From Passable to Polished: Unlocking Excellence in Legal Writing

A review of Elegant Legal Writing by Ryan McCarl, University of California Press. (2024)

Ryan McCarl's "Elegant Legal Writing" is a practical guide that equips attorneys with the tools and techniques to transform their writing from average to exceptional. This book is not just another legal writing guide; it's a resource that empowers lawyers with practical advice backed by cognitive science, stylistics, and the author's extensive litigation experience. It's a guide that doesn't just tell you what to do, but shows you how to do it, offering clear, actionable advice for crafting compelling legal documents.

The book is structured into three main parts, each addressing a crucial aspect of effective legal writing: style, substance, and process. In the style section, McCarl presents the core principles of legal writing, with chapters dedicated to achieving concision, using plain language, constructing strong sentences, improving organization and cohesion, and striking the right tone. The substance section dives into the practicalities of composing persuasive briefs and motions, strategically using legal authority, and telling a client's story through an engaging narrative. Finally, the process section tackles the real challenges of the writing process itself, from battling procrastination to leveraging technology to enhancing document design. 

Throughout the book, McCarl convincingly demonstrates how readability, aesthetics, and persuasiveness in legal writing are intertwined. Examples show how small choices related to word choice, sentence structure, organization, and presentation can affect how a document communicates to busy readers like judges. The book reveals the "why" behind excellent legal writing, not just the "how."

Another standout feature is the book's treatment of often-neglected topics like writing technology and typography. In our digital age, more is needed to write well - you need to know how to harness tools like Microsoft Word and understand the principles of effective document design. As McCarl notes, "Litigation is stressful enough without wrestling with your word processor."

But perhaps the book's greatest strength is McCarl's empathy and understanding of the writing process. He acknowledges the daunting nature of major writing projects and offers an array of useful strategies for overcoming procrastination, maintaining focus, and writing more efficiently. Any attorney who has struggled with the psychological barriers to producing their best-written work will find McCarl's advice in this area helpful and deeply validating.  

With its potent blend of advanced techniques and fundamental skills, Elegant Legal Writing is for both seasoned litigators and law students. While the focus is on litigation documents, the book's tips on concision, clarity, and persuasiveness apply equally to transactional lawyers and professionals in law-adjacent fields. This book is not just for those looking to improve their writing, it's for anyone who wants to master the art of effective communication in the legal world.

Whether you're a law student, new associate, or seasoned partner, investing the time to read and absorb the lessons in this book is likely to pay enormous dividends. Elegant Legal Writing is a significant addition to the legal writing literature and deserves a place on every attorney's reference shelf. Ryan McCarl is a gifted teacher and a powerful writer, and reading this book is like taking a master class in the art and science of legal writing.

Persuasion: How is Writing a Legal Brief Similar to Selling a Timeshare?

There is no obvious direct similarity between writing a legal brief and selling a timeshare. A legal brief is a document prepared by lawyers to strategically explain the facts, legal arguments, and reasoning behind their position in a court case. On the other hand, selling a timeshare involves sales tactics and presentations to convince potential buyers to purchase a vacation property ownership interest. They seem like two entirely different activities with little in common. However, the mindsets of the lawyer and timeshare seller share similarities. Both use the same principles and techniques. The art of strategic persuasion in legal brief writing can be illustrated by comparison to timeshare sales as a framework for discussion.

The Purpose of Persuasion:

The primary goal of writing a legal brief and selling a timeshare is to persuade the audience. In the case of a legal brief, the writer aims to convince the judge or court to rule in favor of their client. This requires presenting a compelling argument supported by legal precedents, laws, and facts. A timeshare salesperson's goal is to persuade potential buyers. They want the buyers to purchase a shared ownership in a vacation property. They must highlight the benefits. Equally important, they must address concerns. They must create a perception that shows the value of the timeshare while also addressing any potential concerns the buyer may have, thus instilling confidence in the buyer's decision. A judge who aims to make the best decisions under the circumstances considers both sides of the argument. Lawyers must recognize that most decisions that judges make can go either way.

