Wednesday, February 13, 2008

Summaries in legal writing, part 1

16 Austin Lawyer 9 (Feb. 2008)

Every legal document should begin with a summary of some kind. This post highlights the importance of up-front summaries by quoting the experts and then offers advice in three before-and-after examples.
All legal writing should be front loaded. It should start with a capsule version of the analysis. It should practice the art of summarizing.
Joseph Kimble, First Things First: The Lost Art of Summarizing, 38 Ct. Rev. 30, 30 (Summer 2001).

By establishing the main points of a document before launching into a detailed analysis of the points, you show readers what information to look for.
Frederic G. Gale & Joseph M. Moxley, How to Write the Winning Brief 107 (ABA 1992).

Why is it important for legal writers to lead with their conclusions? There are three main reasons. . . . [1] It's more convincing. . . . [2] It's easier to read for the first time. . . . [3] A hasty or dimwitted reader can still understand it.
Steven D. Stark, Writing to Win: The Legal Writer 8-10 (Main Street Books 1999).

These experts say you should summarize up front. How do you do it? Three examples highlight some important principles:
  • give key information early
  • save tedious factual details for later
  • prefer specifics to abstraction for legal issues
Here are the examples, before and after:
Before--key information missing
Enclosed please find evidentiary documents, medical records, and affidavits in support of our settlement demand in the personal-injury case concerning Wes Anderton (“claimant”) and your client, Ranchland Properties, Inc. (“RPI”).
Don't leave readers wondering “what's the demand?” They'll skip to the end and read that first anyway.
After--give key information early
This letter contains our settlement offer of $132,500 with supporting medical records, affidavits, and letters.
Before--necessary but secondary factual detail
On February 10, 2005, the Court of Appeals sustained John Doe's (Doe) complaint that the State's notice of enhancement was untimely and remanded the case to the trial court for a new punishment hearing. See [citation]. The State timely filed a motion for rehearing on February 14, 2005. The Court of Appeals denied the State's motion for rehearing on March 2, 2005. The State then timely filed its petition for discretionary review (PDR) on March 16, 2005. This Court granted the State's PDR on September 28, 2005, with the notation that no oral argument would be permitted.
Five dates in one paragraph is a lot of secondary detail to wade through.
After--save tedious factual details for later
The Court of Appeals sustained John Doe's complaint that the state's notice of enhancement was untimely and remanded the case to the trial court for a new punishment hearing. See [citation]. The state sought a rehearing, which the Court of Appeals denied. The state then filed a petition for discretionary review; this Court granted the petition but without oral argument.
Before--an abstract issue
On September 13, 2005, defendant was convicted in the Jackson County Court of a violation of MRS 28-445(b). He was sentenced to 5 to 20 years. On appeal to the Court of Appeals, the sentence was affirmed. We reverse.
When framing a legal issue, some detail is necessary to get the reader grounded.
After--prefer specifics to abstraction for legal issues
The defendant was convicted of delivering between 50 and 225 grams of cocaine, which presumptively requires a prison term of 10 to 20 years. But the trial court concluded that there were substantial and compelling reasons for departing from the statutory mandate, and imposed a term of 5 to 20 years. We hold that the trial court inappropriately considered a factor that was not objective and verifiable: the defendant's expression of remorse. We thus reverse and remand to the trial court for resentencing.
Coming soon: more advice and more examples.

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