Monthly Archives: May 2014

The biggest impediment

The biggest impediment to better legal writing isn’t the lack of quality instruction in law school.

It’s law practice.

Deadlines. Time limits. Conventions. Fear. Supervisor expectations. Local rules. Forms and templates. Money. Inertia. Complacency.

All these prevent lawyers from taking the appropriate time to polish their writing. For example, even if a lawyer has four weeks to write a brief, that’s not enough because the same lawyer has three other briefs, four memos, and eight letters to write at the same time, not to mention the 150 e-mail messages to read and respond to.

Revising, editing, and rewriting are what make mediocre writing good and good writing great, but lawyers don’t have enough time for them.

David Mellinkoff captured the nature of the busy law practice and its effects on legal writing:

Sometimes urgency forces precedence over everything else. Get it done. Get something out. We’ve got to file. This is a “rush.” The writer is under pressure to take shortcuts. This has become the normal environment of most legal writing, and is one of the principal reasons why so much of it is so bad.

David Mellinkoff, Legal Writing: Sense and Nonsense 116 (1982).

The unfortunate fact is that this kind of rushed approach often gets the job done—it’s often good enough or has to be. One reason it gets by is that many of us have been writing this way—under a deadline and without sufficient time devoted to polishing—since college:

Many young lawyers seem to have survived writing assignments in college and law school (with the exception of law-review writing) by turning in what were basically first drafts, lightly edited to fix glaring errors. They are unprepared to regard editing as a serious, laborious activity.

Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 298 (2003).

And so practicing lawyers continue to churn out mediocre or poor writing; the exigencies of modern life and law practice almost require it.

True writing classes are rare

High-school classes that teach writing are rare. College classes that teach writing are rare. Graduate-school classes that teach writing are rare. In fact, for most of my first-year law students, the required legal-writing course is the first class they’ve ever taken that is actually and seriously about writing.

I can’t prove my assertions, but I offer three anecdotes.

1. Pre-AP English isn’t about writing.
I know a 10-grader taking Pre-AP English. The course focuses on literature, not writing. The course covers a dozen books and plays, and the students learn about mythology (The Odyssey, The Iliad), Shakespeare (Julius Caesar, Romeo & Juliet), religion (The Inferno), war (All Quiet on the Western Front), and more. They read and annotate these works, do group projects about them, and take tests on them.

What they don’t do much is write about them.

Yes, they usually write an essay as part of the test on each work, but that’s a timed, in-class writing project. Better than nothing, but not terribly practical. It’s really more about what they know than how well they can write. And besides, I’m convinced that high-school and college essays and the grading of high-school and college essays foster a formal, fancy, show-off type of writing, the kind everyone claims to hate but that many academics do and reward.

What’s more, for two of the works, the teacher had students prepare an essay outline and turn that in as the writing project. Not much writing practice there.

(I’m not complaining. I’m describing. Do you want to grade 100 10th-grade essays on The Iliad? Neither do I. Do you want to let 10th graders do the essay untimed at home and then try to catch all the plagiarism? Neither do I.)

2. College writing courses aren’t about writing.
I once attended a university-sponsored training session called “Creating Outcome Assessments for Writing Assignments.” Anyone teaching a writing course was invited, and about 25 teachers were there. We each introduced ourselves and named the course we were teaching. I was the only person whose course title included the word “writing.” The others were teaching history, literature, sociology, and so on. But each course required a paper, so it was a “writing” course. I realized they weren’t teaching writing; they were teaching history (or whatever) and had to give a writing assignment.

So who’s teaching writing? Maybe all the writing teachers already knew how to create an outcome assessment, so they had no need for the training, and that’s why none of them were there. Maybe. Or maybe there are very few classes that actually focus on teaching writing.

3. Master’s classes aren’t about writing.
One of my students told me no one had ever commented on her writing to the degree her legal-writing teachers had. In earning her master’s degree, she had written a lot of papers and a lot of essays, but she almost never got mechanical or structural comments on them. What was most important, she learned, was that the paper presented a great idea, an original idea, something new. That’s what mattered.

Of course, the paper couldn’t be sloppy, full of writing errors. But no one in her program was concerned about that; they were all average to above-average writers. So although the course grade was based almost entirely on writing papers, there was no classroom instruction on writing and very little feedback on the actual writing the students did.

My point?

