Welcome back to the Law School Toolbox podcast. Today we're excited to have one of our law school and bar exam tutors, Luiz Arroyo, here with us to talk about improving your legal writing skills. Your Law School Toolbox host today is Alison Monahan, and typically, I'm with Lee Burgess. We're here to demystify the law school and early legal career experience, so that you'll be the best law student and lawyer you can be.
Together, we're the co creators of the Law School Toolbox, the Bar Exam Toolbox, and the career-related website CareerDicta. I also run The Girl's Guide to Law School. If you enjoy the show, please leave a review or rating on your favorite listening app. And if you have any questions, don't hesitate to reach out to us. You can always reach us via the contact form on LawSchoolToolbox. com, and we would love to hear from you. With that, let's get started.
Welcome back to the Law School Toolbox podcast. Today we're excited to have one of our law school and bar exam tutors, Luiz Arroyo, here with us to talk about improving your legal writing skills. Welcome, Luiz.
Thanks, Alison. It's a pleasure to be here.
Pleasure to have you. To start us off, can you give our listeners just a bit of information about your background, so that they have some context here?
Okay, sure. In addition to being a Law School Toolbox tutor, I primarily, for the last 13 years, I've worked for the federal courts as a law clerk to various federal judges. I've specifically worked for federal judges in the Southern District of California, the Northern District of California, and the Ninth Circuit Court of Appeals. I've done the job for many years and loved it, because I love legal research and writing.
So, this should be a pretty fun topic for me to talk about today, because legal writing is something that I'm definitely passionate about.
Alright. I'm definitely interested in hearing from you, it sounds like you have a great background for this. I know I learned a lot about legal writing in the one year I was a law clerk. If you've been doing it 13 years, you definitely are an expert. My first question for you is pretty basic, but not that easy to answer: How do you define good legal writing? What are you looking for here?
Yeah. I think good legal writing is straightforward. It really comes down to two things for me. The first one is persuasiveness. Is it persuasive? So, basically when I'm reading a brief or an opinion, do I find myself agreeing with the writer a lot? That's in essence... If the reader wants to agree with you, then it's persuasive, then it's probably good. The other component is just about how well-organized the writing itself is. In addition to how persuasive it is, how easy is it to read?
Good legal writing should just flow. The reader should have no problem making it through sections, reading the brief from cover to cover. If it's an issue where you're reading one page, having to put it down and comprehend, "Wait, what was just said?", or you're getting lost, it's not clear what points that's bad legal writing, that's not good legal writing.
But if you can do those two things - if it's well-organized and easy to read and it's persuasive, then it's good legal writing, in my opinion.
Awesome. Yeah, I remember working for a partner who said that was always a tell in somebody's, whatever they were writing - that if it got super convoluted and it was hard to follow just the basic structure of it - that was usually a tell that either they didn't know what they were talking about or they were trying to hide something.
Yeah. But one thing I do want to say though, on the topic of good legal writing. One thing that I let law students and young attorneys know is, one of the big keys to understanding good legal writing and getting good at legal writing yourself is to keep an eye out for good legal writing when you're doing research.
For example, when I was a younger clerk and I'd be doing research and I was reading case laws and I found a Ninth Circuit, and I'm reading it and I was like, "Wow, this Ninth Circuit opinion is really good. It's really persuasive, it's on-point, it's really well-organized" - I would then take the time to break down the opinion and analyze it and figure out why.
What was it about this, the way it was written, that made it so good, made it so persuasive, so that it would be things that I could then later on incorporate into my own writing?
I think that's a great idea. And I would sometimes get clips, I like the way they phrase something, and actually keep a notebook of those, so I could use them, steal them later, basically. New law students often struggle with the formulaic nature of legal writing. Do you have any tips for getting used to IRAC or similar approaches? How can people make this their own?
