Legal Writing

How to Write an Introduction (or How Not to)

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This is somewhat nerdy—okay, very nerdy—but good introductions and conclusions are uncommon in legal writing, so I thought this was worth mentioning. When it was filed on April 20, the opinion in People v. McEntire started out like this:


Defendants Daniel Raymond McEntire and Manuel Martinez Rodriguez were jointly tried and convicted by a jury of the following offenses: first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a), count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1), counts 2 and 3), unlawful possession of ammunition (§ 30305, subd. (a), counts 4 and 5), carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(3), counts 6 and 7), and active participation in a criminal street gang (§ 186.22, subd. (a), count 8). In addition, Rodriguez was convicted of resisting a peace officer, a misdemeanor (§ 148, subd. (a)(1), count 9).

The jury found true a gang enhancement on counts 1 through 7 as to both defendants (§ 186.22, subd. (b)(1)). Rodriguez also admitted a prior prison term (§ 667.5, subd. (b)). Rodriguez was sentenced to an aggregate term of 16 years 8 months in state prison and McEntire was sentenced to 15 years 8 months.

Defendants jointly make the following claims on appeal: (1) insufficient evidence supports the substantive gang charge (count 8); (2) insufficient evidence supports the gang enhancements on counts 1 through 7; (3) insufficient evidence supports the jury’s finding a nonparticipant was present during the commission of the burglary; (4) the trial court erred in instructing the jury regarding the presence of a nonparticipant during the burglary; (5) the trial court erred in failing to define “present during the commission of a burglary” sua sponte; (6) the trial court erred in failing to define “in association with a criminal street gang” sua sponte; (7) the trial court erred in denying defendants’ motion to bifurcate the gang enhancement allegations; and, (8) defendants’ sentences for unlawful possession of ammunition (counts 4 and 5) must be stayed pursuant to section 654. We agree with defendants’ claim counts 4 and 5 must be stayed. In all other respects, the judgment is affirmed.

Here’s my question: At this point, three full paragraphs and one full page into this document, do you have any clue what the court decided, or even what the case is really about?

You do not.

Someone at the court noticed this, and on May 17 the court issued this order:

It is ordered that the opinion filed herein on April 20, 2016, be modified as follows:

1. On page 2, after the heading Introduction, insert the following paragraph:

A resident is home alone lying on her couch. Her dog barks. The resident looks out to her backyard and sees a male intruder there. The intruder approaches the home and tries to open the sliding glass door, which is beyond the door’s screen. The resident picks up her dog and her wireless phone. She dials 911. Shortly after fleeing her home to the front yard, she hears glass shatter. Does sufficient evidence support the finding the resident was present during the commission of the burglary? We conclude it does, even though the screen was partially open, because the intruder penetrated the space beyond the screen in attempting to open the sliding glass door while the resident was still inside her home.

Wait, what? “Her dog barks”? “She dials 911”? What kind of lawyer writes a sentence with only three words in it?

Seriously, let us compare these two introductions, because the writer of the second one deserves a medal, or a merit badge or a drink or something.

The first one had three paragraphs, eight sentences, and 318 words, an average of 39.75 words per sentence. Microsoft Word says that 20% of the sentences are “passive” sentences, gives it a readability score of 47.1 (I think out of 100), and pegs it at a 10th-grade reading level.

The second one has one paragraph, nine sentences, and 122 words (13.5/sentence); it has zero passive sentences, readability of 66.8, and has dropped three entire grade levels (which, in this context, is a good thing). That might be understating the difference a bit, because Word actually was unable to count the sentences in the first one correctly, maybe because of the periods in citations and maybe because it got a splitting headache from trying to read that thing.

What happened?

The first version is the kind of thing new lawyers tend to write: it lays out every single one of the charges, all the results at trial, and every single one of the arguments on appeal, with citations stuck into the middle of everything for some inexplicable reason. You might need stuff like that somewhere in the opinion, but this is supposed to be an introduction. Introductions summarize things. This did not.

Now consider the second one. (Technically it didn’t replace the first one entirely, but as a practical matter it did because no one will ever read that one again.) There is—gasp—not a single citation. In fact, it doesn’t refer at all to most of the things listed in the first version, maybe because they weren’t important issues on appeal and so we DO NOT CARE VERY MUCH. And it doesn’t give any names at all, let alone the defendants’ full legal names. HOW CAN I KEEP READING UNLESS I KNOW THE DEFENDANTS’ MIDDLE NAMES?

In other words, the second one is so much better because the writer thought about what wasn’t important and left it out. The first one made the reader try to figure out what was important, which is irritating to begin with and becomes a lot more so when you learn, as you did, that figuring it out is impossible. The second introduction’s writer also knows the importance of active voice, using shorter words and sentences, and so forth. And he or she has conveyed much more useful information using less than half the space. Isn’t that a little freaky?

The fact that I’m a little freaked out by a good introduction tells you something about most legal writing, probably.