Irving Younger was the master of legal writing and legal speaking.
Before commencing his brilliant 30-year career, he graduated from Harvard University in 1953 and from New York University School of Law in 1958.1 After serving as an associate at Paul, Weiss, Rifkind, Wharton & Garrison and as an assistant U.S. attorney for the Southern District of New York, he established a law firm with his wife, Judith T. Younger.2 In 1965, he began teaching full time at NYU.3 He was then elected from Manhattan's Silk Stocking District - the storied Ninth Municipal Court District - to the New York City Civil Court, where he sat from 1968 to 1974. In that time he was promoted to New York County acting Supreme Court justice and served as an NYU Law adjunct.4 Judge Younger retired from the bench in 1974 to teach at Cornell Law School as the Samuel S. Leibowitz Professor of Trial Techniques.5 From 1981 to 1984, he became partner at Williams & Connolly in Washington, D.C.6 Then he became the University of Minnesota's Marvin J. Sonosky professor of law until his untimely death in March 1988.7 Judith T. Younger still teaches at the University of Minnesota Law School.8
Many consider Professor Younger the greatest speaker on the law in American history.9 He lectured for BARBRI and created countless video and audio tapes for students on evidence, trial practice, and civil procedure.10
Professor Younger is almost as well known for his writing as he is for his speaking. As a great communicator, he wrote as eloquently as he spoke. He wrote two books on the law of evidence: The Art of Cross Examination in 1976 and, with Michael Goldsmith, Principles of Evidence in 1984.11
When the study of American-style legal writing was in its relative infancy, Professor Younger also wrote 26 columns on legal writing in the American Bar Association Journal as part of a series called Persuasive Writing. In 1990, his columns were compiled into a book: Persuasive Writing.12 Five of his columns were republished in the Best Of series in the Scribes Journal of Legal Writing: Symptoms of Bad Writing, Skimming the Fat Off Your Writing, A Good Example and a Bad, Lessons from a Bar Journal, and Culture's the Thing.13 Although he wrote his columns over 30 years ago, judges, lawyers, and law students can benefit forever from his timeless insights. This two-part column features his best insights on legal writing.
In the first of our two-part column, we focus on Professor Younger's suggestions to improve the mechanics of legal writing.
Romancing the Verb
Professor Younger suggested using verbs. Verbs translate thought with "clarity and conviction."14
Verbs describe an action, event, or a state of being.15 "Agree," "decide," "conclude," and "argue" are verbs. Verbs are essential. They follow the subject matter of every sentence.
Professor Younger offered three simple rules to improve your use of verbs:
• Use verbs "freely and frequently."16 They identify the who and what of every sentence. They "give movement and life" to writing.17
• Replace verbs that convey no action - like "to be," "is," or "are" - with regular verbs as in the examples above.18 Consider this issue statement using "is": "The question in this case is whether a contract is enforceable under the Statute of Frauds when the agreement is oral and by which goods of a greater than $500 value are sold."19 The next issue statement, with regular verbs, sounds better: "This case raises the question whether the Statute of Frauds forbids enforcement of an oral agreement for the sale of goods valued at more than $500."20
• Use the active rather than the passive voice. For example, you should "discuss" the next issue rather than state that the next issue "is to be discussed." The active voice is more concise. And the active voice gives words an energetic flow to capture your reader's attention.
Skimming the Fat Off Your Writing
Good legal writing takes time - time to edit and revise. Not every lawyer enjoys the luxury of time. Professor Younger identified two principles to streamline the editing process:
• Eliminate.21 Review each word to determine the purpose it serves. Excise words that don't add to the main point: they're unnecessary. This first step separates the necessary and unnecessary components of your writing.
• Boil down22 Reflect on word choice and the length of your writing. As Professor Younger cautions, a "briefer version is always better than a longer."23 Boiling down stresses the precise phrasing and verbiage you propose to use.
The Definitive Word on Definitions
Definitions enhance clarity and reduce ambiguity. A definition states the exact meaning of a word.24 Definitions can accomplish several objectives, including confining, expanding, and arbitrarily attributing a word's meaning.25 Whether you're drafting a pleading, agreement, or statute, definitions will help make your point concisely. Professor Younger described four ways to define:
• A term should be defined by a simple and precise term.26 For example, "infant" means "a person who has not attained the age of eighteen years."27
• A term should be analyzed by its components.28 For example, "United States" means "the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States."29
• A term should be defined with reference to the whole of its parts.30 For example, "complaint" includes "the notice of petition and the petition, respectively, in a special proceeding." 31
• A term can be defined by listing all items the term encompasses.32 Note the distinction between "means" and "include" in any list that follows a definition. "Means" will restrict a term to its stated definition.33 "Includes" is used when a definition doesn't limit a term.34
Citing Cases for Maximum Impact
Citations are the legal precedents that support your argument. Professor Younger outlined six ground rules for effective and authoritative citations:
• Cite sparingly.35 Citations are necessary but needn't be redundant.
