Category Archives: Law Practice

Texting and Legal Writing: Survey Results

Although 86 responses is not a large number, the results are interesting and align with what I would expect.

1. Broadly speaking, what type of legal practice are you engaged in?
Litigation 62.79% 54
Transactions 13.95% 12
General practice 2.33% 2
Administrative law 9.30% 8
Other 11.63% 10
Total 100% 86

2. In a professional capacity, how much do you use texting (or something comparable to texting but not email)?
Heavily 9.30% 8
Moderately 20.93% 18
Rarely 60.47% 52
Never 9.30% 8
Total 100% 86

3. In a professional capacity, do you text mostly colleagues, opposing lawyers, or clients?
Mostly colleagues 60.47% 52
Mostly opposing lawyers 0.00% 0
Mostly clients 3.49% 3
Mostly colleagues and opposing lawyers 4.65% 4
Mostly colleagues and clients 19.77% 17
Mostly opposing lawyers and clients 0.00% 0
None of the above or I don’t text in a professional capacity 11.63% 10
Total 100% 86

4. In a professional capacity, do you ever convey legal analysis, legal advice, legal judgment, or comparable content by texting?
Yes, often 3.53% 3
Yes, occasionally 11.76% 10
Yes, rarely 29.41% 25
No, or don’t text in a professional capacity 55.29% 47
Total 100% 86

5. Should a law school first-year legal-writing course address texting?
Yes, cover it thoroughly. 4.65% 4
Yes, cover it briefly. 58.14% 50
No, don’t cover it. 30.23% 26
Don’t have an opinion. 6.98% 6
Total 100% 86

Improving writing—yours and others’

Lawyers are editors, and not only of our own work—we often edit others’ writing. An edit that improves the writing is great, but a good edit can also improve the writer. So lawyers are teachers, too. How are we doing? It’s mixed. In this post I’ll mention three recurring problems and offer some suggestions.

“I get no writing feedback.”

Lack of feedback is understandable. Lawyers are busy, and getting the document done is more important than helping junior lawyers improve their writing. And junior lawyers should be responsible for their own improvement, right? Yet without even minimal feedback, it’s hard to improve.

There are no easy solutions to this recurring problem. As Bryan Garner noted, “The modern … well-managed law firm has more work to do than it can complete in a given time.”[1] Sometimes what’s lost is teaching—including teaching writing. So granting that it will be difficult, I still urge junior lawyers to ask for feedback, and senior lawyers to try to give some.

“The writing feedback I get is wrong.”

I occasionally hear this from former students, and I’ve even written about it.[2] It’s great that the senior lawyer is editing the document and offering feedback, but sometimes the junior lawyer disagrees with the edits or believes they’re bad writing. What to do?

Junior lawyers, always to do your best to meet your supervisor’s expectations, even if you disagree with them. I often quote legal-writing teacher Ken Bresler: “I teach legal writing. I don’t run a job-placement service. Write how they want you to write.”[3]

And before you assert that your boss is mistaken, look it up. Both younger and older lawyers often rely on rules and conventions they vaguely recall from high school or college. But there are several authoritative, comprehensive legal-style references available. Here are three:

  • Bryan A. Garner, The Redbook: A Manual on Legal Style (3d ed. 2013)
  • Joan Ames Magat, The Lawyer’s Editing Manual (2008)
  • Deborah E. Bouchoux, Aspen Handbook for Legal Writers (3d ed. 2013).

Of course, in legal writing, a senior lawyer’s practical knowledge and insights can outweigh a technically correct writing choice, but consulting an authoritative reference promotes consistency and raises everyone’s writing IQ.

“The writing feedback I get is useless or mean.”

Given how busy lawyers are, it’s not surprising that editorial feedback is sometimes vague or unkind. Yes, junior lawyers should develop a thick skin and try to learn from the comments. But senior lawyers can also be more helpful. Three suggestions.

First, sending back a track-changes version in which you rewrote the document the way you like is better than no feedback at all, but not much. If that’s all you have time for, fine, but some level of feedback is desirable. (For a junior lawyer who isn’t getting feedback, finding the senior lawyer’s final version and preparing your own track-changes document is one way to learn.)

Second, if you give feedback, try to avoid cryptic or vague comments and harsh or personal criticism. Cryptic comments are often abbreviations or vague descriptors: “nom.,” “BB,” “I can’t follow this,” or “Needs work.” They’re usually unhelpful. Harsh criticisms are often labels: “Terrible!” Or they address the writer, not the work, often assuming the writer is sloppy or lazy, not merely inexperienced: “Is this the best you can do?” or “Next time, run a spell check.”

