Category Archives: Improvement

Gathering Opinions on New Legal Writers

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.

 

Developing Editorial Judgment

It’s more than “read a lot” and “have a good ear.”

At a recent CLE talk, I said that implementing a certain technique would require “exercising editorial judgment.” A lawyer asked, “How do you develop editorial judgment?” In this column, I try to answer that question.

Note: This column is about words, sentences, paragraphs, and documents, not about substance and content, which are highly important in legal writing: Should I mention this fact? Should I include this topic [information, explanation, analysis, argument, counter-argument, policy, etc.]? Does my reader need more background—or less? And so on.

When you’re writing or editing a document for yourself or someone else, you end up making countless editorial decisions:

  • Should I use a semicolon or a dash here?
  • Should I use conversely, however, or but?
  • Is this sentence too long? If so, where should I break it?
  • Is this paragraph too long? If so, …
  • Should I use three levels of headings and subheadings—or only two?

And so on. We make most of these decisions instinctively, yet in doing so, we may not realize that we’re relying on editorial judgment: a storehouse of knowledge about the way writing works. Plus, factored into all these judgments are the context, the audience, the constraints, and the goals of the writing. That’s a whole lot of judgment to exercise.

I’ll focus on developing good editorial judgment as to the words, sentences, paragraphs, and documents you write. Here are my five key recommendations:

Look things up.

Whenever you have even a small or innocuous-seeming question or concern about words, syntax, sentences, grammar, punctuation, or style, consult a source. The internet works (I like “Grammar Girl” Mignon Fogarty[1]), but I recommend keeping at hand some good reference manuals—books—including references specific to legal writing. I’ve cited five good ones in the footnote.[2]

Read about writing.

I often see “read good writing” offered as advice for learning to write well. It’s good advice. But the reading most of us do is to learn content or to be entertained. The kind of reading you should do to improve your editorial judgment requires more effort, more focus, more planning. For me, it’s not reference manuals like those I mentioned above, but engaging, well-written books about writing well. These books inform and strengthen your editorial judgment. I’ve listed five in the footnote.[3]

Write a lot.

This idea is built-in for most legal writers. The more writing you do in a professional context, the more experience you gain, and experience contributes to editorial judgment. But if all you do is write a lot, without looking things up and without reading about writing, you tend to rest on plateaus; you write the same way you always have—particularly if you’re operating with harsh deadlines and heavy workloads. So write a lot, but improve and inform your writing judgment by looking things up and reading about writing.

Edit, edit, edit.

Subject every serious writing project to edits aimed at effectively and precisely conveying the content, clearly presenting that content in an organized fashion, and thoroughly improving the text for concision, clarity, and correctness. You could develop editing protocols and practice them consistently. You could create editing checklists and revise them over time. You could work at completing drafts early so you have more time to edit—and more time away from the document, which always improves editing.

Seek critique.

Open yourself up to suggestions, comments, and critiques of your writing offered by those you trust and whose writing you respect. One sure way to stymie your editorial judgment is to write the way you always have without seeking input from others.

Those are my best recommendations. Good luck.

_____

[1] https://www.quickanddirtytips.com/grammar-girl/

[2] Deborah Bouchoux, Aspen Handbook for Legal Writers; Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer; Bryan A. Garner, Garner’s Dictionary of Legal Usage; Bryan A. Garner, The Redbook: A Manual on Legal Style; Texas Law Review, Manual on Usage & Style.

[3] Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well; Ross Guberman, Point Made; Ross Guberman & Gary Karl, Deal Struck: The World’s Best Drafting Tips; Wayne Schiess, Legal Writing Nerd: Be One; Richard Wydick & Amy Sloan, Plain English for Lawyers.

