When you read average writing, shifting from one paragraph to the next can feel like a giant leap. When you read great writing, by contrast, the same shift feels like a small step.
Improving your transitions between paragraphs is the best way to improve flow and to push your readers to keep reading. If you want to give readers a soft landing so they don’t feel thrown off a cliff, start a new paragraph by rappelling off of a word—or thought—from the end of the paragraph before.
Let’s start with a typical transition. I’ve reproduced below the first two paragraphs of a summary judgment motion filed for former Bank of America CEO Ken Lewis. I’ve bolded both the end of the first paragraph and the start of the second:
Kenneth D. Lewis’ motion for summary judgment on Plaintiffs’ claims based on the nondisclosure of interim and forecasted fourth-quarter 2008 Merrill Lynch & Co., Inc. (“Merrill”) losses presents this Court with a straightforward, critical and dispositive question: Setting all of the rhetorical and misleading flourishes in Plaintiffs’ pleadings aside, can Plaintiffs demonstrate that Mr. Lewis, as Chief Executive Officer (“CEO”) of Bank of America Corp. (“BAC”), knowingly, recklessly or carelessly violated the securities laws by failing to overrule the considered judgment of BAC’s Chief Financial Officer (“CFO”), who had consulted with inside and outside counsel, that public disclosure of significant interim and forecasted losses at Merrill was not warranted? On the record now developed in discovery, it is crystal clear that as a matter of law, the answer is a resounding “no.”
There are no relevant facts in dispute for a fact-finder to decide. It would blink reality and require ignoring the established law to hold otherwise where, as here, the undisputed facts unique to Mr. Lewis show that he did precisely what the CEO of a large enterprise should have done when faced with the prospect of large interim and forecasted losses at Merrill: he engaged on the question of disclosure with BAC’s CFO and received reports from BAC’s CFO that the question of disclosure had been vetted proactively with expert counsel on two occasions and that counsel had concluded that disclosure was not warranted.
The opening paragraph could use some pruning and streamlining, but the gist is clear enough: Even if Lewis failed to disclose projected losses at Merrill, because he relied on the advice of his CFO, who in turn relied on outside counsel, he did not knowingly or carelessly violate the securities laws, at least not on this record.
With that thought in mind, now read the opening of the second paragraph: “There are no relevant facts in dispute for a fact-finder to decide. It would blink reality and require ignoring the established law to hold otherwise where, as here . . . .” That’s a bit of a leap, and by the time you get to “hold otherwise,” you might feel lost.
Of course, the writers might counter that in a summary judgment motion, whether material facts are in dispute is, well, “material,” and that “blinking reality” and “ignoring established law” are bad things indeed. But for the reader—the only player who counts—all of this new information is too remote from the end of the initial paragraph.
It might have helped to start the second paragraph by building a bridge from “on the record” at the end of the first: “As the undisputed facts in that record make clear, Mr. Lewis did what any CEO would have done upon facing the prospect of a similar loss: he discussed the disclosure issues with his CFO, who reported to him that he had twice vetted those same issues with expert counsel . . . .” Then and only then, and only if we truly need the “blinking reality” rhetorical flourish, to use the attorneys’ own words about the plaintiffs, could we end the passage with something like “Finding Mr. Lewis’s conduct to be a ‘knowing’ and ‘reckless’ violation would thus blink reality and ignore established law.”
By starting paragraphs with something familiar, you help the reader avoid doubling back. Consider the following passage—the very end of one paragraph and the very start of the next:
Except in one specified instance—not applicable here—the [Clean Air] Act nowhere requires the EPA to approve a State’s [Best Available Control Technhology] determination.
A broader principle stems from the Act’s scheme of rules and exceptions, i.e., that Congress otherwise did not intend the EPA to have the “ultimate authority” to determine BACT for particular sources.
Like the “there are no relevant facts” line above, “a broader principle” builds no clear bridge with the end of the paragraph. Again, it’s too remote.
But now read what Chief Justice Roberts actually wrote, in a brief he signed in Alaska v. EPA:
Except in one specified instance—not applicable here—the Act nowhere requires the EPA to approve a State’s BACT determination.
Indeed, that one instance is the exception that proves the rule—that Congress otherwise did not intend the EPA to have the “ultimate authority” to determine BACT for particular sources.
Because the Chief Justice built a bridge through the “one instance,” the link between the two paragraphs propels the reader forward and links the “one instance” to his broader point about the Clean Air Act.
This bridging technique isn’t just for motions and briefs. Below, for example, I share some excerpts from the superbly written 2,200-page behemoth known as the Lehman Brothers Examiner Report, or the Valukas Report, after its author. So smooth are the transitions that you might think that you were reading the Wall Street Journal:
Examiner Report, In re Lehman Brothers Holdings, Inc.:
Lehman also used an array of stress tests to determine the potential financial consequences of an economic shock to its portfolio of assets and investments. Lehman had an extensive staff that was devoted solely to risk management.
These risk limits and stress tests, however, did not impose legal requirements on management or prevent management and the Board from exceeding those limits if they chose to do so. The role of the risk limits and stress tests was to cause management to consider whether a particular investment or a broad business strategy was worth the risk it carried. In addition, Lehman used its risk management system to promote its capabilities to investors, rating agencies, and regulators. Lehman’s management always retained the discretion to use its judgment to decide whether to pursue particular strategies or transactions.