Structuring the Argument:

Both legal briefs and timeshare sales rely on a clear, organized structure. Good structure is an essential key to persuasive writing. A legal brief has an introduction that sets the stage. It has a statement of facts, a detailed argument, and a conclusion. The conclusion summarizes the key points and the desired outcome. Likewise, a timeshare sales pitch often starts with an introduction to build rapport. Then, it presents the benefits followed by a section addressing potential objections. Finally, it has a closing that seeks to secure the sale. This plan helps guide the audience through the argument. It leads them to the desired action.

Understanding the Audience:

Tailoring the message to the specific audience is crucial in both legal brief writing and timeshare sales. A legal brief must consider the court's past rulings. It must also consider its legal philosophy and procedural preferences. The brief must use this information to craft an argument that resonates with the judge. A timeshare salesperson must do the same. They must understand the buyers' needs, lifestyles, and concerns to customize their pitch well. They can do this by showing a deep understanding of the audience. It will help them build credibility and trust.

Emotional Appeal and Evidence:

While legal briefs primarily rely on logic and law, they can also leverage the power of empathy when appropriate. By evoking sympathy for the client or highlighting an injustice, a legal brief can effectively appeal to the court's sense of fairness. In timeshare sales, the use of emotional appeals is more pronounced. These pitches often paint a vivid picture of luxurious vacations and the creation of lifelong memories, tapping into the buyer's emotional desires. However, it's crucial to note that both legal briefs and timeshare pitches should back their claims with solid evidence. Legal briefs often cite past cases and laws, while timeshare sales may use testimonials and data to enhance their credibility.

Addressing Counterarguments:

Addressing counterarguments is not just a necessary part of legal brief writing and timeshare sales, it's a sign of mastery. A well-crafted legal brief acknowledges and counters potential weaknesses with strong legal reasoning. Similarly, a skilled timeshare salesperson is prepared to address common objections and concerns. This direct approach not only demonstrates the writer or salesperson's expertise, but also instills confidence in the audience, assuring them that all aspects have been thoroughly considered.

Conclusion:

The contexts and stakes differ a lot. But, writing a legal brief and selling a timeshare share some basic persuasion principles. Both need a clear audience understanding. They need a clear argument. It requires strategic evidence and emotion. They also need the skill to expect and address counterarguments. By mastering these techniques, legal brief writers can craft compelling arguments. They persuade judges, just as timeshare salespeople convince buyers to make a purchase. Ultimately, persuasion is at the heart of both. It shows the importance of good communication in achieving goals.

Unleashing the Power of AI to Write Legal Briefs Is Easier than You Might Think.

The adage "garbage in - garbage out" applies to AI chatbots. The first widely available chatbot, ChatGPT 3.5, was trained by scraping information from the web. This led to some strange conversations and produced a justifiably skeptical public attitude.  The lesson was clear. If you want sensible and accurate output from a chatbot, give it sensible and accurate information to work with.

After playing and experimenting with the more advanced  4.0 versions of ChatGPT and Anthropic's Claude, I was impressed by the chatbots' writing and reasoning abilities, and I decided to put AI's ability to write legal briefs to a real-world test. I extracted a motion to dismiss from the federal courts to use as an example.   

Most motions and briefs in federal courts are conveniently available online through PACER. I first located a promising published opinion and backtracked the corresponding district court docket for a specific motion and brief. 

Whalen v. Stryker Corp., 783 F. Supp. 2d 977 (2011) involved a 12(b)(6) motion to dismiss by reason of a statute of limitation bar. This required the interpretation and application of Kentucky's discovery rule. I was able to download the complaint, answer, and the defendant's brief from PACER.

I first extracted the District Court's statement of facts of the case and created a text file.

Next, I extracted the defendant's MTD/SOL argument (there were other issues that I omitted) and created a text file.

Then, I created two legal authority files.. (1) A basic statement of the standard for a Rule 12(b)(6) motion, and (2) Kentucky authority on the SOL discovery rule, consisting of the statute and pertinent quotes from four Kentucky Supreme Court opinions.

