Suppose you are helping a child assemble a toy giraffe, just removed from the gift box. Out comes a longish neck and backbone, in three pieces; a head, in one; four legs, in twelve; a tail, in two. Unlike the man from Mars, who has never seen even a drawing of a giraffe and never contemplated the concept of a vertebrate, you should have an easy time of it. You know how a toy giraffe should look—you do not have to create the form from scratch—and if by chance you falter, you can stare at the picture on the box.
But for most writing projects, there is no picture on the box. Nature does not provide a ready template through which lawyers can solve their legal problems on paper. You have to decide on the shape of the head (the lead), the size of the torso (the body of the argument) and the number of limbs and their lengths (the support for the body). You also have to select and arrange the cells (words), tissues (sentences), and organs (paragraphs).
How words are arranged in phrases, clauses, and sentences is not an arbitrary matter. These arrangements are governed by grammar and semantics—the rules of construction and the rules of meaning. Sentences, in turn, are aligned in paragraphs, and paragraphs are ordered and linked to form a coherent document.
The writer has an easier time of it than nature. The living organism gestates but once, and if an unfortunate chemical accident attaches the foot to the neck, nothing apart from surgery can set the matter right. Prose composition, in contrast, can have many gestations. If a document is not structured properly at first, the writer has the luxury— and the duty—to put the head and feet and middle where they belong.
Order and Disorder
The principle of sound organization is this: Join those elements that belong together. Elements belong together for one of two reasons: (1) They are part of the same specific topic (witnesses’ observations of the color of the traffic light; exceptions to the statute of limitations relevant to the case at hand) or (2) they are related topics (descriptions of the transactions establishing that the defendant violated the insider trading regulations; the international law doctrines that preclude Iran from suing the United States). You will know that you have deviated from this principle of organization when you find yourself writing the equivalent of “by the way, I forgot to mention…”
When composing, you will always forget to mention something. Few of us can match the mental power of the nineteenth-century American historian William H. Prescott, whose impaired eyesight forced him to memorize: “He frequently kept about sixty pages in his memory for several days, and went over the whole mass five or six times, molding and remolding the sentences at each successive turn.”1 When you do remember, especially if you are writing rapidly, you are likely to toss the thought on the page just as it comes: “By the way…” That’s fine. But when you reread and edit your draft, you should recognize that you’ve attached a foot to the neck and that you must rearrange the parts.
Let’s work through an example from a student brief to test the principle of organization. Here is the instructor’s description of the factual setting:
Niles Nasty, a supervisor, continually propositioned Mary Sweetly, his new executive assistant: For months he suggested at least two or three times a week that they have dinner together, that he visit at her home on the weekend to review assignments, and that she stay late at the office to discuss “developments.” She politely turned down each of his overtures.
In the eleventh month of a one-year probationary period, Niles told Mary that she would be promoted and given a raise, and he suggested that they go to a cocktail lounge to celebrate. She declined. He grew quite angry and told her that he carried a gun “for broads like you.”
Mary complained to the company’s personnel director. He refused to accept her charges, saying that it would be better to keep the matter quiet.
Mary filed a criminal complaint. She was immediately transferred to a dead-end secretarial job, three days before the end of her probationary period. Mary’s three predecessors had received similar last-minute transfers. Mary was told that the transfer was temporary and that she would be reassigned to her old job once the court issued an order of protection. After the court issued the order, Mary was told that her previous position had been filled and that she could not be reevaluated for a new position until she had stayed twelve full months in any one position. Charging sexual harassment, Mary sued the company for injuries stemming from the hostile work environment, job discrimination, and the retaliatory transfer. The lower court dismissed her complaint. Mary appeals.
And here is the beginning of the student’s brief:
MARY SWEETLY STATES A VALID SEXUAL HARASSMENT CLAIM BECAUSE NILES NASTY’S OFFENSIVE AND UNWELCOME BEHAVIOR CREATED A HOSTILE AND INTIMIDATING WORKING ENVIRONMENT AND TANGIBLE JOB DETRIMENT FOR WHICH THE COMPANY SHOULD BE HELD LIABLE.