So, for IRAC, I think the main thing there is, it is formulaic. And so, part of it is just understanding the nature of the beast, that you have to engage in certain steps. You have to state the issue, then you state the law, then you state the law again, often, and how the law applies to the facts. And in doing so, you're often restating the law, you're restating what the legal elements are.
And when you're stating those facts, a lot of times in your legal writing you have a background section where you state the facts, but you state it again, and you just have to state it again. And you need to understand that it's good to have to state both the issues and the facts in the actual analysis section, so that it's all there, it's all wrapped up. Don't try and rely on the fact that there are things you've said earlier. That's just not the nature of legal writing.
The nature of legal writing is you've got to include it all in the analysis every legal issue and every fact that's relevant to the analysis.
Yeah, sometimes it amuses me when people say, "I don't want to use IRAC." Which one of those pieces do you think you should leave out?
Yeah, exactly. There's a reason why it works. That's the reason why they teach us that way, is it is the best way to organize good legal writing.
Yeah. On that note, when you're working with law students and people who are taking the bar, what are some common writing problems that you see over and over?
Okay, so yeah, this is something I could definitely talk about for a good while. I think there're a few things, but one of the first things that happens a lot, especially people early in their legal writing career, is understanding that there are different types of writing. Specifically, there're two main types of legal writing.
The first thing I always want to stress is, I've had attorneys call this persuasive writing versus non-persuasive writing, and I always push back against it, because all legal writing is persuasive. Whether you're writing something for a judge or for a client, you want it to be well-written and you want the person to think you're right. In those contexts, there are two types of legal writing. I like to call it objective legal writing versus advocacy.
And being a good legal writer really requires you to understand the difference between those two types of writings. And when I am trying to explain this concept to law students, I think a good, easy example I always give is, you're doing legal analysis and you're doing your research and you come across an issue where there's an out of circuit split. Let's say you have a Tenth Circuit case and you have an Eighth Circuit case and they go different ways.
And you're not in the Eighth or Tenth Circuit, you're in the Ninth Circuit. I'm in California, so I always say I'm in the Ninth Circuit. So, in that situation, you've got these two competing cases; how do you analyze it?
So, if you're in the objective legal writing world so you're writing a memo to a judge, or let's say you're writing an internal memo, you're working for a law firm and a partner says, "Hey, analyze this issue, tell me what you think" then when you address those two cases, you can use phrases like, "The Eighth Circuit case is probably right. I think it's more persuasive than the Tenth Circuit case." Or you could say, "It's a really close call.
If I had to make this decision, I'd say go with Eighth Circuit case, but you would totally be justified in going with the Tenth Circuit. Both opinions are really well-written, both are persuasive, so I can see why one judge would go one way or the other." In the objective writing world, you can write like that, and it's still good, and it's still persuasive, and you're doing your job.
If you're in the advocacy role - so you're in a situation where you're writing something to be submitted to a court on behalf of a client - then you have to put a different hat on. When you're faced with that case law - let's say the Tenth Circuit case is the one that favors your client - you don't use words like, "This is a close call." You don't say, "This is probably right." You will affirmatively tell the judge, "No, the Tenth Circuit case is right.
The Tenth Circuit case, the analysis was on point. This is what you should follow. The Eighth Circuit case is wrong for all these various reasons." And you just are more affirmative in your legal arguments; you can't be wishy-washy when you're doing advocacy. And so, that's a distinction that I think is really helpful in understanding when approaching legal writing at the beginning.
Right, because you can even think, for example, you might do that objective memo first in-house, and then you decide internally, "Okay, we definitely like the Tenth Circuit case better. That's the one we're going to go with. So now what are the best selling points on that?"
Yeah. And then that also goes to another thing that I think trips up people early on in their legal writing career. If you're faced with a situation like that, where you have basically problematic case law or problematic facts - so in this situation, you have another case out there that says the opposite a lot of times people will wonder, what do you do with that? Just hide from it?
