authority in your case"5 as you simultaneously and subtly persuade. AUDIENCE Second, ask yourself who the legal audi- ence is for the document. This will ensure both the organization and content of the document is effective and appropriate. Legal writing professors and practitioners alike place the utmost emphasis on audience. Correctly so. In a book first published in 2003, Writing for the Legal Audience, Wayne Schiess emphasizes the importance of writing with a particular reader in mind. He offers practical advice on how to write to more than a dozen legal audiences, including opposing counsel, trial and appellate court judges, clients, mediators, and consumers.6 He correctly counsels that you cannot use the same style for each reader, but instead must "adapt to the needs of … many different audiences."7 For example the primary audience of an office memorandum is other attorneys in the office. Because the document is attorney work product, it will not be seen by the court or the opposing party.8 As such, the memo should be "critical and candid."9 That said, a secondary audience may well Who is the AUDIENCE for the document? What is the SCOPE of the document? What STANCE should I take in drafting the document? The questions I have identified are not novel ones. Indeed, legal writing textbooks encourage law students to ask these questions each time they tackle a new writing assignment in a legal research and writing course.1 But even a busy, seasoned practicing lawyer could benefit from asking these big picture questions before turning to draft a new legal document. Doing so will ensure the lawyer makes good decisions about how to organize the document, what to include or omit from the document, how to best present the arguments, and what legal writing or formatting conventions to apply.2 16 PURPOSE First, ask yourself what the purpose of the document is, which will help you make effective decisions about what to include or omit from the document. For example, the primary purpose when drafting an internal office memorandum is to "give the attorneys in your law office the information they need to evaluate a case, advise B&B; • 11.13 Put our ERISA experience to work for your clients!! clients ERISA •Long-term Disability •Short-term Disability •Life/Accidental Death Insurance Do you have clients eligible to receive benefits under an ERISA plan? We can help. Early representation is key, so call us today.. today (859) 225-3731 THIS IS AN ADVERTISEMENT 201 W. Short Street, Suite 800 • Lexington, Ky 40507