Finally, I used the following chatbot prompt:

PROMPT

Assume the role of a senior litigation attorney. You have filed a civil products liability lawsuit in a Kentucky court seeking to recover damages suffered  by your client, the plaintiff, from an implanted "pain pump."

The defendant's attorney has filed a motion to dismiss your complaint based on a claim that the plaintiff's court case was not filed within the one-year statute of limitations.

1. A full description of the facts of the case is contained in an attached text file.

2. Attached is a text file describing the legal standard for motions to dismiss for failure to state a claim.

3. Attached is a text file describing the defendant's legal argument to support the motion to dismiss.

4. I have attached a text file describing Kentucky law regarding the start date for a cause of action in relation to the statute of limitations.

<TASK> Please write a comprehensive, persuasive, and professional legal argument explaining why the court should deny the defendant's motion to dismiss.

Here is the resulting output from Caude 4.0.

MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

Defendant Stryker Corporation's ("Stryker") motion to dismiss should be denied because Plaintiff Cheryl Whalen has properly stated a claim upon which relief can be granted. The Complaint was timely filed within one year of when Ms. Whalen discovered, or in the exercise of reasonable diligence should have discovered, both her injury and that it may have been caused by Stryker's conduct. The discovery rule tolled the statute of limitations until at least November 13, 2009 when the FDA first publicly revealed a potential association between pain pumps and chondrolysis. Ms. Whalen filed suit on November 11, 2010, within the one-year limitations period.  

Furthermore, even if this Court finds that Ms. Whalen should have discovered her claim earlier through reasonable diligence, Stryker's fraudulent concealment of the risks associated with its pain pumps prevents it from asserting a limitations defense. For these reasons, explained further below, Stryker's motion must be denied.

II. ARGUMENT 

A. The Discovery Rule Tolled the Limitations Period Until November 2009

Under Kentucky's discovery rule, a cause of action does not accrue until the plaintiff discovers or reasonably should have discovered (1) an injury and (2) that the injury may have been caused by the defendant's conduct. Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 (Ky. 2010). Here, Ms. Whalen has alleged that she was not aware, nor could she have reasonably discovered through the exercise of reasonable diligence, that she had been injured by the Stryker pain pump until the FDA published its safety bulletin in November 2009 first revealing a potential link between pain pumps and chondrolysis. Compl. ¶ 19.

At the motion to dismiss stage, the Court must accept these allegations as true and view them in the light most favorable to Ms. Whalen. Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). A Rule 12(b)(6) motion may only be granted if the facts alleged definitively establish that the claim is untimely. Tomlinson v. Siehl, 459 S.W.2d 166, 167-68 (Ky. Ct. App. 1970). Stryker cannot meet this high burden.

Contrary to Stryker's arguments, the Complaint does not establish that Ms. Whalen should have discovered her claim earlier than November 2009 merely because she continued to have shoulder problems and seek treatment. Under Kentucky law, a patient's mere knowledge of an undesired medical outcome does not necessarily trigger the limitations clock, as the patient may reasonably attribute it to an unfortunate result of proficient care rather than negligence or a defective product, particularly given their lack of medical expertise. Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005).  

Here, the Complaint alleges that the first public disclosure of a potential association between pain pumps and chondrolysis did not occur until the FDA's November 2009 bulletin. Compl. ¶ 19. Prior to that time, Ms. Whalen, a layperson, had no reason to suspect that her continuing shoulder problems were the result of a defect in Stryker's medical device as opposed to an unavoidable surgical complication. Even if some inaccessible, highly technical medical literature hinted at a theoretical risk, that is not the type of knowledge that a patient can be expected to glean through "reasonable diligence." See, e.g., Louisville Trust Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky. 1979) (discovery rule protects plaintiffs in latent injury cases caused by exposure to harmful products). At minimum, it is a question of fact for the jury whether Ms. Whalen acted reasonably under the circumstances. See Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 712-13 (Ky. 2000).