You've got to address it, especially if it's in a situation where it's advocacy - so there're two sides submitting something to the court. You want to address it, because you want to give the court your side. You want to give them an explanation of roadmap of why that case is wrong or why they shouldn't follow that case. If you hide from it, the other side is going to find the case, so the other side is going to cite the case to the court, and the court's only going to have their opinion on it.
So, definitely good legal writing addresses the problematic areas. Now, I don't think you should focus on it. I don't think you have to get into too much detail, but you should at least provide some basis, some roadmap to the court to distinguish or reject the case law that's unfavorable to you. That's part of good legal writing.
I think of it as, you probably wouldn't be in court unless there were some close questions.
Yep, yeah.
You're going to have to address the problematic pieces. It's the old saying, "If the facts are against you, argue the law; if the law is against you, argue policy." You work with what really.
Yeah. Then another thing that I have that's similar is just, it's really important to understand what is the relevant standard of review. That's something that I see a lot with law students, is, let's say we're back in the world of advocacy writing, and you're writing a motion to dismiss - your arguments are different than if you're writing a motion for summary judgment, because the standard of review matters. If it's a motion to dismiss, the world is the complaint.
You're focused on the allegations and the complaint. If you have to make an argument that is, "There's this piece of evidence that disproves the plaintiff's claims, and that's why we're right" - that's not a good argument on a motion to dismiss. Knowing what's the motion to dismiss 12(b)(6) standard, how does it work - that then can guide you as to what are the good arguments you should be making, what are the relevant arguments, what are the winners.
, Yeah. I will say as a former Civ Pro TA, this warms
my heart. I'm like, "See, you really do need to pay attention. Erie is important. Standards of review are important. These are the things courts actually care about."
Yeah, yeah, definitely. It's really important stuff when it comes to legal writing. Another quick easy tip I have too, for anyone at any stage in their legal writing career is, always definitely take the time to proofread your work. That's something that I'll sometimes see attorneys that have been out of law school for years still struggle with.
And I just think it's always really important, because having good grammar, having no typos just helps with what I talked about earlier - making your writing persuasive and easy to read. And it's a really simple thing. Anything that I work on, if I'm writing something, I always make sure that once it's done, I consider I have a good solid rough draft, I always read it at least twice. And I don't just read on the computer screen.
I always suggest to people, do something, because your mind can play tricks on you when you proofread. It can make you think words are there that aren't, or words are spelled in a certain way when they're not. So, I'll always at least for one draft, I'll print it out, have a hard copy. Sometimes even I'll read it out loud. Something like that changes it enough to then untrick my brain, so that I can then catch some extra typos that I might not have had.
Certainly it's always good if you can have somebody else review and proofread too, but then again, it depends on the context. Obviously, if we're talking about law school work or on the bar, you're on your own. It's good to have these little systems that allow you to trick your brain. I had another co-clerk where he had something similar, but he had a program where his computer read his Word file back to him.
So he would sit there and listen to it as his last stage to help him catch typos or improper grammar.
I think that's a great idea. I've had people use rulers or pieces of paper and go literally line by line. Just something, like you said, to make your brain actually look at something that you might've read 20 times at that point.
Yeah. That reminds me, I remember somebody even told me that they would backwards. Not every word, but just the sentences. Start with the last sentence and go from there. That's another way to trick your brain. Yeah,
I had a partner do that as well. I was like, "Are you reading that in reverse order?" He's like, "Yep, looking for typos."
Yeah. Then I just have one more tip. It's a tip, but it's actually more of a guide that I always like to tell people as they're learning about legal writing and developing their legal writing skill. And that's just that I really think the key to good legal writing and getting good at it, for me, it's always been organization. The way I explain it to students or young attorneys is that you have to just create this roadmap. And you have to start from the highest level.
So, with what you're writing, what are you trying to obtain? So let's say it's a motion you're filing with the court. Okay, what are you asking for? It's a motion for summary judgment. You think you're entitled to summary judgment. Okay, then why are you entitled to summary judgment? What issues get you there? So, let's say that the issue is that the plaintiff is missing an element from one of their causes of action. Okay, so we've got this element.
