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LEGAL WRITING PRINCIPLE 3 by Joe Regalia
Principle 3: Craft Rules
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urvey after study agree that most lawyers don’t know how to write about rules. Caselaw, statutes, regulations. Whatever rule it is, for some reason, lawyers struggle with it. Judges say lawyers don’t explain how the authority supports their rules, they don’t dig deep enough into the authority to get the meat, and they seem to throw out all their good writing sense as soon as they cite a case. Your judge (or any other legal reader) will need to craft a compelling account of how the rules work. So you should, too.
explanations—or slogans. By distilling your interpretations into a pithy sentence or two and setting it out at the beginning of your rule sections, your reader will have an eminently easier time following along with even the most complex legal quagmires.
This is so important, because how you write about the rules has the power to change everything. And it all starts by shifting your perspective to stop thinking of rules as “things you have to find” and start thinking about them as “things I have to make.” In other words: You can (and should) take control of telling your readers how to interpret the rules and how to apply them. No one else can do that for you.
For example, take this packaged rule from an appellate lawyer: Whether a putative class member has standing to object turns entirely on whether they will lose money when the class is certified.
Look at how this judge takes a long, convoluted rule statement and explains it in simple, clear terms.
Authority Evidence Second, get more sophisticated about how you prove your rule interpretations. I call this using authority evidence. Authority evidence is the stuff you use to persuade your reader that your take on the rule is worth following. Like factual evidence, authority evidence comes in many forms, like quotes from cases, fact to fact case comparisons, analyzing case quality, and so much more. Also like factual evidence, all authority evidence is not created equal, nor is it equally useful in every situation. Instead, you should think hard about what authority evidence you can round up and which types will be most persuasive to your particular audience.
First the boring version: The State must first “exert its prosecutorial discretion in a proper manner and make a determination as to the propriety of the bill of charges.” State v. Iverson, 523 F.3d 31 (9th Cir. 1982). Additionally, the “important presumption of innocence is irrefutable and maintained through all stages of the matter up until and unless a conviction of guilt is properly imposed by a jury.” Id. The sentencing phase is the final step in the criminal process and is undertaken by the court. Id. Now the better version: Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect stands accused but is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase. To write clear rules like this, try a three-step process. Rule Slogans First, package your winning interpretations into simple RES IPSA LOQUITUR
This snappy headline instantly gives your reader a snapshot of your take on how the rule works.
For example, take case quotes. Many lawyers rely on these without much thought—but you can be more deft. Think about what the court did not say—obvious absences in the language that may signal something more important. Consider whether any language is contradicted by other words in the opinion. And much more. Fluent Rules Third, make sure your rules are simple, clear, and easy to process. In other words—make them fluent. (You can read more about Fluency, which is Principle 4, here.) You might have the winning rule interpretation and the best authority evidence to support it, but if you don’t explain your rule clearly, it may not matter.
