On Writing

In the February 2013 Edition of "Arizona Attorney," the official journal of the State Bar of Arizona, there is an excellent article titled "Writing Maketh an Exact Man" written by Attorney Robert J. McWhirter.  Here are excerpts which I found particular good--

Preparation before writing is important--

If I had eight hours to chop down a tree, I'd spend six hours sharpening my ax. -- Abraham Lincoln.

The purpose of the brief--

The secret ambition of every brief should be to spare the judge the necessity of engaging in any work, mental or physical. -- Mortimer Levitan

Brevity and clarity are essential in a well-written legal brief--

A judge who realizes that a brief is wordy will skim it; one who finds a brief terse and concise will read every word. -- U.S. Supreme Court Justice Scalia and Bryan Garner

Write well--

Be clear, so the audience understands what is being said.
Be interesting, so the audience will want to listen to what is being said.
Be persuasive, so the audience will agree with what is being said.  -- Cicero

The issue--

You need to give the court a reason you should win that the judge could explain in a sentence or two to a non-lawyer friend.  U.S. Supreme Court Justice Scalia and Bryan Garner

The conclusion--

The conclusion in a brief is not just the major thing.  It's the only thing.  -- Judge Ruggero J. Aldisert. 

Law Book

In 1981 or so West Publishing Company (then the world's largest law book publisher) offered me a contract to write a volume on criminal law practice and procedure for use by Washington attorneys. I accepted and started to work, thinking the project would take about 90 days. It took over three years to write the manuscript, which I did while practicing law full-time during the day. The work was published in 1984. It has been cited as authority by both the Washington State Court of Appeals and Washington State Supreme Court.


To get the manuscript finished, I also hired a smart young lawyer named Jeff Gross, who helped quite a bit doing research. West also held the copyright on a lot of criminal law books from other states, so I had access to that material, too. I had been collecting a lot of legal forms from actual cases, which I wanted to include in the manuscript. Midge Wolff helped re-type the legal forms, and Della Wasson typed the manuscript. (Della also typed the manuscript for the 2nd and 3rd editions).


The manuscript resulted in volumes 12 and 13 of the Washington Practice Series. There are several thousand footnotes referring to Washington statutes, Washington cases, United States Supreme Court decisions and other laws and cases. The law is constantly changing through new and amended laws and old case decisions being followed, modified, distinguished or overruled in newer cases.

I now have an arrangement with the publisher to update the volumes each year. The updates are published as supplements to the bound volumes and are inserted into the back cover of the books.

Each year I am to read and summarize the newly enacted state statutes and amendments passed by the state legislature, as well as the Washington State Court of Appeals decisions (contained in the green "advance sheets"), Washington State Supreme Court decisions (contained in the yellow advance sheets), together with the United States Supreme Court decisions for the current session. "Advance sheets" are pamphlets containing the court decisions, available before the same decisions are compiled into bound books.

It's tedious, time-consuming, solitary work, but it's also satisfying-- sort of like taking your kid to get a new haircut and some school clothes before the beginning of a new school year. There is pride invested in the project. Plus, you want it to be accurate and true, as others will be relying upon it. It takes about 80 to 100 hours to do all the reading, summarizing and organizing. A 10-page court decision has to be summarized into a single sentence or phrase to be useful as a foot note. For example, a complex court decision might be summarized like this-- State v. Rathbun, 124 Wn.App. 372, 101 P.3d 119 (2004) (driver jumped out of vehicle and over fence and was 60 feet away from truck when arrested; search of truck was not incident to arrest).