Georgia Bar Journal December 2011 : Page 50

Writing Matters Checklists for Powerful, Efficient Legal Writing by Jennifer Murphy Romig W riting can be deeply satisfying but also equally frustrating. Writers may struggle with getting started, creating an effective outline, avoiding common errors or a combination of challenges. In the legal context, lawyers may wish for their writing to be more power-ful and efficient, but not know what to change or how to implement changes. One solution that speaks to each phase of the writing process and every writing situation is this: a checklist. Actually, the solution is not just one single checklist, but the method of using checklists throughout the writ-ing process as well as in broader conversations about effective legal writing. First, it is important to define what a checklist is—and what makes a good one. There are actually three dis-tinct variations on effective checklists, as outlined in the inspiration for this column, Atul Gawande’s book The Checklist Manifesto: How to Get Things Right (Metropolitan Books 2009). The most classic type of checklist is a “ read-do.” This type of checklist is a list of mandatory steps to “read” and then “do” in sequence to complete a task. Another familiar checklist is the “do-confirm.” You “do” the task in your own way, and then “confirm” that it was done correctly by using the checklist. Georgia Bar Journal 50

Writing Matters

Jennifer Murphy Romig

<br /> Checklists for Powerful, Efficient Legal Writing<br /> <br /> Writing can be deeply satisfying but also equally frustrating. Writers may struggle with getting started, creating an effective outline, avoiding common errors or a combination of challenges. In the legal context, lawyers may wish for their writing to be more powerful and efficient, but not know what to change or how to implement changes.<br /> <br /> One solution that speaks to each phase of the writing process and every writing situation is this: a checklist. Actually, the solution is not just one single checklist, but the method of using checklists throughout the writing process as well as in broader conversations about effective legal writing.<br /> <br /> First, it is important to define what a checklist is—and what makes a good one. There are actually three distinct variations on effective checklists, as outlined in the inspiration for this column, Atul Gawande’s book The Checklist Manifesto: How to Get Things Right (Metropolitan Books 2009). The most classic type of checklist is a “readdo.” This type of checklist is a list of mandatory steps to “read” and then “do” in sequence to complete a task. Another familiar checklist is the “do-confirm.” You “do” the task in your own way, and then “confirm” that it was done correctly by using the checklist.<br /> <br /> A third kind of checklist is based on process rather than substantive steps, and is most useful for professionals working in teams. Process-based checklists force team members to communicate and brainstorm problems and solutions at specified points during the team project. For example, in building a large multistory building, team members such as architects, construction managers, pipefitters and others must stop and confer at specific points in the process before moving on to the next phase of construction.<br /> <br /> What all good checklists have in common is that they must be “simple, brief and to the point.”1 Checklists that are too lengthy or confusing will not generate good results and are likely to be simply disregarded in practice.<br /> <br /> For lawyers attempting to write, and to write well, checklists are valuable at the beginning, middle and end of the writing process. Teams of legal writers beginning a project, especially a long, complex or high-stakes project, can benefit from using a process-based checklist of short check-ins at various points throughout the project. For counsel and local counsel working together, such check-ins would promote timely discussion of various issues such as how a particular strategy might succeed—or flop— in the local court environment. For senior lawyers delegating to junior lawyers, such check-ins could help minimize unnecessary rewriting time due to a project’s veering off in the wrong direction.<br /> <br /> For solo lawyers as well as those writing in teams, the substantive “read-do” and “do-confirm” checklists are equally promising at the beginning of a writing project. A template for a document is really a “read-do” checklist of components to include, such as the following outline of a demand letter:<br /> <br /> Choice of appropriate recipient, depending on strategy; Introduction signaling purpose of letter; Body including exposition, legal authority and argument, tailored for the situation; and Concise demand in closing.2<br /> <br /> These types of checklists may seem fairly simple, but they can remind the writer of the expected parts of such a document, and can make the writing process more efficient by helping the writer break down a writing project into smaller pieces.<br /> <br /> Checklists can also be helpful for brainstorming the content of a legal argument in any type of legal analysis or argument. My favorite checklist-style source on this point is Wilson Huhn’s book The Five Types of Legal Argument (Carolina Academic Press 2002). These five arguments include arguments from (1) statutory text, (2) statutory intent, (3) precedent, (4) tradition and (5) policy. Within each type of argument, Huhn details further arguments to consider, such as lists—one might even say checklists—of statutory arguments and counter-arguments. By testing a draft against the classic list of arguments, a writer can ensure a thorough set of affirmative arguments. Such checklists could also better prepare the writer to anticipate counter-arguments.<br /> <br /> At the end of a writing project, checklists can help both lawyers working alone and those working in teams. Checklists are particularly valuable in catching errors— what Gawande calls “the stupid stuff.” A “do-confirm” checklist could help the writer to write a draft, then confirm that certain editing errors are not present. These types of checklists can be found in legal writing textbooks3, legal writing CLE materials4 and free online sources.5<br /> <br /> To improve your writing in general—separate and apart from any one project—consider creating your own personalized writing checklist. General editing checklists in books and online can be a good starting point but should be tailored to address your own strengths and weaknesses. If you only use passive voice when it fits the situation, then your checklist does not need an item for removing inappropriate passive voice.6 If you have always been told your sentences are overloaded, then add an item for breaking up long sentences. Creating a writing checklist like this, and talking about it with experienced lawyers, can be an excellent opportunity for lawyers at all seniority levels to discuss legal writing issues in a constructive, non-critical way.<br /> <br /> These personalized writing checklists can help good writers who want to become great. A “good to great” checklist might include smoothly connecting the beginning of each sentence to preceding material, using grammatical “shape” to reinforce the content, and ending each paragraph and section on a persuasive note.7 Or, to enhance the demand-letter checklist described above, a writer seeking to become more advanced might use a checklist of cognitive considerations under exploration in current legal writing scholarship such as the following8:<br /> <br /> Does the letter set the appropriate initial impression, since initial biases are hard to overcome?<br /> <br /> If appropriate, does the letter use a “foot in the door” strategy to seek the audience’s agreement with an initial small request, potentially opening the door to larger requests?<br /> <br /> Does the letter take into account potential reader backlash due to anger or perceived unfairness?<br /> <br /> There is an obvious overlap between checklists for writing and checklists for lawyering more generally. For example, as a new lawyer I benefited greatly from a checklist of potentially applicable affirmative defenses to consider in drafting an answer. This checklist was a help both to competent lawyering and to drafting the answer efficiently. This column does not mean to suggest that the checklist concept is valuable only for improving legal writing; checklists can in fact enhance lawyers’ professional performance across the board.

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