Category Archives: Law Practice

What I Did Last Summer

Gathering opinions on new legal writers

In summer 2022, I had lunch meetings with five local attorneys. My goal was to gather input from practicing lawyers about ways I could improve my teaching of legal writing. Before meeting, I asked my “consultants” to consider three questions:

  1. What do you think of the writing abilities of the new lawyers you work with?
  2. What do you think of new lawyers’ ability to manage research and writing projects?
  3. What are some changes or additions to law-school legal-writing instruction you would recommend?

1. Writing abilities of new lawyers

I was pleased to learn that, according to my consultants, the writing ability of new lawyers these days is okay. No one was gushing about it—after all, new lawyers need lots of practice and experience to become skilled legal writers. But I was pleased that I didn’t hear any “the sky is falling” or “sound the alarm” reports.

I think that’s partly because formal legal-writing instruction in U.S. law schools, once almost non-existent, has been transformed in the last thirty years. At many schools, legal writing has moved from a low-credit, pass-fail course taught by teaching assistants to a graded course taught by full-time faculty.

Still, there’s room for improvement, and the most-common concerns expressed about new lawyers’ writing fell into three categories: tone, concision, and organization.

Tone: My consultants said that new lawyers sometimes write too formally, in a tone that is stiff or stilted. They guessed that new lawyers might be trying to sound …  lawyerly. This is understandable, of course, and it’s a phase nearly every lawyer passes through. You’ve entered a learned profession, and you’ve become a licensed attorney, so you want to sound like one.[1] Yes, writing with an unduly formal tone is a flaw, but it’s not a major one. With some good feedback about audience and purpose, new lawyers will adapt to expectations and begin to adopt a readable tone.

Concision: New lawyers’ writing is sometimes wordy and verbose, my consultants said. They see long sentences, complex structures, and big words. But mostly, they said, they see documents that are too long. A memo the assigning lawyer thought would be five pages is ten; email messages that could be two or three paragraphs are five. New lawyers need to weed out extraneous details and unnecessary background and deliver the key information or analysis efficiently.

I agree that concise writing is a challenge for new lawyers, and my perspective as a teacher of first-year students makes me aware of a risk to keep in mind. If you apply pressure on novice legal writers to be concise, they might cut useful or necessary content just to achieve concision. In other words, to get the five-paragraph email down to three paragraphs, the beginner might just cut two paragraphs—perhaps removing a key legal standard or an important piece of the analysis.

What we want, of course, is for the writer to carefully edit all five paragraphs, removing a few words here, dropping an unnecessary comment there, and then consolidating so that we end up with three paragraphs. Ideally, they learn to achieve concision by a series of small edits that add up.

Organization. Even a concise piece of legal writing that uses the right tone still needs to be well organized, and in this area my consultants had two key comments: First, they wanted more up-front, bottom-line summaries in nearly everything thing they read. Spill the beans: get to the point first and put the background second, they said. It’s a common recommendation for all legal writing.[2] Second, the rest of the document should be sensibly ordered, with headings if necessary and strong topic and transition sentences.

These two key comments—the need for an up-front summary and the importance of a sensible, discernible order—highlight the reality of law practice: Lawyers are busy. These two techniques help busy lawyers read and understand efficiently.

2. New lawyers’ ability to manage research and writing projects

The responses to this question fell into three categories: Getting assignments, following up, and following through.

Getting assignments

I practiced law before the Internet, cell phones, and email, so the way I got assignments was almost always to go into someone’s office with a pen and pad in hand. I sat and took notes on what I was told.

It turns out that’s still a good idea, according to my consultants.

If possible, assigning attorneys and assignment-receiving new attorneys would meet in person to discuss the assignment. The new attorney should have something to write with—probably not just a cell phone.

Even when getting an assignment by email (the most common method, according to my consultants), it’s usually a good idea to drop by and talk. New attorneys should ask about the assigning attorney’s expectations on timing, depth, length, and so on to be sure they understand the assignment. Then, after some initial work, they should check back to be sure they’re on the right track.

