– Writing the Lead

16C (Section 16C), Brief of State Appellants (State Br.) 2a-3a, which delegates to certain churches and synagogues—those that, in the statute’s terms, are “dedicated to divine worship,” id. 2a—an ad hoc and absolute veto power over the approval of each liquor license within a 500-foot radius of the church or synagogue. Because it is providently located near the intersection of Mt. Auburn and Boylston Streets in Cambridge, and is invested by the State with an unreviewable veto power under Section 16C, the Holy Cross Armenian Catholic Parish church (Holy Cross Church) can and does exercise absolute regulatory authority over the acquisition of liquor licenses in virtually the entire Harvard Square area.¹

This thicket of confusing citations and unnecessary definitions could have been avoided and the lead measurably strengthened had Tribe incorporated the much more lively imagery that he buried in footnote 6, a few pages later:

Virtually every major commercial and entertainment area in Massachusetts is within 500 feet of some church. At all events, the gist of Grendel’s challenge to Section 16C is that it entrusts governmental power to churches. The particular radius of the sphere of influence thereby ceded to religious bodies—whether ten feet or ten miles—is constitutionally immaterial: the First and Fourteenth Amendments were not, after all, written with straight-edge and compass.

The buried lead is a common problem. Here is a typical example of the lawyer’s failure to get to the point. What follows is the opening paragraph of a memorandum about a client’s tax problem. How quickly can you spot the issue?

INTRODUCTION

Jane Doe Smith died on July 31,1985 (the date of death is hereinafter referred to as “DOD”). On April 31, 1986, the co-executors of her estate (“the estate”) filed a federal estate tax return in which a painting by Vincent van Gogh, titled L’Arlesienne, (sometimes referred to herein as the “van Gogh”) was stated to have a value of $2,250,000 as of January 31, 1986, the alternate valuation date (hereinafter referred to as the “AVD”).* This value was based on an estate tax appraisal performed by Sotheby’s Inc. (“Sotheby’s”). On April 11, 1986, the Internal Revenue Service (the “Service”) issued a “90-day” letter in which the Service determined that the value of the van Gogh was $5,000,000 as of the AVD. The Service’s determination was based on the Service’s Art Advisory Panel’s valuation of the van Gogh. The Art Advisory Panel also valued the van Gogh as of the DOD at $3,500,000.

* The date six months after death. See section 2032 of the Internal Revenue Code of 1986, as amended (the “Code”). The AVD, if elected by an executor, is the relevant date for valuing an estate for federal estate tax purposes. The co-executors made such an election with respect to the estate. The value of the van Gogh as of the AVD, therefore, is at issue.

The reader will search in vain for the issue in the main body of the first page. You must plow through the page to the very end, and only on reading the last sentence of the footnote will you stumble upon the point.

Many journalists spend half their writing time on the lead. Some lawyers, such as Jay Topkis, agonize over leads. “Usually I do the first paragraph of a brief many times,” says Topkis. If you are like most lawyers, however, you probably spend not much more time on the beginning of a document than on the middle or end. You ought to consider spending far more time on your opening lines. The proper lead can ease your burden: If you think hard about your lead, you very likely will, in the process, figure out how to structure your document.

In composing a lead, you should avoid what Professor Marjorie Rombauer of the University of Washington at Seattle calls “mystery-style writing”—conclusions stated last, rather than first. This common failing often shows up in weak or fuzzy verbs, as though the writer were afraid to tell the reader right away the precise nature of the problem. Consider this sentence, the first in a long opening paragraph written by an associate in a memo to a partner:

One aspect of the proposed sale of Arizona Charter Guaranty & Trust Company (“Arizona Charter”) to Fidelity Life Company concerns the contract between the MAC Fund, a money market fund, and its registered investment adviser, Equitable Money Management, Inc. (“EMM”), a wholly owned subsidiary of Equitable Financial Services, Inc. (“EFS”), 80 percent of which is in turn owned by Arizona Charter.

The lead is empty. It tells the reader who has waded through the chain of ownership that an “aspect” of a sale “concerns” a contract. The writer has wasted the opportunity to say immediately how the contract affects the sale, forcing the reader instead to puzzle out a slew of connections between these corporate entities, which may or may not be relevant.

The chronological style can be equally empty. As Robert Kasanof, a New York City litigator, told us: “I remain astounded at the dependence of much litigation writing on chronological organization, which is often most difficult for the reader, coming new to the subject, to follow. Trite though it may be, I believe that a summary introduction gives the reader a gestalt which makes the arguments flow and adds persuasiveness to them…. A reader of legal writing is likely to be suffering from severe overload; therefore it is very worthwhile to ease the physical and logical task of following your argument.”

The chronological lead is often used by lawyers who write their opening paragraph before they have thought through their problem and who do not revise that paragraph once they have solved it. Here is an example of a fact-stuffed chronological lead, followed by our suggested revision.

CHRONOLOGICAL LEAD

On November 8, 1984, Congress passed the Hazardous and Solid Waste Amendment of 1984, modifying and augmenting the Resource Conservation and Recovery Act (RCRA). Among the several changes wrought by the 1984 amendments is a new Federal regulatory system governing the installation and operation of underground storage tanks, commonly called the LUST program (for Leaking Underground Storage Tanks). The final form of this regulatory framework will be fleshed out by the EPA over the next three years as it conducts further research and institutes rule-making procedures. It is the purpose of this Memorandum to inform the client of what sorts of regulations they might expect will ultimately govern their use of underground storage tanks, and when those regulations may take effect. While perfect prediction of an agency’s action is impossible, this Memorandum should allow present management to conduct informed decision-making concerning underground storage facilities.

