Category Archives: Law Practice

What I wish I’d known about legal writing

1. I wish I’d known that law was a writing profession.

I came to law school thinking law practice was an oral profession. I pictured myself in court, making an argument to the jury or to the judge. I pictured myself seated across the table from another lawyer, negotiating a deal. I pictured myself in my office, meeting with a client to give advice. Sure, lawyers do those things.

But mostly, they write.

Lawyers are professional writers. They get paid to produce quality written work that is subjected to serious scrutiny. I wish I’d known that.

2. I wish I’d known that becoming a good legal writer would take years.
I thought I was a good writer in college. I also thought the basic training I received in law school would enable me to write well in practice. I was wrong.

In Outliers by Malcolm Gladwell, he reports on a theory of developing expertise. The theory suggests that it takes 10,000 hours to develop expertise in a particular area. If the theory is right, it certainly applies to legal writing. So if you work 2000 hours per year, and 1000 of those hours are spent writing, becoming an expert legal writer would take you 10 years. That’s a long time.

But it’s not enough to just do the skill for 10,000 hours. You need to work at it—study, learn, and implement what you’ve learned. If you don’t study your craft—if you just write on auto-pilot—it’ll take you more than 10,000 hours. And if you write for fewer than 1000 hours per year, it’ll take you more than 10 years. It could take you 15 or 20. I wish I’d been aware of that long haul.

As an aside to the law students and young lawyers reading this, may I say that I sometimes hear from senior attorneys that law students and young lawyers are ineffective legal writers. This bothers me because it’s unrealistic to expect high-quality legal writing from novices who have spent far fewer than 10,000 hours practicing legal writing. I believe these often misguided complaints arise from two causes: First, some complainers are not expert legal writers themselves and are not in a position to fully judge expert legal writing. Second, some complainers have forgotten how ineffective and inexpert their own legal writing was when they were novices.

So hang in there, young lawyers.

3. I wish I’d known that time pressure would be a significant obstacle to good legal writing.
Law is a busy, demanding profession. Many lawyers feel compelled or are compelled to take on more work than would be ideal. The heavy workload impinges on effective legal writing.

Let’s take editing as an example. If your writing is less than expert, it might be because you don’t know how to edit. Or it might be because you know how to edit, but you’re too lazy to edit. But most often it’s probably because although you know how to edit and you’re hard-working, you don’t have time to edit. Editing is what makes weak writing good and good writing great. But in a busy law practice, careful editing often has to be sacrificed.

4. I wish I’d known about the best sources on good legal writing.
I didn’t own a book on legal writing until I quit practicing law and began teaching legal writing. How could that be? If I’d studied journalism, I would’ve known about and acquired books on writing style. Likewise if I had studied English composition. But I finished law school and entered a writing profession without a single source on legal writing in my library. Sure, I read The Elements of Style by Strunk and White. I read On Writing Well by William Zinsser. But I read no books on legal writing.

Given what was available when I graduated from law school in 1989, I wish I’d had these sources:

The Texas Law Review Manual on Usage and Style
A Dictionary of Modern Legal Usage, by Bryan A. Garner
How To Write Plain English, by Rudolf Flesch

Somebody should’ve given me one of these as a graduation gift.

Ultimately, I simply wish I had taken the skill of legal writing more seriously. You’re forewarned.

The biggest impediment

The biggest impediment to better legal writing isn’t the lack of quality instruction in law school.

It’s law practice.

Deadlines. Time limits. Conventions. Fear. Supervisor expectations. Local rules. Forms and templates. Money. Inertia. Complacency.

All these prevent lawyers from taking the appropriate time to polish their writing. For example, even if a lawyer has four weeks to write a brief, that’s not enough because the same lawyer has three other briefs, four memos, and eight letters to write at the same time, not to mention the 150 e-mail messages to read and respond to.

Revising, editing, and rewriting are what make mediocre writing good and good writing great, but lawyers don’t have enough time for them.

David Mellinkoff captured the nature of the busy law practice and its effects on legal writing:

Sometimes urgency forces precedence over everything else. Get it done. Get something out. We’ve got to file. This is a “rush.” The writer is under pressure to take shortcuts. This has become the normal environment of most legal writing, and is one of the principal reasons why so much of it is so bad.

David Mellinkoff, Legal Writing: Sense and Nonsense 116 (1982).