Following up

New lawyers and law students tell me they sometimes avoid following up with questions because they don’t want to look inept or uninformed. But my consultants said that, in fact, not following up with the assigning attorney is a bigger problem than asking too many questions.

Although it doesn’t happen frequently, it’s a serious problem to do the research and write up a project that isn’t what the assigning lawyer wanted. Of course, it’s best to follow up only after you’ve done at least some research, so you’ll have something useful to say when you check back.

Sometimes the new lawyer gets a project and can’t find anything or, at least, anything that seems responsive to the assignment. When that happens, it’s important to follow up, but it’s just as important to be able to report back with “here’s what I did.” For example, it’s great if new attorneys can say, here are the research queries I submitted, or here are the types of authorities I consulted, or something like that.

Following through

According to my consultants, new lawyers should aspire to do more than merely answer the question; one recommendation is to include a short report on the best cases for and against the outcome predicted. In addition, new lawyers should invest in the problem: ask about it, care about it, try to get involved.

Some new lawyers make the mistake of assuming that it’s a senior attorney’s job to get them involved and pull them into projects. But getting involved is a new attorney’s job. New attorneys should become invested in the problem, ask follow-up questions, and care about the result for the client.

3. Recommended changes or additions to law-school legal-writing instruction

My consultants had lots of ideas, and I’ve listed some below. There are some great suggestions, but given that my focus is on first-year legal writing courses, I’ve categorized them into two groups: (a) good ideas that my colleagues and I are already doing, are hoping to do more of, or are planning for the future; and (b) good ideas that might become part of an upper-division course or clinic but that would be difficult to implement in the first-year legal-writing course.

(a)

  • Oral assigning of projects
  • Assignments given and responded to by email only
  • Assignments that ask, “The client has done [or wants to do] X. What do you recommend?”

(b)

  • Assignments to adapt a template motion or brief into a motion or brief on a different topic
  • Assignments to find motions, briefs, and other pleadings prepared by opposing counsel
  • Training in transactional drafting
  • Assignments to boil down a complex transaction into a concise report

Overall, it was a great summer project that I hope to do again in a more systematic and expanded way.

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[1] Wayne Schiess, The Sound in Your Head, Austin Lawyer 6 (Nov. 2009).

[2] Wayne Schiess, Legal Writing Nerd: Be One 25-29, 30-36 (2018).

Student Essay: Read the News

Yes, Lawyers Should Read the News. But Not for the Reason You Think.

By Emma Edmund

Bryan Garner’s “A Tale of 2 Associates” includes plenty of examples of how polished legal writing can help a lawyer win a client’s case, but its most notable piece of advice is not on how to write, but what to read.

At the end of Garner’s hypothetical situation, second-year associate Denise tells fourth-year Jim to read The Wall Street Journal and The Atlantic, telling him, “They’re not using any techniques in their nonfiction work that we can’t use in ours.”[1] While lawyers read the news to stay up-to-date on current events, Garner references the vast similarities between general journalism and legal writing, specifically the techniques within the writing that lawyers can adopt.[2] Journalism contains three essential elements that can shape better legal writing: a tone geared toward a wide audience, an inverted pyramid structure designed to maximize information absorption, and a delicate balance between revealing details and keeping stories general.

First, journalists write for a broad audience, and legal writers would benefit from writing with a broad audience in mind. For example, The Wall Street Journal, though writing for an educated and wealthy audience, caters to over 42 million unique visitors per month as of 2017.[3] With an audience that large, newspapers and newspaper schools are quick to teach journalists to write simply and give ample, and, if possible, objective, context to their stories.[4]

Lawyers, however, write for a significantly smaller circle; many legal writing assignments go to a supervisor, client, or judge; these people are intimately connected to the legal community. While other lawyers or clients can make up the bulk of the people who read legal work, lawyers should also note who might else read their writing, including students of all disciplines who read legal writing for assignments, journalists who translate lawsuit-related documents into news articles, and people who research legal problems on the internet and stumble across a law firm’s blog. By anticipating a wide audience, lawyers can train themselves to make their writing more accessible, and they can read newspapers for examples of writing style and structure that incorporate accessibility.

