PALSGRAF AND IMPROVING YOUR LEGAL WRITING.

In a book I edited, entitled The Appellate Prosecutor: APractical and Inspirational Guide to Appellate Advocacy, the Honorable Paul Turner, who when the book was published was Presiding Justice of the California Court of Appeals Second Appellate District of Los Angeles, California, contributed a chapter. Judge Turner’s chapter focuses on the art of writing, specifically on crafting the short declarative sentence, which he referred to as “The Key to Good Legal Writing.”

Here is an excerpt from Judge Turner’s chapter:

The most important way to improve your legal writing is to develop the skill of writing the short declarative sentence. Some people do not need to use short declarative sentences. In 1995, the Houston Chronicle reported that Alan Greenspan, the Chair of the Federal Reserve Board, said, “I spend a substantial amount of my time endeavoring to fend off questions and worry terribly that I might end up being too clear.” In 1992, the Wall Street Journal reported that one wag suggested that Alan Greenspan’s tombstone should read, “I am guardedly optimistic about the next world but remain cognizant of the downside risk.”

But as an appellate advocate, your job is to be clear; not to be uncertain like Mr. Greenspan. Your task is to develop the skill of writing the short declarative sentence so that words march promptly in proper order towards a logical conclusion. That statement of your mission warrants repeating. Your task is to develop the skill of writing the short declarative sentence so that words march promptly in proper order towards a logical conclusion.

Here is an example of this important way of communicating, and it is from the famous case of Palsgraf v. Long Island Railroad Company 248 N.Y.339, 340–341 (1928). It is the first paragraph of Chief Judge Benjamin Cardozo’s famous opinion. In law school, professors use the Palsgraf opinion to discuss proximate cause and negligence. More importantly, it is the example of great legal writing utilizing the short declarative sentence as a way to communicate. Here, with minor bracketed interruptions, is the first paragraph of Palsgraf:

“Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. [Stop reading now. How many words were the in the first sentence? 18. Now keep reading.] A train stopped at the station, bound for another place. Two men ran forward to catch it. [Stop reading again—how many words in this sentence that describes the hurried conduct of two different human beings in relation to a train leaving a station? Seven words—that is all; now start reading again.] One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.”

The longest sentence in this first paragraph of Palsgraf is 27 words, the one that begins, “A guard on the car...” That sentence consists of a series of short phrases strung together. Look at them: “A guard on the car, [5 words and a comma] who had held the door open, [6 words and a comma] reached forward to help him in, [another 6 words and a comma] and another guard on the platform pushed him from behind” [10 words and a period].

The most important thing about this whole passage is a reader knows exactly, yes, exactly what happened. This accident happened on August 24, 1924, at the East New York Station in Brooklyn and everybody who reads the first paragraph of Palsgraf knows what happened 80 years later. That is communication, that is the power of the written word.

For the remainder of Judge Turner’s chapter and more on effective appellate advocacy, consider acquiring The Appellate Prosecutor: A Practical and Inspirational Guide toAppellate Advocacy. And by the way, it’s not just for prosecutors who are appellate advocates.