The unfortunate fact is that this kind of rushed approach often gets the job done—it’s often good enough or has to be. One reason it gets by is that many of us have been writing this way—under a deadline and without sufficient time devoted to polishing—since college:

Many young lawyers seem to have survived writing assignments in college and law school (with the exception of law-review writing) by turning in what were basically first drafts, lightly edited to fix glaring errors. They are unprepared to regard editing as a serious, laborious activity.

Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 298 (2003).

And so practicing lawyers continue to churn out mediocre or poor writing; the exigencies of modern life and law practice almost require it.

Don’t Rest on Plateaus

Are the legal-writing classes you had in law school the last writing training you’ll need for your career?

If you’re a bankruptcy lawyer, was a law-school class the last bankruptcy training you’ll need?

That’s your answer. Legal writing is like any skill or substantive topic: there’s always more to learn, and there’s always room for improvement. But sometimes, busy legal writers rest on plateaus. We produce good-enough legal writing, and we’re comfortable on that plateau, so we stay. Here’s some advice for moving on.

1. Admit you have room to improve. When I was a full-time lawyer, I thought I was a good writer, above average. Now I realize I hadn’t been that good. I’d been quite mediocre. I was poorly educated about the standards of high-level professional writing, and I was ignorant of my own limitations. Was I unique? Probably not. Many lawyers believe themselves to be good writers, above average within the profession, but I say this: The first step to becoming a good legal writer is to admit you have room to improve.

2. Get some references. Once you’ve admitted you have room to improve your writing—that you’re resting on a plateau—start learning. A great way to raise your writing IQ is to consult the experts. When you have a question about writing, don’t rely on half-remembered “rules” from high-school English. Look it up. But where? Here are two websites I like:

But if you’re serious about legal writing, you’ll need some reference books, and here are three I recommend:

The Redbook, by Garner
The Texas Law Review Manual on Usage and Style
Just Writing: Grammar, Punctuation, and Style for the Legal Writer, by Enquist & Oates

Your goal is to have reliable references handy to answer questions. Other professional writers consult writing references, and lawyers should, too.

3. Read writing books. If you’re serious about getting off that plateau, you’ll have to do more than consult references. You’ll have to study the principles of good writing and good legal writing. But how, when you’re busy? Set a goal to read one book on writing every year. Here are some I like

Lifting the Fog of Legalese, by Kimble
The Lawyer’s Guide to Writing Well, by Goldstein & Lieberman
Writing with Style, by Trimble.

These books are great sources of writing knowledge, and they’re also well written. Reading the best books teaches you writing and exposes you to good writing.

4. Practice what you learn. You’re reading about writing and you’re consulting writing references. Now practice what you’re learning. Of course, for any working lawyer, writing practice is part of the job: you’re writing all the time. Yet we tend to rest on plateaus—we write as we always have, with the same habits, the same limitations. (That’s why studying writing is so important. Practice without study is usually just repetition.) So experiment with things you’re learning. Try new techniques and master new approaches to writing.

5. Edit better. We all know editing is crucial to good writing. Most of us can’t produce high-quality writing in one draft (or even two). We must edit, so here are some suggestions for getting off the editing plateau.

Leave plenty of time, even though it’s hard to do. How much? One pro recommends half the time on a writing project. Debra Hart May, Proofreading Plain and Simple 46 (1997).

Use more than one technique when editing: Do you edit on the computer screen? That’s fine, but it’s not enough. Do some editing on a hard copy, too; we read and react differently to screen text and printed text. Do you read the text out loud? That’s great: you’re using your ears, not just your eyes, to help you edit. Now go further and have a trusted colleague read it and suggest some edits. Do you read the document in reverse, from the last sentence to the first? Good. This technique tricks your mind, so you’re not familiar with the text; familiarity leads to poor editing. Now read only the topic sentences. Next read the opening and closing paragraphs.

Mediocre writing becomes good writing only through editing.

6. Accept critique. Here’s the hardest part: seek and welcome critiques and candid suggestions for improving your writing. This one’s tough because it’s natural to be defensive about your writing—maybe even insecure. I know I am. But when I avoid critique, I don’t improve much. I rest on a plateau. So open yourself to honest critique. Find a trusted colleague, friend, or supervisor, someone whose judgment and writing you respect. Then ask for suggestions, and take them to heart. The best writers are open to critique.

Now move off that plateau.

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