[Editor’s Note:  This month faculty members share their favorite brief writing or oral argument tip.  This is the third entry in the series.] 

Maybe it’s like your first kiss, or maybe I’m unusual this way, but I think I will always remember my first brief.  I was a new associate working with two partners on the defense of a federal securities lawsuit.  The litigation was just a minor skirmish in a larger war: the plaintiff was attempting a hostile takeover of our client, and the litigation was intended to bring some more pressure to bear on our recalcitrant board of directors. Could we do anything to relieve that pressure?

The senior partner asked me to research an obscure provision of securities law that he felt might provide a basis for a motion to dismiss under Rule 12(b)(6).  I prepared a memo that carefully assessed the strengths and weaknesses of his theory, ultimately concluding that it was viable.  “Great memo,” he responded, “now rewrite your analysis as a brief in support of a motion to dismiss.”

A few years ago, my student Nick Martinez recommended Stephen King’s book On Writing to our legal writing class. I read the book cover to cover in almost one sitting, and since then I have read passages out loud to anyone who will listen. Nick and I discuss here what we learned about writing from the master of horror. 

NM: Stephen King wrote On Writing as a tool for budding writers to use in their exploits in constructing fiction, but the book’s wisdom translates to all forms of writing. I first read this book for fun, hoping just a little that it would also bolster my creative talents.

It wasn’t until I was fully immersed in the world of legal writing that I discovered myself using the very same fiction writing tricks set forth by King. King takes time to describe the most common and fundamental ingredients in all types of writing, such as proper word choice and sentence structure. By mixing in the anecdotal flavor of his own life, King succeeds in conveying these techniques in a clear and practical manner rarely seen in writing guides. King shares an entire “toolbox” of useful tricks.

Students in the first-year legal writing courses are right now handing in their first full length memos. Learning this new memo writing skill is usually a moment of some anxiety for students, as the analysis, form, and structure of a legal memo is quite different from other types of writing.

The most important word in the previous paragraph is the word skill. Legal writing is a skill, and as a skill, it can be developed through hours of deep practice, according to The Talent Code by Daniel Coyle.

The Talent Code starts with the question of how and why some environments, whether they are formal coaching programs or even informal family dynamics, produce people with exceptional skill sets.