The Examiner did find that in pursuing its aggressive growth strategy, Lehman’s management chose to disregard or overrule the firm’s risk controls on a regular basis. The question whether there is a colorable claim that Lehman’s senior officers breached . . .
Commercial real estate investments, leveraged loans and other principal investments consumed more capital, entailed more risk, and were less liquid than Lehman’s traditional lines of business.
The lack of liquidity increased the risk to the firm in several ways. Having a large volume of illiquid assets made it much more difficult for the firm to accomplish . . .
If we return to the litigation world, you can travel all the way to the Thurgood Marshall era to witness similarly seamless flow in action:
Thurgood Marshall, Brief for Brown in Brown v. Board of Education:
While the State of Kansas has undoubted power to confer benefits or impose disabilities upon selected groups of citizens in the normal execution of governmental functions, it must conform to constitutional standards in the exercise of this authority. These standards may be generally characterized as a requirement that the state’s action be reasonable. Reasonableness in a constitutional sense is determined by examining the action of the state to discover whether the distinctions or restrictions in issue are in fact based upon real differences pertinent to a lawful legislative objective.
When the distinctions imposed are based upon race and color alone . . .
Marshall’s sentences, and not just the paragraphs, feature smooth, bridge-like transitions: “standard . . . standards,” “reasonable . . . reasonableness.”
Here’s a much more recent example, this time by former Solicitor General Seth Waxman in a blockbuster immigration case before the U.S. Supreme Court.
Seth Waxman, Arizona v. United States:
In exercising that discretion, the Executive has traditionally taken into account many factors that implicate foreign affairs.
But you need not always bridge paragraphs with the exact same words. In the Lehman report, for instance, Valukas “recasts” points from the previous paragraph rather than repeating words verbatim:
Lehman’s management also informed the Board, accurately, that the subprime mortgage crisis was constricting profitability and that management was tightening origination standards and taking other steps to address that crisis.
These disclosures were not so incomplete as to lead to the conclusion that Lehman’s management misled the Board of Directors. Nor did Lehman’s officers have a legal duty to disclose additional details to the Board. Lehman’s risk limits and controls were designed primarily for management’s internal . . .
(Side note: I love the flow in “Nor did Lehman’s officers have a legal duty” as opposed to “Additionally, Lehman’s officers did not have a legal duty,” which is what most lawyers would have written.)
You’ll find the same recasting technique in great litigators’ prose: On Viacom’s behalf, below, for instance, Ted Olson has some fun with “safe harbor” and “haven,” recasting them as a “world” at the start of the new paragraph:
Ted Olson’s Opening Brief for Viacom in Viacom v. YouTube:
Indeed, service providers that induce infringement [] have at the very least “[a]wareness of facts or circumstances from which infringement is apparent.” Otherwise, Congress’s narrow safe harbor would be converted into a haven for intentional piracy.
And that is a world in which copyright owners cannot long survive.
(Adding the “And” softens the transition even more.)
In a major gay rights case, Larry Tribe and Kathleen Sullivan have an even shorter bridging sentence, below: “Amendment 2 does just that.”
Larry Tribe and Kathleen Sullivan, Romer v. Evans:
But it is quite another matter for a state’s constitution absolutely to preclude, for a selected set of persons, even the possibility of protection under any state or local law from a whole category of harmful conduct, including some that is undeniably wrongful.
Amendment 2 does just that. It does not simply write into the state’s constitution a substantive rule that a particular sphere of conduct—for example, expelling a guest from one’s home on whatever basis one wishes, however “prejudiced” one’s reasons for finding the guest unwelcome—is a matter for private choice that inflicts no wrong at all and accordingly may not be made the basis of any claim for legal redress by anyone.
And for our final example, some of the best briefs around come out of the Office of the Solicitor General, so you’d expect to see some faultless transitions there as well. You won’t be disappointed. Admire the classic “the same principles apply” bridge in this recent example from a brief by the current solicitor general:
Solicitor General Donald Verrilli, Brief for the United States in Kappos v. Hyatt:
The Court acknowledged that, when an invalidity challenge is based on new evidence, the [Patent and Trademark Office’s] “considered judgment may lose significant force” because “the PTO did not have all material facts before it.” Rather than lowering the standard of proof when new evidence is admitted, however, the Court held that the standard should remain the same in all actions, but that “new evidence supporting an invalidity defense may ‘carry more weight.’”
The same principles should apply when a Section 145 plaintiff presents new evidence that it had no opportunity to submit to the PTO. This Court has long recognized that challenges . . .
One final word: Can you overdo this technique? In theory, yes. But in practice, no, and for two reasons. First, you can’t bridge paragraphs that truly introduce a new point, in which case a pointed transition word or phrase—and, nor, to the contrary—will do. And second, if there’s one thing you don’t need to worry about as an attorney or a judge, it’s that your work will be deemed too flowing or smooth! So get out there and build some bridges.
In the comments below, please share other examples and thoughts.