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.

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.