Accepting the Complaint's allegations as true, as the Court must at this stage, the discovery rule tolled the statute of limitations until at least November 2009. Because Ms. Whalen filed suit in November 2010, her claims are timely.

B. Fraudulent Concealment Estops Stryker From Asserting a Limitations Defense

Even if the discovery rule did not apply, Stryker would be estopped from asserting a limitations defense based on the doctrine of fraudulent concealment. The Complaint alleges that Stryker knew or should have known about the link between its pain pumps and chondrolysis based on a "wealth of scientific information," yet concealed this risk while continuing to promote the pumps' use. Compl. ¶¶ 12, 20. If proven, these facts would establish the elements of fraudulent concealment: (1) Ms. Whalen's lack of knowledge of the facts giving rise to her claim; (2) her inability to obtain that knowledge by reasonable diligence; (3) Stryker's actions in concealing a known risk; and (4) Ms. Whalen's detrimental, reasonable reliance on Stryker's conduct. See Fluke, 306 S.W.3d at 62.

The self-serving argument that Stryker could not have concealed this risk because some "wealth of scientific information" was publicly available, Def.'s Mem. at 5, turns the Complaint's allegations on their head. Clearly, if Stryker was aware of this "wealth" of troubling data, as the Complaint alleges, it was in the best position to appreciate the risk and had a duty to disclose it rather than conceal it. It cannot avoid responsibility by arguing, in effect, that Ms. Whalen should have discovered what Stryker itself failed to disclose. These are quintessential factual issues not properly resolved on a motion to dismiss.

III. CONCLUSION

For the foregoing reasons, Stryker has failed to show that Ms. Whalen's claims are definitively time-barred on the face of the Complaint. The discovery rule and fraudulent concealment doctrine preclude dismissal based on the statute of limitations at this early pleading stage. The Court should, therefore, deny Stryker's motion to dismiss in its entirety.

Artificial Intelligence and Legal Self-help

"AI is not the future expectation; it is the present reality."

The impact of artificial intelligence (AI) is reshaping the legal landscape, especially in the realm of pro se litigation. The demand for affordable legal services often exceeds the public's ability to pay. This disparity is where AI's potential shines, offering a solution to those who may be forced into court but lack the means to hire a lawyer.

"The justice gap—the large difference between the number of people who want or need legal assistance and the number who receive it—is widely perceived as a failure of the United States legal system to provide equal justice under the law. Involuntary self-representation is especially prevalent in civil cases: no right to counsel exists for civil litigants, and, because most low-to-moderate-income families and individuals cannot afford legal services, approximately three out of every five people in civil cases go to court with no lawyer."

How Should Legal Ethics Rules Apply When Artificial Intelligence Assists Pro Se Litigants?

The notion that an intelligent layperson could navigate the complexities of the legal system with minimal guidance and research assistance was naive. As Nolo Press has shown us, catering to the legal self-help market is a viable business plan. Yet, the intricacies of legal thinking, the nuances of courtroom procedures, and the pitfalls of pre-trial processes have proven to be formidable challenges for even the most determined and well-informed non-lawyers. A pro se litigant taking on a jury trial is often a recipe for disaster, as they find themselves outmatched and overwhelmed by the legal system's labyrinthine workings.

"The potential of AI to empower pro se litigants is immense. As AI continues to advance, it will soon be able to generate high-quality written motions and briefs. This development will provide non-lawyers with a powerful tool for pursuing equity and leveling the playing field in the legal system." 

The Promise and Peril of AI Legal Services to Equalize Justice

Beyond simplifying documentation, AI can also answer legal questions and offer assistance at low costs. Self-help chatbots empower low-income individuals to take their civil issues to court by providing immediate legal information about their specific case or situation. These chatbots are designed to advise clients about their rights, legal strategies, and procedures in civil court."

Can AI give me legal advice?

"NO." (not yet)  "AI can't give legal advice. It might give clear and confident-sounding answers, but those answers are very often wrong. Following advice generated by AI may lead to mistakes in your case."

