Good writing can keep you on target

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By Karin Ciano
Dolan Media Newswires

Ten summers ago, after several years practicing law in New York, I moved to Minnesota to clerk for a federal judge.

A clerkship offers the thrill of repeatedly having to drop into a fresh problem, with no preparation other than legal training and knowledge of the English language, and — after reading a few dozen pages of motion papers — to make sense of what is happening and what the court is expected to do about it. Think tandem skydiving: the judge chooses the landing site, hands you the silk, and gives you instructions, and your job is to sew the parachute together on the way down. It usually works.

Seven-plus years of clerking did not make me an expert in patent law, or criminal law, or voting rights law, but it let me observe how good writing can help a decision-maker land smoothly and on target.

This is what sets legal writing apart: we write with a purpose, and that purpose is usually to help someone make a decision. Motions and appeals seek to convince a court; contracts and statutes direct the parties or the public to take action, and impose consequences for getting it wrong. We govern ourselves with words. And as lawyers, we have not only the obligation to read but also the privilege to write words that will have legal effect.

I used to read briefs for a living; now I write them. Which has reminded me of the obvious: It’s not as easy as it looks from a clerk’s perspective. Rules often conflict, and it’s not always clear which one prevails. Facts rarely match precedents. Words intended to clarify may have the opposite effect. Even worse, many new lawyers have never had the benefit of the comprehensive grammar instruction that used to be commonplace, yet they must write for senior lawyers who take proper grammar for granted.

And then there’s economics. Time is limited, lawyers are costly, and clients occasionally fail to grasp the value of good writing, leading to a paradox: Lawyers are generally expected to write well, but have few opportunities for deliberate practice.

As a former legal writing teacher, I believe in the power of reading good examples. But don’t take my word for it. If you’ve read the excellent book “Making Your Case: The Art of Persuading Judges,” by Justice Antonin Scalia and Professor Bryan Garner, you may be familiar with this advice to new legal writers from 7th Circuit Judge Frank Easterbrook, who said, “The best way to become a good legal writer is to spend more time reading good prose. And legal prose ain’t that! So read good prose. And then when you come back and start writing legal documents, see if you can write your document like a good article in The Atlantic, addressing a generalist audience. That’s how you do it: get your nose out of the law books and go read some more.”

In the coming months I’ll be writing about a variety of legal writing matters, but to start, I wanted to answer a common question: Which pronoun does ‘court’ take: ‘it’ or ‘they?’

This small point comes up in briefs more often than you’d think, possibly because formal written style is at odds with the conversational style most of us use every day. You’ll recall that pronouns and the nouns to which they refer (antecedents) must agree in person and number. Thus:

The defendants have been served with the complaint but they have not answered (third person plural).

Even if composed of several judges, a court is a singular common noun. In formal written English, singular nouns take singular verbs and pronouns:

The appeals court heard oral argument last month but it has not yet issued an opinion (third person singular).

What if calling a court it feels unsettling? If you’re wondering whether it’s better to be grammatically correct or socially awkward, remember you’ll be using this rule in formal settings where you’re referring to the court in its official capacity. De-personalizing is a sign of respect for the institution. Outside the courtroom, individual judges are still people, albeit very, very professional people:

I saw Judge X at your alma mater last week; she presented an award to a graduating student.

Judges Y and Z agreed to speak at our conference; they will lead the discussion on pro bono service.

So when referring to an individual judge’s or justice’s activities off the bench, use he or she; when referring to a group of judges or justices, they. But the actions of judges in the courtroom are the actions of the court — and when referring to the court, the correct pronoun is it.

Karin Ciano is the owner of Minneapolis-based Karin Ciano Law PLLC and director of Twin Cities Custom Counsel PLLC.