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Bryan Garner on Words

How using checklists can improve your writing

By Bryan A. Garner

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Illustration by Sam Ward

Have you ever noticed that you tend to make mistakes when you depart from a routine? You have a normal way of doing things, but then something unforeseen happens and you change your routine slightly.


Let’s say you always carry your phone charger in the middle pocket of your briefcase. But in hastily packing up after a meeting on the way to the airport, while two of your colleagues are congratulating you on a successful presentation and saying their goodbyes, you just drop it in the already-open left pocket. The next morning, you need your charger, you can’t find it in the middle pocket, you fret about having lost it, and you end up buying another. A week later you see it in that left pocket.

It’s a trivial example—not unlike dozens of simple examples that Sigmund Freud wrote about in his fascinating little book The Psychopathology of Everyday Life. In any event, your collection of phone chargers is becoming quite impressive because of such minor distractions.

Humans go through some routines that are much more complicated than keeping a phone charger in its place. Think of the golf swing. Every really good golfer has what is called a “pre-shot routine”: a series of movements behind and around the ball, a way of taking the stance to execute the shot, the waggling of the clubhead above the ball a certain number of times before resting the clubface just behind the ball and then executing the shot. With professionals, it’s done the same way every single time. When it’s interrupted in some way, or the player departs from it, mistakes are likely to occur.

But people often go through much more complicated series of actions. That’s where checklists are invaluable: They’re informational job aids that reduce mistakes by compensating for the limits of human attention and memory. Pilots are required to use them to counteract the possibility of human error. Surgeons use them to ensure that every step is properly executed in the correct order.

Lawyers use them in litigation and in various aspects of their work, but not so much in writing. Let’s take the example of preparing a brief. You have a deadline for filing. Some will say, “Let’s get it done!” and start writing about the arguments they know (or think they know). That ends up wasting a lot of time. There will be much rewriting needed. But when filing time comes, it’s more or less ready to go—after plentiful but rather haphazard massaging.

I suggest a more systematic way of going about it: creating a checklist in reverse chronological order. You must work back from the filing date. It might look like what follows. This is a pull-out-the-stops brief from a large or moderate-size law firm. The schedule takes no account of weekends or holidays. Of course, it’s adjustable to your needs—and according to the resources at your disposal. But this is the kind of process I follow in my most important briefing projects.

 

SEPT. 25

  • Electronic deadline at 7 p.m. (a self-imposed deadline—it’s really midnight).
  • Proofread for error correction only.
  • Verify correctness of formatting (no headings at bottom of page, etc.).
  • Spot-check hyperlinks.

SEPT. 24

  • Hyperlink citations to the record.
  • Hyperlink citations to the cases.
  • Fact-check all case citations.
  • Fact-check all quotations word for word, character for character.
  • Prepare table of authorities.

SEPT. 23

  • Serial editing by three crackerjack editors who have never seen the brief (one reader at a time in the morning, noon and late afternoon). Their goals are to (1) correct any errors, (2) tighten wordings, (3) sharpen vague assertions and (4) brighten the wordings to make the prose less dull.
  • Paralegal must verify that all edits have been properly entered.
  • Lead brief-writer must approve which edits go into the master version.

SEPT. 22

  • Two read-throughs by each team member with whatever edits, additions or subtractions seem desirable: one set of edits to be handed over at 3 p.m.
  • Verify that all necessary arguments have been properly addressed.
  • Verify that all factual matters have been pinned to the record as closely as possible. The person who verifies the statement of facts must be someone other than the second-chair lawyer who wrote it. Every sentence in the statement of facts must be tied to the record with a citation. Any argument must be stripped out of this section.
  • Ensure that the issue statements match up nicely with the point headings—and that their order corresponds. Double-check the word count to make sure that no single multisentence issue exceeds 75 words.

SEPT. 21

  • A senior team member who attended yesterday’s focus group continues rewriting the brief in light of what happened there.