Second, lawyers should study the typical news article structure, also known as the inverted pyramid. General, hard news stories employ the “inverted pyramid” by containing the most essential information in the lede, the necessary context in the second, nutshell paragraph, and details organized from most to least important in the rest of the article.[5] Though the practice originated with journalists nervous about losing a story as it was transmitted over telegraph, current journalists also recognize that readers might not finish the entire story as they scroll through a website or social media channel.[6] The inverted pyramid allows readers to get the most essential elements of the story, even if they don’t finish the article.

Lawyers should implement this structure in select situations. In informal memos and other non-templated legal writing assignments, lawyers can style their writing so that the most important argument or topic comes first, with less relevant information near the bottom. Texas Law promotes this style of writing with its emphasis on the “short answer” at the top of assignments, not only because it prevents confusion if someone stops reading early, but because it also presents a more persuasive, coherent argument.

Finally, news articles provide examples of how to play with details. Legal writing is necessarily detail-oriented, but journalists are tasked with writing 500-word articles that contain essential details while generalizing the rest. Studying what journalists choose to write about and why, versus what they choose to keep out or save for a feature piece, could help lawyers determine how to communicate with the public or a judge through a brief with a tight deadline, informal blogs, LinkedIn posts, tweets, and more. Though many cases come down to the smallest details, most blog posts and other public-facing sites address general topics and issues, and lawyers who read news articles can mimic the level of detail needed to fully convey ideas to a wide range of people.

But lawyers should take journalists’ writings with a grain of salt when studying them for writing techniques—after all, most journalists do not have a J.D. and thus do not know how to write about strictly legal issues. But reading well-respected newspapers and magazines serve a dual purpose: they keep lawyers current on events and allow them to investigate and expose themselves to different types of writing. Lawyers can study how to write for a wider audience, mimic or remix a typical hard news structure, and play with the level of detail in assignments to evolve and shift their style for various needs.

[1] Bryan A. Garner, A Tale of 2 Associates: How Polish and Attention to Detail Can Win the Motion, ABA Journal, June 2014, at 1, 4.

[2] See id.

[3] WSJ.com Audience Profile, Dow Jones & Co., Inc. (2017), https://images.dowjones.com/wp-content/uploads/sites/183/2018/05/09164150/WSJ.com-Audience-Profile.pdf (noting that readers’ average household income was over $242,000 and 81% of readers graduated college).

[4] Journalism and Journalistic Writing: Introduction, Purdue Online Writing Lab, https://owl.purdue.edu/owl/subject_specific_writing/journalism_and_journalistic_writing/index.html; How to Write Like a Journalist: 8 Tips, MasterClass, Sep. 8, 2021, https://www.masterclass.com/articles/how-to-write-like-a-journalist.

[5] The Inverted Pyramid Structure, Purdue Online Writing Lab, https://owl.purdue.edu/owl/subject_specific_writing/journalism_and_journalistic_writing/the_inverted_pyramid.html.

[6] Id.; Jasmine Roberts, Writing for Strategic Communication Industries (2016), https://ohiostate.pressbooks.pub/stratcommwriting/chapter/inverted-pyramid-style/#:~:text=In%20general%2C%20news%20stories%20are,or%20stop%20reading%20the%20story..

Student Essay: Mistakes Matter

Mistakes Matter

By Belinda Schwertner

“Mistakes don’t matter” was not a phrase overheard in my first-year writing course at The University of Texas School of Law. But, in Bryan A. Garner’s 2014 ABA Journal article, A Tale of 2 Associates: How Polish and Attention to Detail Can Win the Motion, Jim, a fourth-year associate, tries to convince Denise, a second-year associate with whom he is collaborating on a motion, that mistakes are acceptable. Jim contends that minor grammatical errors are not consequential to legal writing if those mistakes are small and the writing’s meaning is clear. After some coaxing, Jim reluctantly allows Denise carte blanche to edit the motion. Denise’s careful editing helps them win the motion and convinces Jim that correcting mistakes in legal writing is worth the effort.