Many of us assume someone else taught students how to write. We look backward to college, to high school, to middle school. We assume someone taught them writing. We assume they learned it. We assume they know the basics (and some of us define the basics fairly comprehensively, possibly forgetting what we once didn’t know). But what if no one ever taught them writing? I’m beginning to think no one ever did.

And why not?

Maybe it’s because teaching writing is a pain in the neck. It’s hard, and it’s easier and more interesting to focus on something like The Iliad or history or a new idea. It’s easier to assume someone else taught them writing, so we don’t have to.

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Don’t Rest on Plateaus

Are the legal-writing classes you had in law school the last writing training you’ll need for your career?

If you’re a bankruptcy lawyer, was a law-school class the last bankruptcy training you’ll need?

That’s your answer. Legal writing is like any skill or substantive topic: there’s always more to learn, and there’s always room for improvement. But sometimes, busy legal writers rest on plateaus. We produce good-enough legal writing, and we’re comfortable on that plateau, so we stay. Here’s some advice for moving on.

1. Admit you have room to improve. When I was a full-time lawyer, I thought I was a good writer, above average. Now I realize I hadn’t been that good. I’d been quite mediocre. I was poorly educated about the standards of high-level professional writing, and I was ignorant of my own limitations. Was I unique? Probably not. Many lawyers believe themselves to be good writers, above average within the profession, but I say this: The first step to becoming a good legal writer is to admit you have room to improve.

2. Get some references. Once you’ve admitted you have room to improve your writing—that you’re resting on a plateau—start learning. A great way to raise your writing IQ is to consult the experts. When you have a question about writing, don’t rely on half-remembered “rules” from high-school English. Look it up. But where? Here are two websites I like:

But if you’re serious about legal writing, you’ll need some reference books, and here are three I recommend:

  • The Redbook, by Garner
  • The Texas Law Review Manual on Usage and Style
  • Just Writing: Grammar, Punctuation, and Style for the Legal Writer, by Enquist & Oates

Your goal is to have reliable references handy to answer questions. Other professional writers consult writing references, and lawyers should, too.

3. Read writing books. If you’re serious about getting off that plateau, you’ll have to do more than consult references. You’ll have to study the principles of good writing and good legal writing. But how, when you’re busy? Set a goal to read one book on writing every year. Here are some I like

  • Lifting the Fog of Legalese, by Kimble
  • The Lawyer’s Guide to Writing Well, by Goldstein & Lieberman
  • Writing with Style, by Trimble.

These books are great sources of writing knowledge, and they’re also well written. Reading the best books teaches you writing and exposes you to good writing.

4. Practice what you learn. You’re reading about writing and you’re consulting writing references. Now practice what you’re learning. Of course, for any working lawyer, writing practice is part of the job: you’re writing all the time. Yet we tend to rest on plateaus—we write as we always have, with the same habits, the same limitations. (That’s why studying writing is so important. Practice without study is usually just repetition.) So experiment with things you’re learning. Try new techniques and master new approaches to writing.

5. Edit better. We all know editing is crucial to good writing. Most of us can’t produce high-quality writing in one draft (or even two). We must edit, so here are some suggestions for getting off the editing plateau.

Leave plenty of time, even though it’s hard to do. How much? One pro recommends half the time on a writing project. Debra Hart May, Proofreading Plain and Simple 46 (1997).

Use more than one technique when editing: Do you edit on the computer screen? That’s fine, but it’s not enough. Do some editing on a hard copy, too; we read and react differently to screen text and printed text. Do you read the text out loud? That’s great: you’re using your ears, not just your eyes, to help you edit. Now go further and have a trusted colleague read it and suggest some edits. Do you read the document in reverse, from the last sentence to the first? Good. This technique tricks your mind, so you’re not familiar with the text; familiarity leads to poor editing. Now read only the topic sentences. Next read the opening and closing paragraphs.

Mediocre writing becomes good writing only through editing.

6. Accept critique. Here’s the hardest part: seek and welcome critiques and candid suggestions for improving your writing. This one’s tough because it’s natural to be defensive about your writing—maybe even insecure. I know I am. But when I avoid critique, I don’t improve much. I rest on a plateau. So open yourself to honest critique. Find a trusted colleague, friend, or supervisor, someone whose judgment and writing you respect. Then ask for suggestions, and take them to heart. The best writers are open to critique.

Now move off that plateau.

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If you’d like to comment on this or any post, please email me. I’ve had to disable comments because of excessive spam. Sorry.