Artificial Intelligence as a Legal Help Tool

The potential impact of AI on pro se litigation is substantial. AI-powered tools will enable pro se litigants to present their cases more effectively and efficiently by analyzing legal precedents and crafting persuasive arguments. The days of struggling to decipher legal jargon and stumbling through procedural minefields may soon be a thing of the past as AI guides non-lawyers through the intricacies of the legal system.

"There is a crisis currently within the American justice system, a crisis in access to justice. Under the current approach, there are not enough lawyers to go around. Reform is needed to make the justice system more accessible. Incorporating artificial intelligence (“AI”) may be at least part of the solution. Recent developments in AI have flooded news outlets since systems like ChatGPT became available to the public. These systems have allowed students and organizations to achieve new levels of productivity and creativity. With this, it is still important to note that these systems have significant drawbacks to consider as they are still in their infancy stages."

AI & Pro Bono

The integration of AI into pro se litigation has the potential to transform the justice system. By offering affordable, user-friendly legal assistance, AI can help bridge the gap for those who have been historically underserved by the legal system. The prospect of a more equitable and accessible justice system, where justice is not determined by one's financial status, is a transformative and exciting possibility.

"AI’s broader potential to streamline legal services is also evident in the retail market segment. The inability of the vast majority of individuals and small businesses to secure legal representation due to lack of access and high cost is an acute problem often referred to as “the access to justice crisis.” It has profound implications for our society and its rule of law. AI is a game changer. "

How Artificial Intelligence Will Transform The Delivery Of Legal Services

As the legal industry grapples with the implications of AI, it is clear that clients, particularly those who cannot afford traditional legal representation, stand to be among the primary beneficiaries. The world of pro se litigation is ripe for massive innovation, and AI is poised to be the catalyst for change. As AI-powered tools become more sophisticated and user-friendly, we expect a surge in non-lawyers successfully navigating the legal system on their own terms.

While the rise of AI in pro se litigation is not without its challenges and potential pitfalls, the overall trajectory is one of hope and empowerment. As the legal landscape continues to evolve, we must embrace AI's transformative potential and work to distribute its benefits fairly. The future of pro se litigation is bright, and AI will undoubtedly play a pivotal role in shaping that future.

85-second AI task description for busy lawyers - Merging an Answer with a Complaint

85-second AI task description for busy lawyers - Merging an Answer with a Complaint

This video presents a nifty hack for lawyers who must match up a defendant's answers with the complaint's allegations . . . paragraph by paragraph. Since an answer rarely reproduces each of the complaint's allegations . . . it's not easy to see what's being admitted or denied,

We created a chatbot task to merge the admissions and denials of a defendant's answer with the corresponding allegations in the plaintiff's complaint. The output is a list with each allegation immediately followed by the defendant's answer.

This makes it much easier to identify the points of contention or agreement

First: Upload your Complaint and Answer PDF files to the Chatbot

Then: Enter the following chat prompt:

[Chatbot Task Prompt - BEGIN ]

The two attached PDF files are the plaintiff's complaint in a civil court case and the defendant's answer to the allegations of the complaint.

The purpose of this TASK is to combine the contents of the two files so that each of the plaintiff's allegations is immediately followed by the defendant's response to that allegation.

The text paragraphs in each document are numbered consecutively, and the numbered paragraphs in the answer correspond to the paragraph in the complaint with the same number.

The Defendant's answers either: 

1 admit the truth of the allegation, 

2 deny the allegation, 

3 admit part and deny part of the allegation, or 

4 claim lack of knowledge of the allegation.

STEP 1 - Extract the first paragraph from the plaintiff's complaint and add it to an output list with the identifier COMPLAINT, plus the paragraph number and the original text.

Step 2. Extract the corresponding numbered paragraph from the defendant's answer and add it to an output list with the identifier ANSWER, plus the paragraph number and the original text.

Repeat Steps 1 and 2 for each of the numbered paragraphs.

IGNORE page numbers.

IGNORE single lines of text that are not associated with numbered paragraphs.

If the document has a number sequence of 1 to 28 along the left margin, IGNORE those numbers.

temperature = 0

[END Task Prompt]