16 Austin Lawyer 13 (Dec. 2007 & Jan. 2008) (updated from a post on Nov. 2, 2007)
This piece is about dates, witnesses, and cases and their frequent appearances in topic sentences.Dates are not topics
In reading several briefs recently, I noticed that the facts often had a series of three, four, or even five consecutive paragraphs beginning with a date. “On September 30, 2006, . . .” Next paragraph: “On December 17, 2006, . . .” And so on.
It's common advice to omit a flurry of irrelevant dates: “Avoid over-chronicling--most dates are clutter.” So says Judge Mark Painter in his book The Legal Writer
: “We don't know what . . . if any, dates we should remember.” But even when dates are relevant, they're not the real topics. When you begin a paragraph with a date, you're saying the rest of the paragraph is about the date. That's usually not true.Witnesses are not topics
I sometimes see facts sections in which a series of paragraphs each begin with the name of a witness. It looks like this: “Dr. Cynthia Rao examined the claimant and testified that . . .” Then “Dr. Robert Eaton, a psychiatrist, examined the claimant . . .” And so on.
It's common advice to avoid presenting the facts by witness: “Never include the deadly witness-by-witness summaries of testimony that some brief-writers favor.” Judge William Whitbeck, Michigan Court of Appeals. More to the point, are the witnesses truly the topics you are writing about? Usually not.Cases are not topics
In documents containing legal analysis, I often see a series of case descriptions beginning with “in” and a case name: “In Whitmon v. McCarthy Supply Co.
, . . .” Then “In Anderson Consulting, Inc. v. Genier
, . . .” And so on.
Again, there's already solid writing advice on this: “Avoid starting any paragraph with the classic prepositional In
phrase with the case citation serving as the object of the preposition.” C. Edward Good, Mightier than the Sword
181 (1989). In most legal analyses, the cases are not the real topics.Why dates, witnesses, and cases?
Lawyers use dates, witnesses, and cases as topics for an obvious reason: it's easy. It's a default approach to organizing. I say default because the topics are already there. You do not apply fresh insight to determine the topics yourself and organize accordingly; you use the topics you've already got--dates, witnesses, and cases.
When you default to an approach that is already there, you do save time, energy, and effort. But you walk straight into this universal paradox of writing: easy to write is hard to read.Good writing is hard
The reverse of the paradox is also true: easy to read is hard writing. So when you write, figure out what the real topics are, organize around those topics, and use them in your topic sentences.
For example, in a brief responding to a claimant's appeal of a denial of disability benefits, your topics are probably the impairments the claimant alleges. Organize around those impairments and insert the dates and the witnesses as necessary.
In a memorandum discussing the standards for equitable adoption, your topics are the factors the courts consider. Organize around those factors and cite the cases as support for your assertions.
Creating your own topics is hard work, but it produces readable, persuasive writing.