1. Nasty’s intertwining of his invitations with references to Mary’s job suggests that Mary’s submission to Nasty’s advances was a condition of her employment. The modern trend within the circuit courts has been adoption of the policy of holding employers strictly liable for actions of sexual harassment by supervisors when the sexual harassment centers around threats of tangible job benefits. Horn v. Duke Homes, 755 F.2d 599 (7th Cir. 1985) (court stated that whatever the result under the common law of agency, Title VII [of the Civil Rights Act of 1964] demands that employers be held strictly liable in sexually harassing situations). This position of strict liability is founded upon traditional notions of agency, which mandate employer liability when the supervisor acts in an agency capacity. A strict liability rule is intended to eviscerate tangible job detriment in that it ensures compensation for victims and creates an incentive for the employer to take the strongest possible affirmative measures to prevent the hiring and retention of sexist supervisors.
2. The corporation’s actions reasonably led Mary to believe that Nasty had the authority to evaluate her performance and recommend her for promotion. The Supreme Court’s recent decision in Meritor Savings Bank v. Vinson, 106 S.Ct. 2399 (1986), suggests that employers would be strictly liable for sexual harassment under the agency principle. Nasty was acting as an agent for the corporation while simultaneously placing conditions on Mary’s economic future. A jury could reasonably find that Nasty’s acts were part and parcel of his supervision of Mary, Davis v. United States Steel Corp., 779 F.2d 209, 213 (4th Cir. 1985), (majority of the court held that the employee could present a case under the doctrine of respondeat superior once the offending supervisor’s harassing conduct had been observed without reaction by his supervisor). Therefore, the corporation must be held liable for Nasty’s threatening actions against Mary’s tangible job benefits.
3. Had Nasty been a coworker rather than a supervisor, Mary could have thwarted his propositions without the risk of tangible job detriment. In Scott v. Sears, Roebuck & Co., 798 F.2d 210 (7th Cir. 1986), (the court dismissed a sexual harassment claim against a coworker) the plaintiff admitted that the allegedly harassing coworker was a friend and that he had asked her out only once. The isolated threat posed to Scott’s working environment and tangible job benefits by a coworker warranted the dismissal of her claim. Mary, on the other hand, was victimized by a patterned and pervasive practice of sexual harassment by a supervisor.
4. Upon the establishment of Mary’s claim it is now evident that the corporation had constructive, if not actual, knowledge of the existence of the sexually hostile workplace created by Nasty, and that it took no prompt action to rectify that environment. Liability should be assessed against the corporation for the sexual harassment committed by its supervisor Nasty, Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982) (employer is strictly liable for actions of its supervisors that amount to sexual discrimination or sexual harassment resulting in tangible job detriment to subordinate employee). Mary’s three immediate predecessors were all transferred from the department while it was under Nasty’s control. Someone from the corporation’s personnel department had to transfer these women. Upon that fact alone, the corporation had to have, or at the very least should have known of the offensive environment created by Nasty. Yet with that situation before it the corporation did little or nothing to remove or dissuade Nasty. The corporation could have negated its liability but chose to ignore it through three prior similar instances. The simultaneous observations and inaction on the part of the corporation satisfies the criteria for constructive knowledge as defined by the federal courts, as well as the E.E.O.C Guidelines.
Grammatical errors, syntactical missteps, stylistic infelicities, and redundancies aside, this hodgepodge jumps from topic to topic, piling as many as seven topics into a single paragraph. Let’s look at the writer’s principle points, sentence by sentence:
Paragraph 1. (a) Nature of act: Mary’s submission or refusal to submit was a condition of employment. (b) Rule of liability: Employers are strictly liable for sexual harassment by supervisors. (c) Origin of rule: The principle of strict liability stems from concepts of agency. (d) Purpose of rule: The rule is intended to compel employers to prevent and eliminate harassment.
