Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 34

by Anthony Renzo, Esq.

Don’t Forget to Listen to
What Your Writing Is Telling You
Lawyers often think of legal writing only
in terms of the end product, the final draft
that gets filed with the court, or sent to the
client or opposing counsel. While it is undoubtedly true that the quality of the documents produced is important, the legal
writing process can and should mean something more to lawyers striving to create
a winning argument for their clients. The
best lawyers do their own writing and use
the legal writing process itself, from scribbled beginnings through the final draft, as
their most trusted co-counsel, that friend
who will never lie to you and will force you
to dig deeper to create and master the law
of your case. Good lawyers know to listen
to what your writing is telling you.1
Lawyers are often asked to resolve legal
issues that are complex and require study
and in-depth research. In these cases, the
analytical “point of clash” is not immediately apparent, even to experienced advocates who specialize. The successful practitioner must work hard to develop a precise
legal rule supported by authority that will
survive the scrutiny of opponents and demanding judges. How best to do that? Let
the writing process lead the way!2
How often have you convinced yourself that you have mastered a legal issue
only to discover when you first write about
it that your understanding is incomplete,
piecemeal, even incoherent? Instead of being frustrated by the writing process and
assigning the writing to a law clerk or an
associate, do your own writing and use it
as a wake-up call. At some point your writing struggle sets off an alarm that forces
you to come to terms with the fact that you
understand your case only on a superficial
level.3 Failure to use the writing process to
get to the bottom of your case often spells
the difference between winning and losing.
A simple dog bite case brings the point
home.
You represent Tiffany Jackson, a young
woman whose three year-old daughter,
Tracy, was badly bitten on the face by a
dog, Hank. Winifred Abel kept Hank in her
fenced back yard. Hank’s legal (licensed)
owner was Abel’s sister, who, with Abel’s
permission, has kept Hank in Abel’s back
yard for more than two years. Abel’s fenced
back yard extended to the back yard of a
house next door that Abel owned and rented out. This meant the two houses shared
a back yard with a common fence. A month
before, Jackson and her daughter had rent34

ed the next door house from Abel. At the
time the Jacksons moved in, Abel warned
Jackson that Hank was dangerous around
children.
Although the state where the dog bite
occurred has a strict liability dog bite statute that applies to dog owners, you assume it does not apply to Abel because
she does not own Hank. Since Abel’s sister,
who owns title to Hank, is judgment-proof,
you decide to sue Abel on a premises liability theory that requires you to prove Abel
was negligent. You delegate the research
and writing of the complaint, as well as the
defense of trial motions (e.g., for summary
judgment) to a bright law clerk who prepares the requisite pleadings and briefs as
the case proceeds.
When it comes time to argue the summary judgment motion, the first question from
the court is whether you are conceding that
the state’s strict liability statute does not
apply. You concede, since Abel’s sister, not
Abel, has title to Hank. The court then rules
against your client on the premises liability
claim. The motion is granted and the case
dismissed. Following the argument you are
very upset, and begin to think about an appeal. You decide to write the appeal brief
yourself and the writing process begins to
tell you that you may have had an argument that “ownership” for purposes of the
strict liability statute extends to those who
harbor dogs even if they do not own legal
title to the dog. Of course, you have conceded that point in the trial court and it’s
too late to raise it for the first time on appeal.
It now dawns on you that you lost a case
you might have won because you were not
engaged in the writing process from the
beginning of the case.
Avoiding the legal writing process from
the outset of a case becomes an obstacle
to good lawyering for many lawyers, who
prefer to assign the writing to someone
else instead of facin