Story Time For Litigators: Part Deux (The Big Problem)
Recently, we left poor, Little Miss Muffet on the edge of a cliff. Her adoptive step-father, Dr. Muffet, had suffered a judgment in which his parental rights were terminated. But Dr. Muffet's lawyer "handles his own appeals." So he wrote the brief himself.
(I say "he" only because this attitude is decidedly old-school, and bespeaks a certain ego, which makes this lawyer presumptively male.)
Not that there's anything wrong with that.
But the brief in my (mostly) fictional story had a big problem.
And no, it wasn't the extraneous dates or the legalese or the gratuitous adverbs. Those are just symptoms that make up the "big problem."
After the jump is the big reveal on what the big problem is.
The big problem is you can't tell what Dr. Muffet's point is.
In reading my example of a poorly drafted fact section, did anyone happen to catch on to the reality that Dr. Muffet was entitled as a matter of law to have his parental rights restored?
- The incident complained of--the infamous spider near the tuffett whilst curds and whey were consumed--happened many months before Dr. Muffet adopted Little Miss Muffet. He was not her FATHER when the supposed endangerment happened.
- The spider complained of was not actually a spider at all, and was completely harmless.
- There was no endangerment.
- Oh, and it wasn't Dr. Muffet's non-spider.
Did you see all of that in the original fact statement?
If so, you deserve a medal. The writing could not have been more obscure if the author had intended to leave the judge alone in a fog like the picture above.
Of course I was the writer and that is exactly what I intended. But it is not far off from a lot of legal writing. There's nothing to clue the reader into which facts are important, either before the fact section itself or in the way the fact section is drafted. Instead, the lawyer has just dumped everything in his chronology notebook into the narrative.
It all may be true. But it's not all important.
Perhaps we lawyers are too shy. Why won't we just come right out and say:
- What we want; and
- Why are we entitled to it.
Doing so not only tells the judge what is important, it clues in the lawyer concerning what can be cut or what should be emphasized.
In Dr. Muffet's example, a summary before the fact section that reads something like:
Dr. Muffet is entitled as a matter of law to have his parental rights restored. The episode of alleged endangerment about which the state complains occurred before Dr. Muffet was Patience Muffet's adoptive parent. And it wasn't endangerment at all. The bug that scared Patience Muffet was non-venomous, and was not an insect that escaped from Dr. Muffet's collection because the incident did not occur at his house.
In a previous post on legal writing, I've mentioned the advice I was given from a colleague who is now an appellate judge. Her advice was to write so clearly that your brief can be understood by the judge who's reading at 3 o'clock in the morning while drunk.
In another, I mentioned giving the reader a road map before launching into the narrative. Don't kidnap the reader.
A good summary and some idiot-proof headings can go a long way to accomplishing this. Don't be coy. Don't leave the reader to work out and infer what your point is.
JUST SAY IT.
Coming soon: why I hate dates and delete them any time I get a chance. Watch this space.
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