Paragraph 2. (a) Creation of agency authority: Mary reasonably believed Niles had authority to act. (b) Rule of liability: Employers are strictly liable for sexual harassment by supervisors. (c) Creation of agency: Niles was an agent and had authority to act. (d) Standing to sue: An employee may sue if the company fails to react to a supervisor’s actions. (e) Rule of liability: An employer is strictly liable if it fails to react to a supervisor’s actions. (f) Legal conclusion: The corporation is liable.
Paragraph 3. (a) Extent of liability: The corporation is liable only for harassment by a supervisor, not by a coworker. (b) Precedent: A court dismissed a claim premised on harassment by a coworker. (c) What happened to Mary: Mary was harassed by her supervisor.
Paragraph 4. (a) Notice: The company had notice. (b) Failure to mitigate: The company failed to rectify. (c) Legal conclusion: The company should be held liable. (d) Rule of liability: The company is strictly liable for actions of a harassing supervisor. (e) Notice: The company, through its agents, must have known of the harassment. (f) Failure to mitigate: The company failed to rectify. (g) Notice: The company’s activities demonstrate it had notice.
Scan this list of main points. No logical order suggests itself. In these four paragraphs, the student has jumbled many different issues: (1) whether Niles was a supervisor, (2) whether supervisors are liable, (3) whether corporations need notice, (4) how they get notice, (5) whether corporations are liable, (6) whether this corporation is liable, (7) what the standard of liability is, (8) whether an employee has standing to sue, and more.
This mishmash of ideas is hopeless. Readers expect sentences to proceed in order. When you give directions, you start with the street nearest the person you are instructing and you give the sequence of streets and turns that will lead to the desired destination. You do not say, “Well, forget about the middle streets for the moment, first let me describe a street three-quarters of the way there that may interest you; then there’s a street back near you…” A rational sequence of thought carries the reader from the start of the journey to the end. Brief detours, if there must be any, are clearly signaled at precisely the moment they are to begin.
A different travel metaphor comes from Sir Winston Churchill, who was awarded the Nobel Prize for Literature in 1953:
I began to see that writing, especially narrative, was not only an affair of sentences, but of paragraphs. Indeed I thought the paragraph no less important than the sentence…. Just as the sentence contains one idea in all its fullness, so the paragraph should embrace a distinct episode; and as sentences should follow one another in harmonious sequence, so the paragraphs must fit on to one another like the automatic couplings of railway carriages.2
Topic Sentences and Topic Flow
Your topics must be not only sensibly arranged but also sensibly expressed so that your readers can understand right now, right here, why you are talking about a particular point. A topic sentence is to a paragraph what a lead is to the whole document. It directs the reader’s attention and announces what comes next. Consider the following sequence of topic sentences taken from a seventeen-paragraph law review article by David M. Balabanian, a San Francisco practitioner, eulogizing Justice Matthew Tobriner of the California Supreme Court.3
California lawyers have long played in a colorful local rite: explaining the Law of California to the World.
Lately, the frequency of such conversations has seemed to diminish.
Many of the ideas identified with our courts which seemed remarkable, even visionary, twenty, ten or five years ago, now seem commonplace, even essential.
More of California’s contributions to the national jurisprudence than is generally realized (even in well-informed legal circles) came from a quiet, humble man who spent much of his long judicial career in relative public obscurity.
The scope of his work defies quick summarization.
Though time alone can adjudicate the durability and worth of his many ideas, two themes stand out:
The importance of individuality and the need to defend it against the organizational imperatives of both government and private institutions.
The substitution of reasonable expectation for fictitious agreement.
The form of his opinions was as characteristic as their content.
Another Tobriner hallmark was the absence of the passive voice.
He liked good metaphors.
