Good journal writing is simply a good writing. As in all effective composition, there are many rules to follow. Some are absolutely necessary for quality writing and others fit an individual author’s style. Here are the rules of legal writing that have the broadest application for the greatest number of law students. If followed closely, they should be of great use to those with no experience in law review writings.
Footnotes must conform to standards (outlined in the 17th edition of the Blue book) and should be formatted as endnotes appearing at the end of the full text of the paper and not at the bottom of each page.
Rule 1 - Keep it simple
Inexperienced writers often use more words than necessary to express an idea. The problem usually stems from usage of glue words such as the, by, and - articles and other kinds of words that string together the ones with meaning. When these are overused, a clever concept is so messy that the reader is lost in a confusion of connectors,
Usage of a few glue words is necessary to pull the sentences together. Many times, however, one glue word will do where several — a “glue phrase” — have been used. For example, a cumbersome sentence, overloaded with glue, might read as follows:
“He said no, for the reason that the price would have been too low, inasmuch as it would not have been in accordance with the statutory minimum”.
The sentence is improved by removing the complicated, verbose connectors and replacing them with succinct ones.
For the reason that
In accordance with
The simplified sentence then will read as below:
“He said no, because the price would have been too low, and would not have met the statutory minimum”.
The advice to cut out unnecessary words is not easy to take. Even though we may not think ourselves great writers, once we have composed something, we quickly learn to love it. As a mother loves her child, we love the brain child of ours. We cannot easily bring ourselves to carve off parts of it. We certainly cannot expect to do it in the warm flush of writing. Let your work get cold, then read it the next day and try, when you read it, to forget that it is your; pretend you are instead the person for whose eyes it is intended, reading it for the first time and as you cut, remember that you are not hurting the composition but only your parental pride of authorship.
Case comments are most often verbally obscured in two ways:
1) The use of words which are more complicate than necessary to convey the substance of the writing. Follow Ben Franklin’s rule “Never use a long word where a short one will do”. Simple words are easier to read. They free the reader to concentrate on your ideas instead of your terminology.
2) If your legal reasoning is as profound as it should be, the reader will already have plenty to think about.
Rule 2 - Avoid using verbs in passive voices
Active verbs make stronger sentences. Example: “courts apply a rule of reason analysis” rather than “A rule of reason analysis is applied by courts”.
Find a few paragraphs you have written recently and use your pink highlighter to mark all the passive verbs. Notice how the passive verbs have attracted awkward constructions and abstract nouns. Rewrite those paragraphs using the active voice. Get into the habit of using your pink highlighter to flag passive verbs in your own writing.
As you write, keep in mind that the word passive means the same as submissive, inactive and inert. Are these the qualities that you want your writing to have? If more than about one-third of your verbs are passive, you writing probably sounds stilted and unnatural and doesn't inform as forcefully as it could. Substitute strong verbs for weak, inert verbs whenever you can.
Rule 3 - Remember Basic Rules of Grammar
Maintain agreement between the subject and verb. Example: “The repetition of salient points aids in a court’s determination” rather than “The repetition of salient points aid in a court’s determination. “Use past tense in the facts, history, and instant case sections to coincide with the word HELD in the fact statement. Use present tense in the analysis and conclusion sections as appropriate. Present and future tense may properly apply within the context of individual case comments. Consistent tense should be maintained within a paragraph. Similarly, footnote tense should coincide with the tense used in the text.
Maintain parallelism as to prepositional phrases and sentence structure. For example “We judge our friends both by their words and by their actions” rather than “We judge our friends both by what they say and actions.”
Rule 4 - Check Spelling
Spell check programs fail to catch many spelling errors and should not be used as a substitute for careful proofreading.
Rule 5 - Perfect transitions
Without smooth transition techniques throughout, the comment cannot achieve clear expression, cohesiveness, and topical structure. There are three levels of transition in a case comment:
1. Transitions between sentences in a paragraph.
2. Transitions between paragraphs.
3. Transitions between the several sections of your paper.
A transition sentence may stand independently as well as introduce the reader to the subject matter of the sentences or paragraphs which follow:
Example, recently the sexual revolution introduced the conflict between privacy and free speech interests to the arena of sex-related communication.
The foregoing, sentence from a case comment serves several purposes:
1. By itself, the sentence informs the reader that the controversy is new and did not exist prior to a certain time.
2. The sentence informs the reader that the competing interests are the right of privacy and free speech, thus setting up future technical discussion.
3. The sentence introduces the subjective nature of the competing interests, which are referenced in the next sentence.
Rule 6 - Strive to Maintain Reader Interest
Superior case comments are distinguished in part by their ability to maintain reader interest. Two fundamental rules, which may help to establish an interesting writing style, are set forth below:
1. Vary sentence structure: Alternate between using introductory clauses, simple sentences, compound sentences, etc. Sentences should vary in length, complexity and style.
2. Avoid repetitious phrases: Phrases involving the court are most
abused, especially at the beginning of sentences, such as “the court said …. indicated ….. reasoned …… viewed” etc. Some effective alternatives include phrases using the words recognizing, reacting, combining, distinguishing, reasoning or reaffirming.
Other Miscellaneous Rules:
· AVOID using I, me, the author, present writer, or similar terms. References to the writer do not belong in the comment.
· AVOID using hedging statements such as arguably, apparently, it is suggested that, etc. The comment is not a memorandum of law or appellate brief but a neutral, scholarly analysis of a case.
· AVOID using quotations in the text. Paraphrase and distill what was said, referring to the sources in the footnote. Unless the precise words inevitably lose their accuracy or value as a result of paraphrasing.
· AVOID using mechanical means, such as underlining or quotation marks to create emphasis. Emphasize through organization of material, accurate sentence structure and discrimination in diction and punctuation.
· AVOID using both numerical listings and parenthetical in text. These constructions indicate weak sentence structure.
· AVOID using the name of the case on which you are writing your comment. Instead, refer to this case as the instant case, the instant decision, or the present case.
“USE a minimum of three sentences in each paragraph.
· Rationale: The paragraph should completely develop your thoughts. If all you have to say could be said in two short sentences, then it is likely your thoughts should be combined with another paragraph of footnoted.
· USE gender neutral language except when referring to a specific individual.
Example: “Lawyers involved in ethical dilemmas should” rather than “if a lawyer is involved in an ethical dilemma he should.”