Brief 25: Win with your writing

[Music] Welcome to the Advocacy Podcast, journey to excellence. We speak with Queen's Council, Trial Lawyers and Judges from around the world about how they excel in the courtroom. Please subscribe on your favourite podcast platform and visit us for additional resources at theadvocacypodcast.com. I'm your host, Beebe Badejo. In this brief yet potent episode, we welcome legal writing experts Ross Guberman and James Rappley Casey. He will shine a light on the art of written advocacy. From writing with intellectual verve to keeping it short, sharp and to the point, these insights will guide you in crafting compelling arguments that resonate. We of course re-lord Denning, doc, trinally. That's one of my concerns about the way the law is taught is you're never really even prompted to explore the way judges reason through opinions. We read them for the content, so we can spot the right issues on the exams. Lord Denning is certainly a beacon, I think, in this realm. There are others I've been reading this Irish justice. I've been reading a bit of his writing lately. Also fantastic. But of course, in the United States, Justice Scalia, Justice Kagan, Chief Justice Roberts, certainly those three. Then we do have, the advocacy side we have, we're very much a celebrity culture here. That even permeates a palled advocacy and trial work. There are stars and celebrities with looks like PR teams quietly on retainer. There are some really great advocates here as well. Paul Clement is the one name. People cite a lot, but there are quite a few others too. Then I've also studied the work of the Office of the Solicitor General, which is the federal government entity that represents the United States. The common thread is there's a certain joyousness in the prose. It's joyousness about kind of intellectual happiness or verve that manifests itself at the level of words and phrases. So that can vary from person to person, but there's a certain spirit. There's an energy. You feel it, but the energy is not rhetorical. It's not energy attached to snide attacks on other judges or lawyers. It's a little bit of fun, right? And of course, you need to have a lot of confidence and have completely mastered the substance of what you're writing about in order to convey that spirit. That's what I see, kind of linking all these people from various jurisdictions and eras and people in different roles is that kind of verve. My general experience and a little bit, this is also a little bit my critique about the way legal writing is taught is there's too much focus on abstractions like sentence length. And someone reads nobody's thinking, you know, that sentence had 32 words. I'm sure it could have been 29 or 28.5 words. Nobody really, really cares about length of sentences in the abstract. What they're picking up on when they feel like the sentences are long and short is very often not mathematically that the sentences are long and short. It's a feeling again, unverven, forward motion. So by focusing one kind of in the affirmative sense, what kinds of words and phrases am I going to cut in trim so that my actual point shine on the page, that's generally your best path to being more concise. I mean, maybe someone so extraordinary at writing every word they write is already the only word they need. I think our chief justice Roberts is maybe a little bit like that or Justice Kagan over here. But for 99.999, 99% of us, the secret is ruthlessly trimming, but not in this kind of depressing power struggle way like, oh, you know, they're just trying to make me kind of page and you know, they're trying to make me cut my points. So why can't people just read by F the saying something so demanding more in a positive sense? I'm cutting away the sort of the brush around the point so that my actual points jump off the page. You'll notice that a lot of people, maybe not so much in the UK, but in other jurisdictions, will bolder italicize usually the middle of their block quote. They're trying to draw attention to the part that really matters. Well, guess what? That means the parts that you don't want to build our italicize probably should have been paraphrase. So one issue is the argument's not, you know, rigid, yes or no, it's how do I get my point across with the least possible burden of the reader, the judge. Okay. So number one is all of that language that you are feeling like you want to copy and paste. If you had to whittle it down, either paraphrase or skip it or use language in your actual body, that's issue one. And that already goes a long way. You're making the block quote less onerous. Now, the other challenge is probably more important, the more important of the two. If it goes back to our discussion about headlines and why people read or don't read an article, even though they're in theory interested in a topic. So the advocate, the barrister, the lawyer, needs to do a little bit of intellectual work so that the reader doesn't have to. So in other words, so and so stated, the court said, you know, the witness testified colon block quote, the only thing needed for that is copy and pasting skills, right? And identifying, you know, the source. When you have a meaningful introduction to the block quote where you're actually distilling it down to the equivalent of what you'd see in as a heading or headline in an article, if you're again, it's kind of like what we discussed in terms of the overall structure as a microcosm. You are now not saying go read this quote. I am telling you, it's really important and I want you to read it. You're saying, look, I know you don't want to read this quote. I swear though, it matters and I don't want to paraphrase the whole thing. If you read it, you'll be happy I didn't paraphrase at all. You want to see the whole text, but we have to sell the reader on that by having a meaningful introduction, right? So I'm just making this up to the family court. You know, the father conceded that he never picked the kids up. Colon quote is far more compelling than subsequently the father stated. Colon, big quote, the reader now has to struggle through. Practice in just refining it and refining it and refining it and saying, well, I can take out those facts. So taking out unnecessary facts, getting rid of dates and times and who cares usually and describing things in a more concise way will do it. Getting rid of big block quotes from cases, the seldom needed. Sometimes you see like a whole page is a quote from a case. So it better be pretty good and pretty important. Otherwise, you incorporate the point you make in your own paragraph. If the citation of the point you're making is accepted, then you just make it once with one case and it's a fortnight. You don't need to refer to the facts or the details or what was held about the case. If it's controversial, when you're trying to say that the decision is wrong, when the situation will be different, you need to go into the facts and talk about why. So that does shape it. So you need to work out what are you using that quote for? What are you using that citation for? Why is it even in there? Doesn't need to be in there. And that will help get rid of the dross and volume and the padding. All judges say, you know, what's your point? Get to your point. Make your point. Highlights your point and deal with your point. And it does come down to it. So what is this point that you're trying to make? Now everyone thinks, well, I've got to go through the facts. Well, why do you have to go through all the facts? Are they all really, really relevant? Or this is a case about Bumbumbum in a paragraph for two. Here's the key fact that's important. So just take a bit of time and using case law. Why are you citing the case law, as I said? Secondary authorities and articles. Sometimes you get all excited and for you know it, you're citing things from law journals around the world. So what? Well, B, what's your point? And the point needs to be too. It's not that the author agrees with you, which is normally why most people cited. It's the prominence of the author. That's important. Right? That's where people are inside of it. Who is this person who's written this article? Right? And that's what we know that with the court. That's the court and the judgment and the judge, whatever that's saying those words that you say should be followed or important or listen to them, you know, they make the difference. So just because it happens to be in the New Zealand law, general or Cambridge law, general for all that. So what? And that's what you need to bear in mind. And then it better be good. And then you just cite it. Those are things perhaps you think about when used quotations use them sparingly. Weave them into your own paragraphs, write them resorting to block quotes. All those keep to that golden wall of short sharpen to the point. Do you want to become a best advocate? But you don't have the time to attend long in-person training courses. If so, the Advocacy Coach Members Club is the perfect solution for you. you. Our members' only club gives you access to concise, advanced advocacy courses that you can learn at your own pace on your own time. You'll also get exclusive access to replace of the advocacy clinic, our online platform for lawyers to practice their advocacy skills and a private members only podcast. In addition, you'll become part of a community of like-minded lawyers who are all committed to becoming better advocates. You'll have the opportunity to network with other members, share ideas and get feedback on your work. Join the Advocacy Coach Members Club today and start becoming a better advocate on your own time. To find out more, join GoToTheAdvicyCoach.com/membersclub. Become unstoppable at court with the Advocacy Coach, your partner in your journey to Advocacy Excellence. Thank you for listening to the Advocacy Podcast, journey to excellence. If you enjoyed the episode, please subscribe and visit us at theadvicypodcast.com for reading lists and other resources. Until next time.