Though earnest in defense of the values he held dear, he shunned the self-righteous moralizing which disfigures much liberal advocacy.
His great output required great industry.
Ever gracious and self-effacing, he resisted all temptation to adopt the eccentricities of manner or displays of choler sometimes mistaken for judicial greatness.
There are, of course, many sincere people who heartily deplore his work.
Whether, given the stasis of our legislative institutions, they ultimately could or would have struck balances more durable or popular than the courts’ is unclear.
What is clear is that conflicts unresolved by the legislature have been settled by our judges in ways that once appeared unremarkable and now seem commonplace, and that one of these judges was a quiet, gentle man who sought neither controversy nor glory, got more of the former and less of the latter than he deserved, and profoundly changed the lives of us all.
From the topic sentences alone, the reader gleans the substance of the article. Each topic sentence announces a point (which is illustrated by the examples and anecdotes later in the paragraph) and moves the author’s argument forward from his premise toward his conclusion.
In legal writing, the topic sentence should almost always come at the beginning of a paragraph. Writers who have mastered the art of structure, however, may experiment, placing the topic sentence in the second slot or even at the end of a paragraph in order to emphasize the details or examples that precede it. The following paragraph begins with a transition sentence that leads into the topic sentence:
Writing is not merely a matter of words and phrases. Much more important, writing is a process by which we think our way to a solution of the problem that lies before us.
Topic sentences alone are not sufficient to provide clear, flowing paragraphs. The writer must also ensure that each sentence in the paragraph discusses the same or a closely related topic. Read the next two paragraphs for sense (the topic of each sentence is italicized):
An accredited law school must graduate lawyers before the bar examination can be taken. The bar will not admit them to practice until they pass the exam. Only then can they hang out a shingle. And even then, the finer points of law practice will elude them; it will be many years before they can practice comfortably. That experience is not gained overnight.
Lawyers must graduate from an accredited law school before they may take the bar examination. They may be admitted to the bar and hang out a shingle only after they pass the exam. Even then, it will be many years before they feel comfortable with the finer points of practicing law. They cannot gain that experience overnight.
Both paragraphs mean the same thing. But in the first version, the topics of the sentences are disjointed, seemingly unrelated: (1) “an accredited law school,” (2) “the bar,” (3) “they,” (4) “the finer points of law practice,” (5) “they,” and (6) “that experience.” The reader glides over each without seeing the connections, which are buried inside the sentences. In the second version, the topics are identical: (1) “lawyers,” (2) “they,” (3) “they,” (4) “they.” The substance is the same, but the sentences are glued together; the reader does not pause in going from one to the next. Moreover, a consistent set of topics will usually keep the sentences tighter and shorter, and there should be fewer of them.
As a writer, you select and control your topics. A muddled, disjointed, incoherent topic flow is your fault, not the fault of the material. In legal writing, you usually have five categories of topics available to you:
- The party: the plaintiff or defendant. “Mr. Jones carried the radioactive isotope, contrary to the Montana code, but he failed to receive a warning from Mr. Smith that…” or “Mr. Smith
- failed to warn that the radioactive isotope Mr. Jones was carrying…
- The object or concept: the particular thing or concept that lies at the heart of the matter. “The radioactive isotope that Mr. Jones carried, contrary to the Montana code, posed a serious threat.”
- The principle: the laws and rules that govern the problem. “The Montana code governing the handling of radioactive isotopes forbids…”
- Yourself, as a lawyer. “I must inform you that the Montana code…”
- Your audience: the client (or judge and the opposing counsel). “You violated the Montana code in carrying the radioactive isotope, but…”
Which category you choose will depend on context and purpose. Topics should not wander indiscriminately through the paragraph. Have a reason for what you do and shape your topics to conform to it.
