Elegant Legal Writing, book by Ryan McCarl
The best book I have found to help you make your legal writing more effective.
Reviewed in the Champion, July 2024 (the magazine of the National Association of Criminal Defense Lawyers), Available on Amazon.
Lawyers who want to improve their writing are often advised to read Brian A. Garner’s, Legal Writing in Plain English: A Text with Exercises, (3d ed. 2023). It is a very good book for younger lawyers to learn how to write well, but it is not the best book for more experienced lawyers. Ryan McCarl, a practicing litigator and law professor, has published a much better book titled Elegant Legal Writing. Ryan McCarl, Elegant Legal Writing (2024).
Garner is the undisputed dean of authorities on legal writing. Over the last 30 years, Garner has published books on style, grammar, and usage; a column in the ABA Journal with exercises for lawyers to test their ability to discern good writing from bad; and two books with Justice Antonin Scalia, one on interpreting the law and the other on persuading judges.
Legal Writing in Plain English is a book best suited for a law school legal research and writing class. It tells legal writers what they should and should not do, gives examples that illustrate this advice, and provides exercises: basic, intermediate, and advanced that can provide a deep level of understanding of what makes good legal prose good. But Garner’s book provides too little advice and too much exercise to be useful to lawyers who need a simple way to correct bad habits and instruction on how to write more effectively without having to spend hours responding to exercise questions.
McCarl’s book does this. Elegant Legal Writing is divided into three parts: Style, Substance, and Process. If your main concern is simplifying your writing so that your audience, be it a judge or opposing counsel, gets the message you are trying to get across, and freeing yourself from modes of communication learned in law school that hinder understanding, this book will help you get close to your goal.
McCarl explains that strong legal prose requires that the text be clear and conveys its intended meaning, is easy for the reader to understand, and is efficient, conveying the most amount of relevant information needed for the particular task given its length and difficulty. These are the keys to removing the barriers to understanding. Id. at 9. How can one do this?
In chapter two, he addresses concision. Here, McCarl advises legal writers on the phrases to eliminate from their prose. For example, they should do away with introductory phrases, such as “it is important to keep in mind that” or “in the final analysis.” Id. at 17.and they should remove intensifiers, such as “unquestionably” or “significantly.” (I am very guilty of doing the latter.) Id. at 18-19. Redundant modifiers, a list that seems to have been borrowed from a George Carlin routine, include “completely destroyed” and “entirely omitted.” Id. at 21.
McCarl also shows how to condense phrases, conveying the same meaning but in a way that is easier for the reader to understand. For example, “deemed required” should be condensed to “required,” and “is violative of” should be condensed to “violates.” Id. at 25. Although McCarl does not say it here, condensing verb phrases in this way will help to structure sentences in the active voice, which is far easier for any reader to understand.
In chapter three on plain language, McCarl asks lawyers to ignore the siren call of legalese and avoid clichés like “it goes without saying” and “add insult to injury.” Id. at 37-38.
McCarl also addresses controversies in legal writing, such as the dispute between Garner and his sometime co-author Justice Antonin Scalia over whether contractions are permissible — Garner says yes, Scalia says no. Id. at 36.— and how best to write gender-neutral prose. Id. at 40.
The most important chapter in Elegant Legal Writing is chapter 4, on strong sentences. In this chapter, writers learn the importance of keeping sentences short. Id. at 44. McCarl also gives instructions on changing the focus of a sentence from what happened to what someone did, Id. at 47, and discusses a “radical idea” (my words) whose time is overdue — putting citations into footnotes. Id. at 54.
The greatest impediment to effective legal prose is the use of the passive voice. McCarl explains how to avoid that practice. He also discusses how to give prose forward movement. This is the key to making the audience want to read what you have to say. Legal writing is a species of nonfiction writing. Great nonfiction writers have made legal disputes come alive through language that captures the imagination of the reader. Lawyers can find such writing in briefs filed by the best advocates before the Supreme Court. Other books discuss this topic in greater detail, but McCarl introduces the reader to it.
McCarl’s book addresses other topics besides improving one’s writing. Chapter 8, “Using Legal Authority,” explains the hierarchy of legal authority (which lawyers need to know to determine whether a case they or their opponent cites is binding on the court or just persuasive); the use of parentheticals in citations; minimizing the use of block quotes; and proper format for citations.
McCarl’s final chapter addresses the use of technology. This is a fitting ending to his book since the use of artificial intelligence to improve writing and conduct research is a major source of controversy among lawyers, judges, and professors who fear its potential to promote abusive and misleading practices and replace the judgment of attorneys with entities that have no judgment at all. Maybe in McCarl’s next book, he will delve deeper into this topic.