Joe Regalia

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LEGAL WRITING PRINCIPLE 3

by Joe Regalia

Principle 3: Craft Rules

Survey 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.

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.

Look at how this judge takes a long, convoluted rule statement and explains it in simple, clear terms.

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. 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.

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.

This snappy headline instantly gives your reader a snapshot of your take on how the rule works.

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.

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.

Use your own words Unless there’s a reason to quote (e.g., statutory language or when the original writer matters), explain rules using your own, simple, words.

Frame rules persuasively Instead of copying and pasting the rule’s language, try to rework the rules so that they are in a form that pushes your reader towards the ultimate goal. Like putting the least favorable parts into a dependent clause—deemphasizing them.

Use places of emphasis Emphasize the parts of the rule that help you, like putting the favorable rules in places of emphasis (headings, introductions, and the starts and ends of paragraphs and sections).

Signpost your citations Lawyers constantly drop citations on readers without signposting how that citation supports their sentence. Especially when it’s an important part of the rule that you

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need to win your case—avoid relying on empty citations. Do the inferential reasoning for your reader and put it on display: “Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed.” Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).

Avoid the ole’ dump and conclude When discussing rules and authority, many legal writers do the ole’ dump and conclude. They list a bunch of facts from a prior case, then drop a single conclusion at the end about what that means for the rule. Instead, only list facts if you need to—and with a purpose. Try explaining how the prior court used the facts as you go, not just in conclusion at the end.

Move cites to the end of sentences Consider moving citations to the end of sentences. And consider putting the court, year, and other quality information directly in the text, if it’s helpful.

Support controversial rules When a rule is unsettled or particularly controversial, provide extra, extra detail. Tell the whole rule story and analyze as many cases and sources of support as you can.

Attack opposing authority Many lawyers run away from the other side’s best authority. Don’t do that! Identify the opposing party’s best case—and destroy it with particular gusto.

Reframe your opponent’s argument Try reframing (accurately and fairly) the other side’s most critical interpretations. For example: “Thus, as read by the [other side], Williamson County sends these plaintiffs to state court, while state law directs them back to federal.”

Make your argument first Generally, make your best case first—then tear down the opposing party’s rule interpretations.

Remember: Rule sections are one of the most important parts of your document. Use these techniques to craft persuasive rules that help you win.

Joe Regalia is a law professor at the William S. Boyd School of Law and co-founder of Write.law, a legal e-learning company for lawyers and legal professionals. Joe is a nationally recognized legal writing and technology consultant for law firms, courts, agencies, nonprofits, corporations, and other organizations. His research and teaching focus on legal writing, persuasion science, technology, and innovation.

Joe graduated first in his class at the University of Michigan Law School. He went on to clerk for the U.S. District Court and the U.S. Court of Appeals for the Ninth Circuit. Joe previously practiced at the international firms of Wilson Sonsini, Sidley Austin, and King & Spalding.