The Law is Communication

by Judge James L. Kimbler

Lincoln said: A lawyer’s advice is his stock in trade.

That advice is only valuable if it is communicated to someone.

Everything a lawyer does involves communication to someone. That someone may be a client, opposing party, opposing attorney, heirs to an estate, or a judge.

The practice of law is communication.

Most of the time when you are communicating to judges you are writing.

Less than 10% of all cases get tried. The percentage is probably closer to less than 5%.

Every case begins with a written communication.

Most appearances are initially made in writing.

Motions are usually made in writing.

Arguments are often made in writing.

As a practical matter trial judges may want communications in writing because they can read a lot faster than they can listen.

This means that you must make sure your written communications are the best that they can be because often they may be the only opportunity you get to persuade a judge to do something that your client needs that judge to do.

What can you do to make your writing better?
Here are 10 suggestions:

1. Avoid passive voice Use active voice.

A. Active voice: the subject of the sentence is doing the action.

Passive voice: the subject of the sentence is receiving the action.

Examples:

Smith assaulted Jones. Active voice. Smith did the action.

Jones was assaulted by Smith. Passive voice. Jones received the
action.

B. Usually active voice is easier to read and has more impact.

C. Passive voice may be used to hide the identity of the person doing the action.

A very familiar line from Watergate crisis:

Mistakes were made. Notice that the sentence doesn’t require the identity of the maker of the mistakes. May be preferred when you are writing for the defense. May want to blur responsibility.

D. Not saying you won’t sometimes want to use passive voice, but I am saying that I want you to make a conscious decision to use passive voice.

2. Identify parties by real names, not by their position in the action.

A. It is easier for the reader to understand if you are using names instead of titles in the action.

B. Usually has more impact because you are “humanizing” the case.

C. You want the reader emotionally involved, not emotionally distant.

The plaintiff was injured.

Donna Smith broke her leg.

3. “Chain” your writing.

A. Take the reader from:

Old to new.
Past to present
Familiar to unfamiliar.

Donna Smith broke her leg. She broke her leg in the collision with Mary Jones. Mary Jones caused the collision by running the red light. The red light controlled the intersection at Bank and Main Streets in Spencer, Ohio.

B. Chain your sentences and then chain your paragraphs.

C. This is a very persuasive form of writing, especially if you can get the reader to agree with your initial premise.

4. Use short sentences.

A. Sentences should usually not exceed 15-18 words. Anything over that becomes harder for the reader to retain.

B. Breaking up sentences allows the reader to absorb the information faster and more effectively.

5. Use more paragraphs.

A. This goes along with the idea of shorter sentences. Shorter paragraphs let the reader understand what you are saying faster.

6. Avoid nominalization of verbs.

A. This occurs when we take verbs and make them into nouns

The device detects small signals. (detects is a verb)

The device is used for the detection of small signals.
(detection is a noun)

The screen displays the test results

The screen is utilized for the display of the test results.

They installed the new equipment.

They did the installation of the new equipment.

B. Notice the shift from the active to the passive voice in the examples given above.

C. Nominalization will often lead to passive voice use.

7. Be careful with adverbs and adjectives.

A. Often use of adverbs and adjectives weaken the impact of your writing.

He ran quickly to the injured girl.

He sprinted to the injured girl.

He dashed to the injured girl.

He raced to the injured girl.

B. When you use adverbs and adjectives stop and ask yourself if there is a more descriptive word, a more powerful word, you can use.

8. Use footnotes to reference material.

A. Do not mean “talking footnotes” where you convey information that should be in the body of the text.

B. Mean reference footnotes, such as in case citations or references to supporting facts.

Examples:
The Ohio Supreme Court recently held that when a driver of a car is arrested, the officer could search the passenger compartment as a search incident to an arrest.

Jones admitted that he ran the red light.

C. Notice that using the footnotes allows the reader to check out your sources without breaking up the flow of the text.

D. More and more appellate judges are using this technique.

E. Avoid talking footnotes, however, which are often seen in law reviews. If you are putting substantive information in a footnote, chances are it belongs in the text, and if it shouldn’t be in the text, chances are it shouldn’t be in the writing at all.

9. Use proper citation form.

A. Ohio has its own citation rules, which can be found on the Supreme Court’s website. The major difference is that in Ohio the date of the decision follows the caption, coming before the volume and page numbers.

B. Since May of 2001 there is no longer any difference between published and unpublished opinions. No matter what format, any opinion of the Ninth District Court of Appeals is controlling on any trial judge in the Ninth District Court of Appeals.

C. Appellate court opinions from other districts, however, are not controlling on trial judges in the Ninth Appellate District. Trial judges may consider them persuasive; they do not have to follow them.

D. If you cite decisions from other appellate districts, you should make it clear that the decision is not from the Ninth District Appellate District. If your opponent cites to a case from another appellate district, you should make it clear to the trial judge that the decision is not from the Ninth Appellate District and its holding is not binding on him/her.

E. Make sure you read and understand the Rules for Reporting of Opinions which are found on the Ohio Supreme Court website and also in the various books containing Ohio’s Rules of Court.

10. Edit and the edit again.

A. If you have the time, make sure you edit your work. Go over the text and see if you can take out unnecessary words. I have found that my opinions are better if I edit them after my secretary gives them back to me after she has edited them.

B. Have someone else read them to make sure that the text is clear. A problem with editing you own text is that you tend to skip over mistakes because you know what you mean. Having someone else proof your text means that they might find mistakes you missed because of they are looking at it fresh.

C. Beware of relying just on spell check to catch mistakes. Remember spell check looks for misspellings, not necessarily for how the word is used. Example: trails instead of trials.

Copyright by Judge James L. Kimbler. All rights reserved. Do not use without permission. If interested in reprinting, please email to JudgeJamesKimbler@yahoo.com.