Legal drafting is chaos, and the text editors of today are ill-equipped to handle that chaos. To illustrate the point, imagine that you are working on a brief that is going to be filed in federal court, and your brief contains the following passage:
People have an expectation of privacy in their homes. Katz v. United States, 389 U.S. 347 (1967). Law enforcement officers must obtain a warrant based on probable cause before conducting most searches. Id.
This is the standard layout for legal prose and should be familiar to most litigators (or at least, this is I how I learned it). You state a proposition and then you cite to a source that supports that proposition. Rinse and repeat until you have a compelling argument.
The citations are formatted according to the rules outlined in the Bluebook—an authority on legal citation and the one most often used in U.S. federal court—and one of those rules is that you must cite a source in full first before citing it using its short form, id. You can see above that the relevant case (Katz v. United States) is cited using its full form the first time, and then it is cited in short form the second time around. Notice what happens when you delete the first citation in Microsoft Word:
Nothing at all. Word knows what your document looks like but not what it means, so if you rearrange it in this way, it will not complain. Unfortunately, the brief is now incomplete because the remaining citation is id., which essentially directs the reader to look at the previous citation, but there is nothing there.
Hopefully you caught that before submitting the brief. If not, you just lost credibility with the judge, which does not bode well for your case (replace “judge” and “case” with “partner” and “career” if you are an associate). Indeed, one of the lawyers we spoke to said that she would write out the full form of a citation every time she cited a source during drafting and then go back during the final pass to introduce short forms, just to avoid this issue.
I was on the path of pain apparently, because no one taught me that trick when I was practicing as a litigator. Instead, I used short forms right out of the gate and invariably ended up jumping up and down the brief trying to keep citations in sync as I was writing. It was painstaking, error-prone, and exhausting, and by the end of the exercise, I could tell that I had spent less brain cells on the actual argument and more on ceremony.
Now take a look at how Rhetoric handles this situation:
Et voila! The editor detects that the first citation is no longer present and updates the second citation to use the full form. In essence, you tell the editor where the citations are, and it takes on the hard work of keeping them in sync.
This is what it boils down to: traditional text editors start from chaos. They operate on characters and words, not arguments and citations, so when you rearrange the former, it is easy to mix up the latter. Rhetoric starts from order. It operates on those higher level constructs and leverages that structure to do things, like syncing citations, that no other editor can do.
This is what legal drafting should look like, and with some luck, what it will look like.
Until next time.
Peace.
Mustafa Moiz, Esq.
Co-founder & CEO, Rhetoric