SUGGESTED REVISION

A new federal regulatory system will govern those who operate underground storage tanks. No one can predict the substance of the final regulations, but companies must begin to plan now for EPA rule making.

In his critique of lawyers’ writing, Justice Bablitch understood what many of the best journalists know: You must always engage your audience. “Effective brief writing,” he said, “requires that you constantly remind yourself for whom it is you are writing. You are not writing for your client, nor to impress your client with the depth of your intellect. You are writing for the judge.” Bablitch’s insight applies to all leads.

Leon Friedman, a professor at Hofstra Law School and a civil rights litigator, adopts this approach: “The secret is directness: Let the judge know immediately what your position is. Recognize the time limitations that judges suffer under. If you can give him the means to decide the case in the first two minutes of reading, he will appreciate your approach.”

We are not suggesting that lawyers go to journalism school. But lawyers can master good writing more quickly if they think as journalists do.

Robert M. Goldberg, who practiced in Anchorage in the 1980s, recalled how greatly influenced he was by a leading journalist a generation ago:

The late Eddie Lahey, the Pulitzer Prize-winning reporter for the Chicago Daily News, told us as college journalists (Amherst Student Banquet, March 1963) that a good reporter must be able to tell a story quickly and directly. “He should be able to cover the Second Coming of Christ in under 1,000 words!” said Lahey. His comments, fueled by a month with Judge Henry Edgerton, a year with Judge David Bazelon, and 20 years on my own, have convinced me of that fundamental truth: Tell your story directly, put it in context, make it simple but interesting, and then practice what my father, former U.S. Supreme Court Justice Arthur Goldberg, calls the First Rule of Advocacy: “Sit down!”

The lead is a sales job, to lure the reader into the story. Many adopt a conversational approach. Consider the following inviting newspaper leads:

A couple of years ago, it was so quiet here you could almost hear the marijuana grow. (From a profile of a curmudgeonly country editor in northern California.)

It’s after a rainfall, when the earth smells so rich and damp and flavorful, that Fannie Glass says she most misses having some dirt to eat. (From an article on a custom practiced in some southern states.)

Roll call, the teachers agree, is the most difficult part of the day: Ho Suk Ping He, Yana Katzap, Tkkun Amongi, Azaria Badebr, Rotcheild Boruchov, Eduordo Yun. (From an article on a polyglot school in Queens.)

In dozens of cities in Europe, the U.S.’s Big Five accounting firms are doing what they can’t do at home: practicing law. (From an article on the expanding international role of accounting firms.)²

What distinguishes these leads is how they irresistibly lure busy readers into reading on. Rene J. Cappon, an editor of the Associated Press, advises writers to think of leads “as though they cost you 10 bucks per word, each word to be engraved on stainless steel while you’re sitting on a hot stove. Think economy.”³ The lead is no place for secondary detail, abstract language, or vagueness. Cramming all Five W’s and the H into the first paragraph can create congestion. Avoid throwing your readers into “cardiac arrest,” as Cappon puts it, by keeping inconsequential details out of the lead and placing them deeper in the document.

Writers should also avoid straining their readers’ necks with what Louis Boccardi, president and CEO of the Associated Press, calls the “tennis ball” lead. Here’s the example Boccardi uses:

The U.S. Court of Appeals agreed Wednesday to review a lower court order that found the Nuclear Regulatory Commission in contempt of court for violating an order to hold open budget meetings.

“The problem here is that we treat the reader’s mind like a tennis ball to be whacked back and forth across the net,” Boccardi explains. “Agreed to review. Bam! Contempt of court. Bam! For violating an order. Bam! To hold open meetings. Bam! You can almost see the ball flying back and forth. It’s just too much. You cure it by just stepping back and asking yourself, ‘What really happened here?’”⁴ In other words:

The U.S. Court of Appeals agreed Wednesday to review a contempt finding against the Nuclear Regulatory Commission for holding a closed meeting.

Lawyers’ prose rarely is deathless, but it should not be deadly. No matter how complicated the facts, one reading should do. And that can be done, as this final example by Judge Learned Hand shows:

The suit is to enjoin the performance of the picture play, “Letty Lynton,” as an infringement of the plaintiffs’ copyrighted play, “Dishonored Lady.” The plaintiffs’ title is conceded, so too the validity of the copyright; the only issue is infringement. The defendants say that they did not use the play in anyway to produce the picture; the plaintiffs discredit this denial because of the negotiations between the parties for the purchase of rights in the play, and because the similarities between the two are too specific and detailed to have resulted from chance. The judge thought that, so far as the defendants had used the play, they had taken only what the law allowed, that is, those general themes, motives, or ideas in which there could be no copyright. Therefore he dismissed the bill.⁵

In five sentences, Judge Hand sets out the purpose of the suit, the facts, the issues, and the lower court’s decision. No one can doubt what the case is about, and this single paragraph guides the reader through the seven pages that follow. One reading will do. No more can be asked of a lead.