SEPT. 20

  • Focus group: Five smart lawyers from outside the firm spend two hours adjudicating the case in a controlled environment. Ultimately, they vote as if they were judges, giving short, written reasons for the outcome. They mustn’t know which side of the case you’re on. They’ve done a conflicts check and understand that the entire exercise is confidential. In light of what happens here, a senior team member rewrites the brief this evening and Sept. 21 to overcome whatever problems your five-member panel had with your side.

SEPT. 19

  • Ensure that the brief is in apple-pie form: all record citations filled in, all case citations verified, everything proofed to make the brief read well. This is the point at which many people would be ready to file the brief. But it can still be greatly improved.

SEPT. 18

  • The lead lawyer assembles the brief by beginning with the point headings and choosing the text that supports and develops them. He or she designates which parts are to go under what point headings and in what order. For each point heading, the lead lawyer has two versions to select from and will probably use elements of both versions to create a much better version than either of the two that have been submitted.
  • Delete and replace the following stereotypical words and phrases to make the brief sound less generic. For However, use a case-sensitive search:
    • absent (in its legalistic adverbial use)
    • accordingly
    • consequently
    • in the event that
    • However
    • moreover
    • prior to
    • pursuant to
    • subsequent
    • thus
  • The second-chair lawyer writes the statement of facts with the instruction to avoid all argument, conclusory assertions, and characterizations.

SEPT. 17-16

  • Have team members write the brief as quickly as possible while free from all distractions. All handheld devices and computer prompts are turned off.
  • It’s possible to have the argument under each point heading written by two team members who aren’t allowed to collaborate or compare notes. They must work independently. On Sept. 17, their work is presented to the lead lawyer.
  • The lead lawyer coolly writes the introduction and the conclusion—each one distinctive, and each one absolutely free of disparagement and sarcasm but showing a little literary flair.

SEPT. 16

  • Prepare a table of contents for the argument section, showing the point headings (complete sentences of 15 to 35 words).
  • Ensure that each stage of the argument progresses from major premise (law) to minor premise (facts), followed by refutation of counterarguments. The dialectic engagement with opposing views is important at each stage.
  • Prepare multisentence (“deep”) issue statements of up to 75 words apiece. Arrange the sentences syllogistically. They must be self-explanatory and fully comprehensible on a single reading to someone not involved in the case.
  • These two steps can be done in a conference room at a whiteboard. All participants work in silence at first (for up to 15 minutes at a stretch) and then together.

SEPT. 15–14

  • Write case briefs for the five most important precedents that bear on your argument. Meanwhile, keep researching.

SEPT. 13–9

  • Read and reread the record. Reflect. Brainstorm. Take notes on the record, categorizing record citations according to the points you want to make.
  • Research the law with tenacity and ingenuity. Try to “get” the arguments.

EARLY SEPTEMBER

  • You’re retained to work on an appellate brief, which will be due Sept. 25.
  • Discuss the matter in great detail with the trial lawyers. Come to an understanding of why they think they should win on appeal.

 

So that’s one version of my checklist for a big case. You can easily scale it down.

Why think about the chronology in reverse? That’s the only way you’ll allow sufficient time for each stage.

One thing you might be curious about is why the statement of facts gets written only after the argument. Some lawyers would write it first. The danger there is that you will include material that doesn’t in some way illuminate the issues to be decided. You must rigorously exclude tangents and anything else that doesn’t contribute to the argument. One way to improve on that score is to write the statement of facts last. This method will also help you avoid arguing there. Even though all appellate rules say don’t argue in your statement of facts, lawyers routinely do it—to their clients’ disadvantage.

As you know, brief-writing involves many moving parts. Having a checklist will ensure that you and your team are at your best.

This article originally appeared in the September 2016 issue of the ABA Journal with this headline: “Matter of Routine: How using checklists can improve your writing.”

Bryan A. Garner, the president of LawProse Inc., is the author most recently of Garner’s Modern English Usage, The Chicago Guide to Grammar, Usage, and Punctuation and Guidelines for Drafting and Editing Legislation. Follow him on Twitter @BryanAGarner.

Related topics:

Legal Writing | Bryan Garner on Words | The Practice

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