Then, what are the legal standards that show they need this element and why it's missing? Then, what are the relevant facts that show that you're correct on that issue, that issue is missing and hasn't been met in this case? I just think having that organization is a really powerful tool, because then once you have that roadmap, then it all flows from there. You have your analysis, you know what law you need to address in your legal standards.
You then know what law and what facts are relevant, how you're going to apply those facts to law in your analysis section, even for your background and facts section. Once you do that, you know what are the facts that are relevant. So then you know what facts are irrelevant. You know what you don't need to talk about. And then for an intro section, your roadmap basically is your intro. What are the main issues, the main points you're making?
Then that becomes your intro, that becomes your headers. So, whether you want to call it an outline or a roadmap, but taking the time to really organize your legal writing prior to fleshing it all out that's the key. That's the most important thing.
I definitely agree with that. Being able to answer that "why" question repeatedly: Why does this matter? Why is it important? And also the facts. Can you talk a little bit more about that? Because I think sometimes students have a little trouble understanding that the facts are not just factual. You're telling a story with your
facts. Yeah, that's such a great point. I'm happy that you mentioned that, Alison, because that's something I've had to explain when people are newer into legal writing, that they think the factual section is objective. No, the whole brief's persuasive, even the facts. It's just, there's less advocacy that goes into the statement of facts, but the statement of facts should still be persuasive. You should still write it in a way that puts your client in the best position to win.
So, it's painting things in the best light for your client. It's phrasing the facts in a way that makes the client look better, maybe downplaying certain things that might not make them look better, and it mainly focuses on what's relevant. I saw this recently. So, you have a case where maybe one of the elements involved is the person and employee of the company. And you represent the company.
Let's say the person was a highly exemplary employee of the company and won many awards - that might be true, but if you're representing the company, you probably don't need to say that in the statement of facts. You could just say he's an employee of the company, and then move on. So, that's an example of you said the fact, but you still said it in a way that downplayed certain facts that might be unfavorable to your client.
Right. Or even, "Mr. Smith was hired in June of 2020." Move on.
Yeah.
Because you know that his side is going to be talking about all the great things that he ever did.
Yep, exactly. That's where you leave it though. That's the stuff you do leave to the other side. Leave it for the other side. They can paint up the facts if they want to try. But yeah, you just stick with what you need to say, and what's in your client's best interest.
Yeah. I remember from clerking, sometimes people would go a bit over the top with some of this and you're like, "Really? Is this person really the most exemplary employee that's ever been hired at this company, ever?" I think it's a fine line.
Yeah, I definitely see lots of that. That's a subject for practicing attorneys, for more advanced legal writing for what's good for them, is that sometimes you can go so over the top, where you hurt your credibility with the reader a little bit. If you make an intro section too over the top, then the reader will start to question, "How good's the rest of the analysis in this?"
Yeah, definitely. In your legal job, obviously, you must have seen a lot of good and bad writing. What are some of the more memorable things that you've seen submitted to judges? Well,
I have lots of memorable things, but it doesn't have to do so much with legal writing; it had to do with the actual facts. The most memorable filing I got was, we had a prisoner civil rights case. So, it's a person that was in prison and he was suing the prison because they violated his right. I think it was probably the inadequate medical care claim, I think, under the Eighth Amendment.
And the defense attorney - the person who was representing the prison filed and said, "The plaintiff has informed me that he's escaped from prison and he no longer wishes to prosecute this action." I thought it was amazing because I was like, "Wow, this guy's so considerate, that even though he escaped from prison, he took the time to let counsel know that he didn't want to pursue his case anymore." But that had nothing to do with legal writing.
That definitely raises some questions of, what is their obligation then to try to get him back to prison? That's a very interesting situation.