One question that Garner’s article invites is why Jim is hesitant to accept Denise’s help polishing his motion. Jim believes that editing for grammatical mistakes wastes both time and money. Jim reasoned that he had previously had several successful hearings with this judge without them mentioning any shortcomings in his writings. However, Jim underestimates how grammatical mistakes can take away from the substance of legal writing. Grammatical errors in legal writing can cause the reader to pause to understand the writer’s meaning—the reader’s attention span shortens while their negative perception of the writing increases. Although mediocre writing can be effective, writers should not unnecessarily burden readers with careless errors.

Another explanation for Jim’s reluctance to accept Denise’s help could be an unfounded belief that first- and second-year associates are less-skilled writers. Having more experience, Jim might believe he is a better writer (although Denise’s editing skills are superior). Perhaps Jim is unaware of nationwide advances in legal writing curriculums. Maybe Jim is too busy “working” to work on improving his writing skills. Most people dislike change; similarly, Jim might favor the status quo. However, Jim comes to appreciate that the “cost” of editing—one hour and five minutes of Denise’s time—is well worth the rewards received: their supervising partner’s praise and admiration and the judge’s acknowledgment of their well-written motion.

Bryan Garner’s tale illustrates several critical points about legal writing. For example, correcting grammatical errors can only improve substantive legal writing. A small investment of time in editing reaps huge rewards. Further, legal writers can enhance their skills incrementally, making the process less daunting. Resources available to legal writers today are vast, and many are accessible online and free. Frequently reading non-legal works, such as well-written prose and periodicals, can also improve one’s writing intelligence. Other lessons learned from Mr. Garner are that senior lawyers should not assume that just because a lawyer is their junior, they are not good legal writers. Also, people beyond the presiding judge will likely read legal writings. Impressions about a lawyer, and by extension, their firm, can be gleaned from the quality of their writing. Therefore, given the vast legal writing resources and the cost-benefit analysis of employing editing, most lawyers have no excuse not to write well. Finally, it is never too late to learn.

Since writing is what lawyers spend most of their time doing, lawyers should take steps to improve the quality of their legal writing. Law schools continuously strive to improve their legal writing curriculum. And, despite anecdotal evidence to the contrary, law students are not hopeless in their legal writing endeavors. Moreover, lawyers are prone to the cognitive bias of illusory superiority, where a person overestimates their qualities and abilities in relation to the same qualities and abilities in other people. If a lawyer harbors this cognitive bias, awareness of it might allow them to be more receptive to learning techniques that could improve their legal writing.

Another way that lawyers could enhance the quality of their legal writing would be for each state’s bar association to require coursework on legal writing as part of continuing legal education (CLE). Currently, Texas requires licensed attorneys to complete fifteen hours of CLE yearly, three of which are ethics requirements. It is not beyond reason to mandate CLE in legal writing because writing is a core skill of the legal profession. The American Bar Association’s Model Rules of Professional Conduct states in the comment section of Rule 1.3 (Diligence) that “a lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Indeed, the requirement of zealous advocacy necessitates an attorney’s need to present only their best-written work.

Not all lawyers possess the same level of writing intelligence, but most lawyers can improve their writing skills with little effort. There should be no excuse for, or acceptance of, simple errors in legal writing. In 2022, spell check is not hard to use. Mistakes in legal writing are like a near miss in aviation. Even though passengers ultimately make it to their destination without injury, the journey might have been harrowing for them. Similarly, a judge may grant a poorly written motion, but at what cost to the reader and the writer’s reputation? Lawyers are known for their incredible attention to detail. Still, grammatical mistakes in legal writing can cause the reader to believe that the analysis and reasoning of the author are unsound, even though they might not be.

