Category Archives: Law Practice

Lawyers are Professional Writers

For three main reasons, you, as a lawyer, are a professional writer.

1. Lawyers are paid to write.
That takes you out of amateur status. And most of us don’t write a little. We write a lot. I remember when I began working at a law firm that I was surprised at how much writing there was. “Gosh,” I thought. “Why didn’t anyone tell me I was going to be doing so much was writing?” If writing is a significant part of your job, you’re a professional writer.

2. Lawyers’ writing deals with complex topics and affects rights, money, and liberty.
Usually, there’s a lot riding on your writing: your client’s money, your client’s rights and, in the criminal setting, your client’s liberty or even life. If writing with that kind of pressure weren’t enough, there’s the complexity of the subject matter. The law is complicated, and writing about complex topics with a lot at stake is demanding work. Grasping the complex subject matter and writing about it effectively are the hallmarks of a professional writer—a lawyer.

3. Lawyers’ written work is subject to serious scrutiny.
Legal writing gets scrutinized and criticized (not to mention satirized). Your legal documents can end up in front of multiple audiences, and each has a chance to evaluate your writing.

  • Your supervisor, who can hire and fire, promote and demote, gets to inspect your writing.
  • Opposing counsel gets paid to find your mistakes—sort of a professional writing critic.
  • Your client, the one paying you to write, can examine your writing, of course.
  • And in litigation the judge is, well, judging it.

Writing getting that much scrutiny is professional writing.

Convinced? I hope so. If not, go read The Lawyer’s Guide to Writing Well, by Goldstein and Lieberman. It convinced me lawyers are professional writers. Once you’re convinced, you can take some steps to act like a professional writer. That idea is a theme of The Lawyer’s Guide to Writing Well: lawyers are professional writers, and they should act like it.

Act like a professional writer.
Professional writers consult writing references, and lawyers should, too. I recommend The Redbook, by Garner, but there are others: Just Writing by Oates and Enquist and the Texas Law Review Manual on Usage & Style. Once you’ve started using a writing reference, try to get others to do it. Having a reliable and consistent source for answering writing questions will raise the writing IQ of everyone in your office.

Professional writers continue to learn. For lawyers, that could mean attending a legal-writing CLE. Better yet, you could volunteer to present a legal-writing CLE. A great way to improve your writing knowledge is to write a paper about legal writing and then teach a class about it. Continuing to learn could also mean reading books about writing. I’ve recommended many in this column, but here are two gems I’ve never mentioned: On Writing Well by Zinsser; Legal Writing: Sense and Nonsense by Mellinkoff.

Professional writers use editors. Lawyers need them too. You have several options, from more expensive to less expensive. You could hire an in-house editor or writing specialist (expensive). You could have every lawyer in the office attend training on copy editing (moderate). Or you could ask a trusted colleague to edit your writing (less expensive). Whatever you do, remember what professional writers know: bad writing becomes good and good writing becomes great only by editing.

Here’s one more idea: start a writing group. Select or invite a group of lawyers to meet over lunch once a week to discuss good writing. Have everyone take a turn offering a document for the group to read in advance and then discuss at the meeting. You’ll get two benefits: the writing IQ of everyone in the group is bound to increase, and you’ll learn that accepting constructive feedback is a great way to improve your writing.

And improving is part of being a professional writer.

Citation form: The Tyranny of the Inconsequential

I wrote about this before, in 2006, but here I go again.

“Mastering the arcana of citation forms . . . is not a productive use of judges’ or law clerks’ time. The purpose of citations is to assist researchers in identifying and finding the sources; a form of citation that will serve that end is sufficient. In addition, the form of citation should be consistent to avoid the appearance of lack of craftsmanship and care.”

Judicial Writing Manual 24 (Fed. Jud. Ctr. 1991).

I agree with this quotation entirely. But it doesn’t reflect reality. Lawyers, especially judicial clerks, will judge you by your citation form, as inconsequential as it may be.

I call it the tyranny of the inconsequential.

Before I offer 3 exhibits to support my point, let me be clear: I’m talking only about citation form, not citation substance. For example, in a case citation, if the case name is wrong, if the page number is wrong, if the year is wrong—that’s a problem. Those are substantive mistakes. I’m talking about form.

For example:

  • Whether you leave a space between F. and Supp.
  • Whether you use “and” or “&”
  • Whether you spell out “Gender” or abbreviate it “Gend.”
  • Whether you carry out 3 digits (343-344) or 2 digits (343-44)

These matters of form are not substantively relevant, I say. They shouldn’t matter, but they do.

Why?

  • Because citation form is a wrong-or-right matter, without subjectivity, it’s an easy proxy for assessing the caliber of a piece of writing.
  • Because you create citation forms by consulting an authority (a citation manual) and applying rules, it’s sort of like legal analysis.
  • Because most lawyers consider themselves nitpickers and strong writers, the weight given to citation-form errors is exaggerated.

Exhibit A: A senior attorney threatens to withhold an offer from a summer associate because her citation form is poor. In reality she is simply using ALWD Manual citation form and the “mistakes” are just different abbreviations, like Assn. vs. Ass’n.

Exhibit B: A students reports that “being on law review improved my writing” but when asked to specify says, “because it helped me master citation form.”

Exhibit C: A judge says, “if the writer made a mistake in citation form, then the writer probably made other, substantive mistakes.”

Improving your writing throughout your career, part 7

Part 7 of 7—Accept critique

Now 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 critiques, I don’t improve much. I rest on a plateau.

So open yourself up 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.

Good luck.

Improving your writing throughout your career, part 6

Part 6 of 7—Edit better

We all understand that editing is a crucial part of the writing process. Most of us (and don’t assume you’re the exception) can’t produce high-quality writing in one draft (or even two). We must edit, and here are two suggestions for doing it better.

First, leave plenty of time, even though it’ll be hard to do. One expert on legal writing, Bryan Garner, has acknowledged that “the modern practice of law does not tolerate the type of revisory process necessary to produce a polished product.” Garner’s Dictionary of Legal Usage 533 (3d ed. 2011). That may be true, but you should still try to give yourself more time to edit. How much time? One pro recommends half the time on a writing project. Debra Hart May, Proofreading Plain and Simple 46 (1997). Can you afford that? Can your clients? It’s up to you, but more editing means better writing.

Second, 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.

Next: Accept critique

Improving your writing throughout your career, part 5

Part 5 of 7Practice what you learn

You’re reading about writing and you’re consulting writing references. You’re becoming an informed legal writer. 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 all tend to rest on plateaus—we write in the same way we always have, with the same habits, the same mistakes. 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.

Through study and practice, you’ll become a better editor of your own work.

Next: Edit better