• An important case should be both cited and analyzed.36 Your explanation assures that a judge will understand the case as you see it. 37
• Avoid string citations.38 Cite only the best case - the most recent case on point from the highest binding court. Cite more than one case only if doing so helps a reader, not to prove your research skills.
• Cite cases from an appropriate court.39 Judges must pay attention to binding precedent. They needn't pay attention to persuasive precedent.
• Don't use long quotations.40 Summarize important points and hope that the judge will read the original opinion if the citation is critical to your case.
• Be candid about the citation on which you rely.41 Analogize and distinguish your citations.42 Never mislead a court.
What should you do if no case supports your argument? Professor Younger suggested relying on "good sense, fairness, and decency."43 On this occasion, you might find that your strongest citation is none at all.
". . . And Write in English, Please!"
Effective legal writing calls for more than placing English on a page. Professor Younger cited one example of ineffective writing from the Ninth Circuit. The defendants' brief described the "juxtaposition of the real world environmental encasement of the two sides."44 In response, the Ninth Circuit commented that "[b]riefs should be written in the English language!"45 To avoid a rebuke from the court, Professor Younger offered two ways to avoid incoherent sentences:
• Rather than immediately typing out the first thoughts that come to you, identify the exact words that convey what you intend to argue.46 Saying your thoughts aloud will help you in this exercise. Clarity of thought precedes clarity in writing.
• Use simple and plain words.47 You might struggle to identify the best words to describe your thoughts. Readers shouldn't.
Ready, Set . . . Wait!
Rewriting isn't a cure for "premature penmanship."48 Don't just disgorge your thoughts randomly onto the page. Professor Younger proposed that writers follow five steps to set the stage for persuasive writing. He gave his advice in the context of drafting appellate briefs, but his methods apply universally to other pieces of persuasive writing:
• Read and reread the record until you've mastered the details.49 During this process, prepare an index and chronology of events.
• Find a secondary source that explains an area of law.50 At this stage, look at the big picture rather than the details.
• Think about your case.51 Consider your audience - whether a judge, client, or opposing counsel - to identify what your audience will find most interesting about your case.
• Review the facts to ensure that the record reflects the issues you present for resolution.52
• Phrase the issues to engage the court's interest and help your client's case.53
• Once these five steps are complete, you're ready to put pen to paper, or fingers to keyboard.
Spell It Out
A premise is the proposition on which a conclusion is based. For example, if Sally is a lawyer, and lawyers can give legal advice, the logical conclusion is that Sally can give legal advice. Every aspiring lawyer studying for the Law School Admission Test's logical-reasoning portion learns about the premise and conclusion. But not every lawyer will remember to use basic logical reasoning when forming legal arguments. If clearly stated logical reasoning is absent from your writing, fallacies and erroneous assumptions will undermine your argument. Professor Younger explained that you shouldn't state a conclusion without setting forth "step by step"54 the thinking that led to it:
• Spell out each premise so that it forms a path to your desired conclusion.55
• Spell out every assumption when you use an analogy.56 To craft the strongest analogy, demonstrate that A is the same as B, and not merely like B.57
Legal Writing All-Stars
Reviewing strong legal writing can help to improve your own writing. Professor Younger selected from throughout the legal profession writers worth reading. His selection dates back 30 years:
• Of practitioners, there's New York's Joseph M. Proskauer58 and Boston's Charles P. Curtis, Jr.59
• In academia, there's John H. Wigmore60 and William L. Prosser.61
• From state courts, there's California's Roger J. Traynor62 and New York's William S. Andrews.63
• The "lower federal courts" have John M. Woolsey, Henry J. Friendly, and Learned Hand.64
• At the Supreme Court are Charles Evans Hughes65 and Robert H. Jackson.66
You might identify other excellent legal writers in the years since Professor Younger's columns were published.
In addition to Professor Younger's advice, good legal writing requires practice. In the Journal's next issue, this column continues with Professor Younger's insights on style and legal writing.