By Jane Wesley Brooks
All too often, while sitting in Court I hear the Judge ask the current attorney arguing their case, “What do you want? What are you requesting the Court order?” Clearly, the attorney who is arguing before the Court and who painstakingly drafted their client’s pleadings, is stunned and dumbfounded as to why the Court is confused because he or she thinks their client’s position is crystal clear from the pleadings, if not from the brilliant argument now being presented orally in support of those same pleadings. So where is the disconnect?
This article is intended to give some simple writing tips to make the method for writing declarations and legal correspondence more clear and concise for the reader, whether the Court or counsel is the intended recipient.
Declarations/Affidavits
Declarations or affidavits to the Court are difficult to write as an attorney because you are essentially telling another’s story to the Court, which can be fraught with your client’s emotional spin. Clients will frequently conflate their facts within their recitation to you of events. You need to sort it out in a simple and clear way for the Court.
The first section of a declaration or affidavit is the Procedural facts or Background facts. This is intended for the Court or reader to easily and quickly understand what has happened to date in the matter. Give a simple timeline in your Procedural or Background facts. Give a chronology of only procedural events and orders such that upon reading it the Court has a complete understanding of the case from its inception. It is very helpful to start each sentence or paragraph with a bold date followed by the procedural event and subsequent order, if applicable. Give all events and orders up to the date of filing. Do not argue in this section. Way too often I see attorneys inserting argument in this section, which defeats the purpose of providing a concise and objective understanding of the matter.
Next, decide on your headings and subheadings and insert them into your draft with different formatting. For example, you might make your headings bold, capitalized and underlined, and sub-headings sentence case and italicized. Doing so alerts the reader to what you are wanting to discuss next and what sub-categories there are to consider in support of your client’s request. The first sentence of the first paragraph under every heading should only specify the client request related to that heading. As an example, if I were writing a declaration related to my client wanting to appoint an Evidence Code Section 730 expert, my heading would be “Appointment of Evidence Code Section 730 Expert” and my first sentence underneath would state in a direct and simple manner “I request the appointment of a forensic accountant under Evidence Code Section 730 for the purpose of valuing the corporation currently in dispute, XYZ Corporation.” Your next paragraph would then begin making your first argument in support of your request, and each paragraph thereafter being arguments or statements with supporting documentation by exhibits to the initial request. This same format should follow with sub-headings.
Finally, it is very helpful to the Court or reader to provide a summary of your requests. Many judges have noted to me how helpful my client’s declaration summary is to them after reading the entire declaration. My summary has a separate format in that the heading “Summary” is centered followed by left registered bullet points with italicized bold font. All the first sentence requests for each paragraph with the most potent arguments in support are summarized at the end of the declaration. The summary requests are very synthesized. The bold font format and style help to remind and concisely identify to the Court what orders are being requested and why.
One other tip to make all your writing clean is to avoid using the word “that.” It is grossly overused and if you eliminate “that” from all sentences it is not required, you will be astonished at how clean your sentence reads. It is so easy to do a “find” search on the word “that,” read the sentence without “that” and, if it is unnecessary, delete it. Eventually, you will become painfully aware every time you type in the word “that” and check the necessity of the word as you draft.
Last Tip
When drafting correspondence, try to start each letter with the purpose of the letter. All too often, it is hard to discern why an attorney is writing you on a case until you are halfway through their letter. Learn to be blunt in your letters to counsel. If you tell the reader the purpose for the letter in the first paragraph, complete your purpose very directly in the body, complete with headings and sub-headings, then ask for a timely response, preferably a specific date and time in bold font, you should be understood with great clarity and appreciated for your bluntness.
GOOD LUCK!
Jane Wesley Brooks is owner and family law attorney with JWB Family Law.