In the legal community where I earn my living and enjoy the challenge of my career, there are a few “tricks” I’ve learned over the past thirty years. These are generic, and not specific to any one particular type of legal writing, though I will use a tort petition/complaint as an example. I’m sharing them here, not only to preserve them, but to give someone who might be thinking of going into this field food for thought.
EVERYONE who retains an attorney has a story to tell. To be a good legal writer/drafter for this client, you must first be a good listener. The client’s story will contain many things. First and foremost will be emotion. This doesn’t help you help the client, but acknowledging it and validating it will help the client, and you can then proceed to discern the important-to-you elements. Those are: facts – what happened, in sequence. Get the broad outline. Know going in to your first conference with the client that the story will not be linear; it will jump all over the place, contain a million emotional reactions which are totally irrelevant to any factual content and require you to be a discerning listener. Develop this skill.
Take very careful notes; ask questions. GET THE FACTS. The facts are critical. The facts determine your course of action. How you handle these facts will actually address your client’s emotional need. Whatever you do, remember you are dealing with a human being in a bad place in his or her life. NO ONE hires an attorney for a happy event; it is always a time of stress. You are not seeing your client at his or her best. Ask questions; ask them over and over. Rephrase your questions, but do not brow beat. When your client sparks at you about “I just told you that”, explain yourself. You have to have EVERY detail. Always remember, and never forget: NO person will ever tell you all the details because at least one of them will paint that person in a less than perfect light. No one wants to admit to their own fault or indiscretion. But it is there; find it. Explain that you have to know, or the other side will use it against your client. If you know all that is knowable, you can use it to your client’s advantage. If you’re caught by surprise, both you and your client look less than forthright. This is never a good position.
Now, assume you’ve spent time and courteous effort in gleaning all the facts you can; it is up to you to determine whether or not there is any ‘actionable in the law’ thing you can do to assist your client. You, as a legal professional, must be able to determine when you really are the best option for your client. Both you, and the client (ultimately) will respect you more if you are honest. Develop the skill of being able to say, vis-a-vis, that you’ve evaluated the facts, researched what you believe to be relevant law, and just don’t think there is a meritorious case to present. Don’t cop out and do this only in a rejection letter, but do follow up with one. Always remind your client you have his or her best interests at heart, and you are only one person with one opinion; there are many like you. The client is free to keep looking until he finds someone to represent him. Develop a reputation for honesty and integrity, and then work hard to maintain it.
What, you ask, does any of this have to do with proper legal drafting? Well, think about what you have already done if you’ve followed my advice to this point: You’ve learned to listen and sift for facts. Lawyers can ONLY deal with facts. Psychologists deal with emotions. You’ve learned to take those facts and compare them to relevant available causes of action. You’ve learned to evaluate based on the facts, and be honest, forthright, caring and professional. Sounds like winning to me!
Now, let’s further assume that you actually do find relevant law which will provide an opportunity for your client to obtain redress. Score! This is where the writing tricks come in. Hopefully, you’ve kept your notes and organized them into a linear outline of the sequence of events giving rise to your client’s complaints.
Let’s also assume that you are now going to prepare a ‘tort’ lawsuit for your client. You will match the factual elements of the story with the elements of the tort. You will make sure that you have an allegation for each and every element required to prove that tort. You will state those allegations in clean, clear one sentence statements. You will not mix up the story the way you heard it from the client in the first 15 minutes you met with him. You will have sifted it down to the facts. You may have actually found several possible means of recovery for your client. If so, wonderful. Take the facts common to all those different theories and set them apart at the very beginning of your petition/complaint, and label them “facts common to all counts”. Set them out in a logical sequence: who, what, where, when, how and why. Really. This is important. DO NOT USE run on sentences, compound sentences, or multi-sentence paragraphs. Each fact deserves its own special paragraph.
Then, you incorporate by reference all the relevant paragraph numbers into each individual count for each individual tort you are alleging. HEY!! guess what, my friend? You just wrote a winning complaint. Hard? Harder than you’d think, based on the evidence of my thirty-plus year career as a paralegal.
Recently I have spent considerable time assisting with a re-write of a 42-page petition in a huge tort case. The original petition was written by an attorney and there was an assumption made by my client attorney that it was well-written, reflected the facts of the case coherently and stated each separate cause of action in such a way as to meet the requirements necessary to plead that cause. The original petition was merely signed and filed. The judge dismissed it, and told my client-attorney to re-file it within 30 days. The first time I saw this piece of work, I told my client-attorney that it was not the best piece of drafting I’d ever seen; I was informed that he could always amend it later, that I was JUST a paralegal and I had no right to criticize the attorney who drafted it. After it was dismissed, I heard, non-stop at my expense for hours and hours, how I should have insisted that it be fixed at that point. This is the life of a paralegal, so, I sucked it up, took notes and got ready for the day when I would be told to fix it. That day came.
I went to the books, sought out the elements of each cause of action, and tried to find facts in the original petition to match up. Mind you, I still have not had my hands on this file – ever. I have met some of the clients personally, but not in the initial phase of finding out what went bad for them – too late, in other words. I have ONLY the original document and bad memories of the client-attorney to go from, because NO ONE TOOK NOTES of the meetings with the individual clients.
It took more than 100 hours to re-write the original petition. I could have, given the opportunity to put my hands on the file, and meet with the clients, or see notes, started completely fresh and done the task in maybe 40 hours. I’m fighting to be paid for my time. You see, the ‘hard part was already done for me’, I only had to reorganize it – with no prior knowledge of fact.
Back in my school days, I was taught to draft a complaint backwards from the jury instructions, and from the cases and statutes that define a cause of action. I was not, as the original attorney evidently was, taught to write an emotive appeal to the highest nature of the person I am assisting my client in suing.
Joe Friday said it well: “just the facts, ma’am.”
Here ends this lesson: Go forth, be compassionate but gather the facts. Be honest and have integrity. Be sequential and logical. Don’t discount the value of the people who can help you.
Off to sip coffee and start spring cleaning! Enjoy!!!
That is all!