Purpose and Strategy
Lawyers do not write to amuse themselves but to solve some problem or meet some need. Every document a lawyer writes should reflect the purpose for which it was undertaken, yet too often lawyers seem oblivious of this cardinal principle. Problem solving requires lawyers to provide explanations, offer responses, narrate events, and prove their points.
To explain, respond, narrate, and prove, lawyers rely on the following strategies: (1) defining, (2) comparing, (3) contrasting, (4) classifying, (5) evaluating, and (6) showing cause and effect.
Lawyers who ignore their purpose and fail to select appropriate strategies write muddled, rambling, or disjointed documents. Here, for example, is the outline, or skeleton, of an office memorandum written by a first-year law student who offers a grocery list, rather than an analysis:
[Lead] Our client is accused of larceny. The definition of larceny is unclear. The courts say different things in different cases.
[Body] In Case 1, the court said…In Case 2, the court said…In Case 3, the court said…In Case 4, the court said…
[Conclusion] Therefore, our client is not guilty.
Organizing the discussion around a list of cases rarely works, to the chagrin of many first-year law students, because the writer cannot connect the facts or law of the cases to the issue at hand. The writer who chooses a one-two-three organization cannot compare or contrast the holdings in order to explain the law or to reason about the client’s innocence.
To structure a document intelligently, you must know what you want to do and how you can go about doing it. Suppose that your goal is to explain the law of larceny in a particular jurisdiction. To explain it, the best strategy is to classify the various definitions that the statutes and the courts have offered. A classification scheme will suggest itself when you have read enough cases. You would not begin by saying, “I have read fifty-two cases, and the first one defines larceny this way, and the second one that way, and the third…” Rather, you would begin by telling your reader that the courts have interpreted the larceny statutes in five ways (or six ways or seven). You would then define and describe each of these interpretations and explain the circumstances of the cases that gave rise to each interpretation. Your purpose and strategy thus will dictate the organization of your memorandum.
You would take a different approach to the same body of cases if you were writing a reply brief. Then you would probably use the same topics, and the same order of topics, that your adversary used. Your memorandum or brief would have a different shape still if your assignment was to show how a statutory amendment would affect the chances of your client’s being acquitted, or if you were asked to narrate the facts, explaining what happened.
If you think out your purpose and strategy first, you should discover that your organizational and conceptual problems will help solve each other.
Some types of formatting attract the reader’s eye and illuminate the path of the argument. Two of the most effective formatting elements are headings and lists. Headings highlight the major sections of your document and inform the reader of each section’s destination. In a long or complex document, the headings and subheadings mark the trail.
Lists are useful when you want to present three or more items that represent a set of some kind—for example, a series of alternatives or subcategories or steps in a sequence. A list format makes it easier for the reader to understand the number of items and to compare them. You can indent each item in the list, or place a bullet (a small circle) or other symbol before each item, or number the items.
Just as headings and lists help readers follow your structure, other elements tend to distract their attention and cause them to lose their way. The worst offenders are the long quotation, the lengthy string citation, and the ponderous footnote.
Too many lawyers, showing off their research or hoping to decorate their arguments, load their writing with lengthy or inappropriate passages from the writings of others. These quotations interrupt the flow of thought because they are in another voice and because they do not relate precisely to the point being made.
Lawyers who use long quotations are usually thinking more about themselves than about their audience. Long quotations are often inserted out of laziness or insecurity: The writer is too tired or too uncomprehending to distill the essence of the thought. Rather than undertake that intellectual work, the lazy writer leaves it to the reader. Some valiant readers will struggle through blocks of quotations, but others skim or skip them, assuming that the writer will make the point elsewhere.
Strategic writers, in contrast, use carefully selected short quotations as ornaments to catch the reader’s eye. They select the heart of a passage that bears directly on their point, and they quote only those words that sparkle—the essential phrase or sentence that is memorable, epigrammatic, or vivid in its metaphor. They also make sure that the apt quotation is aptly introduced and securely anchored to their own argument.
< div class='tao-gold-member'>