In summer 2023, I interviewed 23 attorneys to gather input for improving my teaching of legal writing. This project built on a similar project I carried out in 2022. This post summarizes what I did and what I learned.
My questions
I sent these questions to the attorneys in advance:
- What kind of work-related writing projects do you ask new lawyers to do?
- What do you think of new lawyers’ writing abilities?
- What are your biggest pet peeves or the most common mistakes you see?
- What do you think of new lawyers’ ability to manage writing projects?
- What are some changes or additions to law school legal-writing instruction you would recommend?
What I learned
The most important thing I learned was that the writing new lawyers are asked to do varies widely—much more widely than I realized, especially when the new attorneys work for publicly funded or public-interest organizations. The building blocks of legal writing in first-year courses are objective analysis (often in the form of a memo) and persuasive argument (often in the form of a brief). But new lawyers are asked to do many, many kinds of writing. I will describe some here.
Many attorneys assign these kinds of projects:
- Traditional research memos, email memos, email correspondence, case summaries, CLE or presentation papers, PowerPoint presentations, editing others’ writing
And within certain practice areas, the following:
- Administrative law: correspondence with complainants and complainees, demand letters, petitions, discovery documents, motions, settlement agreements, closing arguments, enforcement orders, administrative rules
- Civil litigation: demand letters, petitions, discovery documents, pre-trial motions, trial motions, proposed orders
- Criminal cases: pre-trial motions, trial motions, proposed orders
- Judicial writing: bench memos, recommendation memos, draft judicial opinions, one-page assessments of a case, summaries of grant-worthiness of a petition, oral-argument questions
- Legislative work: statutory reports and history documents
- Web-based legal advice and information for nonlawyers
Improvement
According to my consultants, some new attorneys could focus better on their readers. They should know—or find out—what the reader knows and doesn’t know, what the reader wants, and what the reader needs.
Some new attorneys could be better at managing projects and should check in after completing some research, ask informed questions, and stay in touch. They should communicate to avoid producing something that wasn’t wanted.
In fact, I learned that finding the right amount of checking in and following up is a small but recurring problem—certainly understandable behavior by novices who don’t know much about the law or the way the employer’s organization works. And new attorneys may hesitate to ask questions for fear of looking uninformed. As a result, many of my consultants told me that they have built-in systems or policies for checking in and following up.
At the word and sentence level, new attorneys sometimes write in a style that is wordy, complex, and poorly organized. They can do better, my consultants said, at focusing on concision and organization to save the reader time and effort:
- State the point, conclusion, or recommendation early or right up front.
- Use headings to enhance skim-ability.
- Edit for concision: remove unnecessarily formal or complex words, reduce legalistic tone, manage sentence complexity and length.
Occasionally, new attorneys over-qualify their conclusions or hedge too much—they may be worried about taking a strong position. My consultants encourage new attorneys to be bold and let the senior attorney ask questions to test the conclusion.
Recommended changes
The most common recommendations for changes or additions to the curriculum for first-year legal writing were these. More—
- Quick-turnaround, short-response projects, particularly by email
- Practice editing your own or someone else’s writing
- Opportunities to work with forms, models, and templates
- Opportunities to practice creativity in legal analysis (assign factual scenarios and legal standards that don’t fit a clear-cut analysis, but that could be resolved with some creative thinking)
- Practice with statutory interpretation
- Transactional assignments
- Practice going beyond prediction or conclusion (ask them, “how do we win?”)
Ultimately, the most important thing I learned is that the new attorneys’ writing is not terrible or weak. It is generally good, is rarely poor, and is sometimes excellent. That was wonderful to hear.