Yeah, it was interesting. It was a civil case, not a criminal case, so we never knew what happened to him. Indeed, we followed up and he never appeared back in the case. So he didn't want to prosecute it, and the case was dismissed on that. But I would say one thing that is interesting in my job is the aspect of the bad legal writing. I'll have clerks come in and they'll start the job and they will be surprised, they're like, "Wow, this is federal court."
A lot of them come from BigLaw firms where they're used to BigLaw firm against BigLaw firm, where everything that's filed is written and looked over by four attorneys. But in the real world, it runs the gamut. There's lots of good writing, there's lots of bad. Even when I was at the Ninth Circuit, I still saw lots of surprisingly bad legal writing.
It is true. I remember the judge I worked for used to say, "This might not be the best work we've ever seen, but everyone's doing the best they can with the resources they have available. And we just have to try to respect that." He was very nice. But I do remember one time I was... I don't even know why I got suspicious and looked at all of this, but I found a case where somebody had put in like an ellipse or something and they'd taken out a "not" from a case.
So the case literally said exactly what they said it did not say. That didn't go well.
Yeah. That's not a good mistake, yeah. That
was not a mistake. That was on purpose, I'm pretty sure. Yeah, the interesting conversation at the next hearing with the judge being like, "Yeah, so why would we trust anything that you've said at this point?"
Yeah, luckily, most of the bad legal writing I come across is just because it was just bad. That did make me think, one point I wanted to stress, going back to my earlier point of how you can learn a lot from good legal writing - you can also learn a lot from bad legal writing. Same thing. If you read something and you're like, "This is just really confusing, what are the..." Take note. What was it about it that was confusing, how it could be improved.
And use it, again, as a learning tool to help sharpen your own legal writing skills.
Yeah, I think that's one of the best benefits of working for a judge, is you just get to read so much stuff, and it does span the gamut from really excellent to really bad. Alright, Luiz, we're about out of time here. Any final thoughts you'd like to share?
Oh yeah. I do have one thought, and just this is another thing that I always like to stress when I talk about legal writing with law students, is that legal writing is really important. It's crazy to me that it ends up being such a small subject, generally, in most law schools. It's just something you take for a couple of credits during your first year, but legal writing is, to me, the most important skill for being a good lawyer.
In popular culture, when people think of lawyers, we think of what we see in the movies and the TV shows - somebody standing up in court, arguing in front of a judge or arguing in front of a jury. But that's not how it is in the real world. Very few cases go to trial. Most motions actually get submitted and decided on the papers. Even if you have a hearing on the motion, 95% of the time the judge is pretty confident in their decision going in.
The judge has already made a decision on the briefing; it might just need a few things tweaked here and there. So much of the actual things that are decided in courts are through briefs. It's through writing. That's why writing's super important, before you even get to court. Again, you're writing internal memos, you're writing emails to clients, you're writing emails to opposing counsel, discovery letters to opposing counsel.
Being good at legal writing is such an asset to being a good attorney overall. And so that's why it's something that I always want to stress, especially with law students, that it's not just a class. This is a key skill to being an actual good attorney when you get out there in the real world.
I think that's such a great point, and I 100% agree. So much of the work of a lawyer is done in writing. And I do think sometimes people just float through their 1L Legal Writing, never really learn citations or anything like that. I certainly didn't until I was on the Law Review. And then you get to work and suddenly they're like, "You need to be able to do this. This is your actual job." So, I do think taking that time to learn these skills is so important. Alright, Luiz, we are out of time.
Thank you so much for joining us.
Okay, great. It was great. Thanks for having me, Alison.
My pleasure. If you enjoyed this episode of the Law School Toolbox podcast, please take a second to leave a review and rating on your favorite listening app. We would really appreciate it. And be sure to subscribe so you don't miss anything. If you have any questions or comments, please don't hesitate to reach out to Lee or Alison at lee@lawschooltoolbox.com or alison@lawschooltoolbox.com. Or you can always contact us via our website contact form at LawSchoolToolbox. com.
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