Third, if you can make the time, try these best practices for writing feedback as identified by Anne Enquist:

  • Provide at least some positive comments so the writer knows what techniques work and can repeat them.
  • Write comments that not only identify concerns but also suggest ways to address them.
  • If you have time, provide a short summary of the strengths and weaknesses in addition to line-by-line comments.[4]

Being an editor and a teacher takes effort—and time, which lawyers don’t always have. But try these tips to avoid the biggest problems.

_____

  1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 533 (3d ed. 2011).
  2. Wayne Schiess, What to Do When a Student Says, “My Boss Won’t Let Me Write Like That,” 11 Perspectives: Teaching Leg. Res. & Writing 113 (Spring 2003).
  3. Ken Bresler, Pursuant to Partners’ Directive, I Learned to Obfuscate, 7 Scribes J. Legal Writing 29, 30 (2000).
  4. Anne Enquist, Critiquing Law Student’s Writing: What the Students Say Is Effective, 2 Legal Writing: J. Legal Writing Inst. 145 (1996).

More on “weak” legal writing

When asked to define “weak” legal writing, I began listing traits that I think make legal writing weak. I continue my list here.

Abstraction. Legal writers sometimes focus heavily on concepts and principles and ideas—instead of concrete things and actions.

Over-intensifying. In trying to persuade, some writers overuse intensifiers like blatantly, clearly, completely, extremely, highly, obviously, plainly, substantially, totally, very, and wholly.

Avoidance of personal pronouns. Although not always appropriate, many client memos could use you/your and we/us/our instead of proper names, initials, or abstract descriptors. So this [on law-firm letterhead]:

  • Great Mountain Savings Association (“GMSA”) has requested that this firm address whether Board Resolution 17-009 (“BR 009”) was validly approved. BR 009 was approved on …

becomes this

  • You asked us whether Board Resolution 17-009 was validly approved. The Resolution was approved on …

Backing in. Too often, we begin a document, a section of a document, or a paragraph with background information or with the first event chronologically—then build to the key point. Legal writing is usually better front-loaded: key point first, background second. So this

  • You asked us whether Board Resolution 17-009 was validly approved. The Resolution was approved on …

becomes this

  • You asked us whether Board Resolution 17-009 was validly approved. Our opinion is that the Resolution was validly approved. The background and analysis follow. …

Missing chances to tell stories. We legal writers are sometimes guilty of dumping information on top of information when structuring the content as a story would be more inviting—and compelling. It’s not always possible to turn a tax memo into a pleasant narrative, but many legal documents have a statement of facts that could be told as a story.

 

What is “weak” legal writing?

A reader submitted this question:

I have a colleague who often says, “Legal writing is weak.” He has never elaborated, so I’m wondering, in the context of analytical legal writing for a memo or brief, what does this mean? What makes legal writing “weak”?

Here’s my response.

“Weak” is a vague description, but it’s typical of the way we describe writing. We have a feeling that something isn’t good or strong, but we aren’t always able to articulate why. So I’ll try to be specific. (Obviously, a document with grammar and punctuation errors is weak. Let’s put those kinds of errors aside.) When I read legal writing I consider “weak,” here are the most likely causes—often many of them are present.

Over-hedging. Failing to come to a concrete conclusion or recommendation. Overusing phrases like to some extent, it is likely that, in most circumstances, it might be the case that, and so on. Overusing the stereotypical qualifying words: appears, basically, essentially, generally, might, maybe, perhaps, primarily, probably, seems, slightly, somewhat, and virtually.

Passive voice when active is more appropriate. The emails were deleted. (By whom?) Or The emails were deleted by Rogers instead of Rogers deleted the emails. Passive voice isn’t wrong, but it obscures or hides actors and is longer than the active voice.

Over-nominalized writing. Heavy use of nouns when verbs would be more vigorous. Make a payment instead of pay. Or The company achieved project completion instead of The company completed the project.

Over-formality. Big words when small ones would do. The company completed the project instead of The company finished the project. Or Cramer utilized the data reflected in the report instead of Cramer used the data shown in the report.

General wordiness. Prior to for before, subsequent to for after, with regard to for about, in connection with for for, and so on. Closely related to over-formality.

Overuse of be verbs. Beginning too many sentences with there is, there are, there were, it is, it was, and similar constructions.

More to come.