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Home / Expert Testimony / Legal Writing Notebook: Legal writing tips from Robert Mueller

Legal Writing Notebook: Legal writing tips from Robert Mueller

Karen Ciano

Karen Ciano

On a recent family vacation I kicked back on a sunny beach with a frosty beverage and a copy of a federal indictment.  I’ve always loved Cold War spy fiction, and enjoy reading primary sources, so I expected that the District of Columbia indictment against a dozen Russians charged with interfering in the 2016 United States presidential election would be a satisfying read.

I was also curious to see how the government’s legal team would handle familiar writing challenges.  Could they keep the sizzling-hot international political intrigue from getting bogged down in the weeds of obscure computer-science tedium? Could their writing be understood by all readers at all levels of language proficiency, education, and attention—including readers unfamiliar with, even hostile to, the facts and allegations?  Could they keep my eyes from glazing over?

United States v. Netyksho et al. did not disappoint.  Before reading, I knew very little about the facts, nothing about most of the applicable laws, and less than nothing about cyber-whatever. After, I could hold my own at the evening’s barbecue with even the most outspoken, well-read and computer-savvy members of my extended family. (Thank you, Special Counsel!)

Let’s break it down. Assume you must communicate complex information that a lot of people are not going to want to hear in a way that makes it clear you’re not screwing around—for example, when you have to draft a pleading. How do you enhance attention, understanding, retention, and credibility?

Define terms early, clearly, simply, and respectfully

The Netyksho indictment is a master class in defining terms.  As lawyers we face a constant internal battle between our inner angels (“let’s keep it short and simple”) and our anxious devils (“but what if I fail to repeat the exact same phrase every time and I somehow end up losing my case”).  The solution to this problem, as we all know, is to define our terms.  We can create a glossary or table of definitions (common in contracts and statutes, disfavored elsewhere), or define as we go.

The indictment defines as it goes, and does so elegantly.  Here’s the first sentence of Count One:

In or around 2016, the Russian Federation (“Russia”) operated a military intelligence agency called the Main Intelligence Directorate of the General Staff (“GRU”).

Meet the two main players: over the next 29 pages we’re going to hear a lot about Russia and the GRU.  Note the simple definitions—one word each, easily pronounced.  Note the lean parenthetical structure—no “hereinafter” or “hereinafter defined as” or “for convenience will be referred to hereafter as.”  Finally, note the choice of the acronym “GRU.”  While the letters bear no obvious relation to the words “Main Intelligence Directorate of the General Staff,” GRU derives from the entity’s title in Russian, and is in fact a well-recognized acronym in political and intelligence circles. It even has a Wikipedia entry. Mueller’s team could have created a new English acronym or new word to describe the entity, but instead chose a word familiar to the international community.  I’m no fan of acronyms, except when they’re well-established words in their own right.  Here, GRU is—and so I forgive it.

Another good option is to explain in the text rather than define.  Like this:

  • Some of the Defendants “targeted victims using a technique known as spearphishing to steal victim’s passwords or otherwise gain access to their computers.”
  • A Defendant used “an online service that abbreviated lengthy website addresses (referred to as a ‘URL-shortening device.’)
  • A Defendant “altered the appearance of the sender email address in order to make it look like the email was a security notification from Google (a technique known as ‘spoofing’), instructing the user to change his password by clicking the embedded link.”

 

Whenever you need to define, ‘twere well it were done quickly—give enough to keep the reader reading, and move on.

Old information before new

Here’s the entire first paragraph of Count One:

In or around 2016, the Russian Federation (“Russia”) operated a military intelligence agency called the Main Intelligence Directorate of the General Staff (“GRU”).  The GRU had multiple units, including Units 26165 and 74455, engaged in cyber operations that involved the staged releases of documents stolen through computer intrusions.  These units conducted large-scale cyber operations to interfere with the 2016 U.S. presidential election.

First we meet the GRU.  Next we meet the GRU’s units.  In the third sentence, we hear what these units did.  Three sentences, each starting with a bit of information from the sentence before, providing a preview of coming attractions.

This technique not only helps the reader understand and retain information, but also creates a framework into which new information can be placed.  For example, after reading the first paragraph, you might think, “okay, so what has this got to do with the Defendants?”  Sure enough, the next paragraph introduces all Defendants by name (including in Cyrillic characters in case there’s doubt about translation), identifies them as “GRU officers,” collectively defines them as “Conspirators,” and charges them with a conspiracy:

to gain unauthorized access (to “hack”) into the computers of U.S. persons and entities involved in the U.S. presidential election, steal documents from those computers, and stage releases of the stolen documents to interfere with the 2016 U.S. presidential election.

(Notice the plain English—no one needs a degree in computer science to figure out what’s being alleged.)  Will the indictment tell us whose computers were hacked, what documents were stolen, and when they were released?  You bet it will.

Dare to break tradition.

Indictments, like other pleadings, tend to have ruffles and fidgets handed down from the time of wax seals on parchment.  Paragraphs often begin repetitively with “Defendant A” or “On or about Date B.”  And don’t even get me started about incorporating the preceding paragraphs by reference as if fully set forth herein.

But a traditional format is no excuse to use fusty vocabulary and sentence structure.  The indictment uses words like email, hack, spearphish, malware, open-source, keylog, screenshot, and so on.  So should we.

Prefer active voice over passive voice.

Indictments are all about who did what to whom, so tend to be refreshingly direct in their use of the active voice.  This one is no exception: nothing just happens. Read it aloud to remind yourself what the active voice sounds like. If you find a sentence that uses the passive voice, I will buy you a coffee.

Whatever you think of the Special Counsel’s investigation, the Netyksho indictment is a nice bit of legal writing.

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