Great new book

The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing

by Diana Simon

Professor Diana Simon of the University of Arizona James E. Rogers College of Law has written an entertaining and informative guide to grammar and punctuation for legal writing. I’ve read it cover to cover, and I loved it. It’s a reference—but it’s more. It has solid explanations (the why of grammar and punctuation)—but it has more. It recounts the stories—the real cases—that show that grammar and punctuation matter.

  • The claim dismissed because of the passive voice
  • The deportation case that hinged on a semicolon
  • The failure of a complaint because of apostrophe errors

It’s readable, practical, and engaging. I recommend it to legal-writing faculty, practicing lawyers, paralegals, judges, judicial clerks, and anyone who cares about legal writing.

Look for my book review forthcoming in Legal Communication & Rhetoric: JALWD in spring 2023.

The (Not too Serious) Grammar, Punctuation, and Style to Legal Writing is published by Carolina Academic Press.

 

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.

Sentence length

Managing averages and maximums

My books: Legal Writing Nerd and Plain Legal Writing

Legal writing has a bad reputation for long sentences. Why?

Maybe reading cases in law school starts us off poorly. After all, the cases in casebooks weren’t chosen because they were beautifully written. Plus, legal writers often face short deadlines and might end up sacrificing some editing. And legal writers address complex matters—matters requiring explanation, qualification, and clarification.

But we can do better.

First, we can let go of the thought that a concept and everything that qualifies that concept must be in a single sentence:

[Lawyers] think that in order to achieve clear understandings, they must stuff every related idea into a single sentence between an initial capital letter and a final period. They are, of course, wrong.[1]

Second, we can educate ourselves. Here’s what the experts say about average sentence length and maximum sentence length.

Average sentence length

What’s a good average length? The experts say—

  • “below 25 words”—Richard Wydick[2]
  • “about 22 words”—Laurel Currie Oates & Anne Enquist[3]
  • “about 20 words”—Bryan Garner[4]

That’s the average—some shorter, some longer. All the experts quoted above agree that variety in sentence length is important. And when you write about complex subjects, push the length down: “The basic rule is this: The more complicated your information is, the shorter your sentences should be.”[5]

You can program Microsoft Word to tell you your average sentence length. Go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spell-check, you’ll see a display that includes your average sentence length, along with other information. (Note: a document with legal citations will usually show a shorter-than-actual average sentence length because of all the abbreviations and periods.)

Now ask yourself these questions: Is my average sentence length appropriate for the subject and the audience? Are all the sentences about the same length, or do I have good variation? Do I have too many short sentences, so that my writing is choppy? Based on your answers, edit your sentences.

Maximum sentence length

How many words is too long for one sentence? It’s a tough question, and the experts don’t offer much guidance. Here’s mine.

Are you confident you could write a readable, clear sentence of more than 45 words? I’m not sure I could, so that’s the limit I apply to my own writing. Of course, some gifted writers can create long sentences that are pleasant to read; they usually use lengthy parallel phrases in a series. That technique works well in literature. But for most of us doing legal writing, staying under 45 words will work better. When I write a single sentence that goes over 45 words, I usually break it up.

But it’s not realistic for a busy legal writer to count words while writing. When you’re writing your first draft, let your creative mind produce the text without interference from your internal editor. Let the text—and the ideas—flow.

Then shorten long sentences on the edit. When you encounter a single sentence that bogs you down, tires you out, or annoys you, highlight it and look at the word count. If the word count is over 45, re-work the sentence or break it up.

Those are the three goals for sentence length: readable average length, variation in length, and nothing too long.

My books: Legal Writing Nerd and Plain Legal Writing

_____

[1] Ronald L. Goldfarb & James C. Raymond, Clear Understandings: A Guide to Legal Writing 47 (1982).

[2] Richard Wydick, Plain English for Lawyers 36 (6th ed. 2019).

[3] Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 523 (5th ed. 2010).

[4] Bryan A. Garner, Legal Writing in Plain English 47 (2d ed. 2013)

[5] Steven D. Stark, Writing to Win: The Legal Writer 46 (2012).