There is almost always room for improvement in legal writing. Most lawyers can learn to improve their legal writing through patience and practice. Also, if legal writers are diligent in correcting their grammatical errors, they will eventually require less time for editing as their writing skills evolve. Good legal writing can be powerful. The time an attorney spends editing often translates to real-world positive results. Just ask Jim.

Creating Shorthand References (hereinafter “CSR”)

Advice for creating shorthand references

My books: Legal Writing Nerd and Plain Legal Writing

In legal documents, we sometimes need to create shorthand references for recurring names. For example, it’s not unusual for a legal document to begin like this:

Plaintiffs Roger T. Howard (hereinafter “Howard”) and Leticia Howard (hereinafter “Leticia” and, together with Howard, the “Plaintiffs” or “Howards”) brought this action against and Southern National Bank (hereinafter “SNB”) and Green Fields Agricultural Company (hereinafter “GFAC”).

That’s a cluttered paragraph, but it’s not unusual. Sometimes lawyers are guilty of “painstakingly (and painfully) shortening every label on the landscape. Such a practice invites ridicule, especially after six or seven names have been defined, names that could never be confused with any others anyway.”[1]

That’s why some legal-writing experts say that creating shorthands with a parenthetical isn’t even necessary.[2] These rebels note that journalists and other writers would never do this:

President Joe Biden (the “President” or “Biden”) is expected to speak at a Memorial Day observance in Delaware this weekend….

I agree with these experts, but I’ve been unable to persuade many lawyers of this view. They say that there’s typically more at stake in a legal document (rights, duties, money, liberty) than in a news article, and legal documents place a high value on precision. So it’s natural that legal documents would contain shorthand references, and in this column I offer guidelines for creating them.

Drop the archaic word hereinafter. Simply give the full term and then the shorthand, like this: Southern National Bank (“SNB”).

Some writers drop quotation marks from the parenthetical, asserting that the defining purpose is obvious.[3] Others retain them—to clarify that the parenthetical is a defining one and not a parenthetical used for some other purpose. My view: retaining quotation marks is harmless.

Don’t create a shorthand and never use it—which happens more often than it should. Of course, it results from one of two causes: the habit of shorthanding everything upon first use without checking for subsequent use; and the result of edits that remove later uses. So as part of a thorough edit, do a search for every shorthand you’ve created. If only one shows up, delete it.

Generally avoid alternative shorthands: Roger T. Howard (“Howard” or “Plaintiff”). It’s like saying, “I’m not going to be careful, so you keep track.” Alternative forms likely arise when the writer use a form document and doesn’t want to search and replace. Do the replacing.

If the client, person, or party refers to itself in a certain way, use that form—don’t make up your own. If Green Field Marketing Company refers to itself as “GFMC,” use that. But if the company refers to itself as Green Field, use that. Don’t create unnecessary initials, although initials have their uses.

Suppose the document mentions Southern National Bank, Southern Mortgage Company, and Southern Real Estate. You could use those full names throughout—it wouldn’t be the end of the world—but you might need initials: SNB, SMC, SRE. And what if two people have the same surname? A common convention is to use given names: Roger and Leticia. Of course, using Ms. Howard and Mr. Howard is fine if the parties are spouses.

Legal writing (“LW”) already abounds with initials and acronyms (“IA”), so when you have a choice, default to words. Naturally, use well-recognized initials (NCAA, CBS) and acronyms (CERCLA, ERISA); otherwise, try to use use words. If the party is Southern National Bank, the short form “Southern” is easier to read than “SNB.”

A final tip: Try to avoid larding the opening paragraph with a half dozen defined terms. It’s actually okay to create a shorthand on the second reference. Use the opening paragraph to set the stage, provide background, or summarize your purpose.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Karen Larsen, The Miss Grammar Guidebook 42 (Oregon State Bar 1994).

[2] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 268 (2003); Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 139 (2002).

[3] Louise Mailhot & James D. Carnwath, Decisions, Decisions: A Handbook for Judicial Writing 37 (1998).