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.

Legal Writing at Texas–a summary

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The legal-writing program at the University of Texas School of Law has been transformed in the last 20 years–mostly in the last 8. We had a student-faculty ratio of nearly 200 to 1, three pass-fail credits (later cut to two), heavy reliance on TAs for instruction, 1-year contracts, and exceptionally low salaries.

We now have a student-faculty ratio of about 50 to 1, four graded credits, instruction exclusively by full-time professional legal-writing teachers, rolling 3-year contracts, and a starting salary above the national and regional averages.

Plus, our program is now the David J. Beck Center for Legal Research, Writing, and Appellate Advocacy. Learn more about the Beck Center and the Beck Center faculty here.

Citation form: The Tyranny of the Inconsequential

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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.”

Law schools teach IRAC?

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I’m reading a book about legal writing that advises lawyers to avoid using the IRAC model for a legal memo:

Many law schools teach IRAC (Issue, Rule of law, Analysis, and Conclusion) as the format for memoranda. (The acronym is not only wrong, it’s also confusing because some schools teach the C in IRAC as Cases.) However, IRAC makes the reader wait until the end of the paper to learn the all-important conclusion. Avoid IRAC and put your conclusion in the opening of the paper.

The assertions here are wrong in several ways:

  • Many law schools teach IRAC as the format for memoranda.

An initial question: what does the author mean by “format”? The format of a traditional memo is usually this: Heading, Issue Statement, Short Answer, Facts, Discussion, Conclusion. How could IRAC be used for the format? The author probably means “organizational structure,” not format.

Another question: How could IRAC be the organizational structure of a memo—a whole memo? A memo has many parts, some small and formal, with little organizational structure, and others long and analytical, with lots of organizational structure. The author is not as precise as I’d like and probably means this: Many law schools teach IRAC as the organizational structure of the Discussion section of a memo.

Now to my main point. I predict it would be difficult to find even one law school teaching IRAC as the organizational structure for the Discussion section of a memo.

IRAC might be taught as the structure for an exam answer, but not for the Discussion in a memo. Modern legal-writing teachers, with few exceptions, left IRAC behind long ago. If any acronym is used in “many law schools” to teach the organizational structure of the Discussion section of a memo, it’s probably CREAC (Conclusion, Rule, Explanation, Application, Counter-analysis).

By the way, there are many variations on CREAC (like PREACC, CREXAC, SLACCs, TRuPACC, CRuPAW, and more), but they all represent the same core, structural concepts: state your conclusion first, then state and explain the controlling legal principles, then apply the principles to your problem.

In fact, if I’m going to insist on precision and accuracy, CREAC isn’t applied strictly to the Discussion, but to an analysis of a legal issue. So to make the author’s statement accurate, it would need to say this:

Many law schools teach a form of CREAC as the organizational structure for analyzing a legal issue.

Now to some other points. The author also says this:

  • Some schools teach the C in IRAC as Cases.

My opinion: Unlikely to be true. There’s a misunderstanding here somewhere, because the structure “Issue, Rule, Analysis, Cases” makes no sense.

  • Avoid IRAC and put your conclusion in the opening of the paper.

With CREAC, that is exactly what you do—put the conclusion first.

But now I must quibble: you put the conclusion at the beginning of an analytical discussion, not at the beginning of the paper. The beginning of the paper (memo?) is usually the Issue Statement. The author isn’t precise and seems to be using “memo” and “paper” interchangeably; the author also ignores the difference between a memo and the analytical discussion that is one part of a memo.

Why did I write this post?

Am I just being snotty and picky? Maybe so, but the author has hit one of my pet peeves: legal-writing experts who don’t teach first-year legal writing, but who criticize or comment ignorantly about teaching first-year legal writing.

This author now joins two other legal-writing experts I know who comment negatively about how legal writing is taught to first-year law students. Yet all three have never taught legal writing to first-year students and all three make generalizations, uninformed assertions, and incorrect statements about the subject.

Venting done.

Whatcha gonna do, 1 space or 2?

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How many spaces after a period, one or two?

I’ve been asked to referee disputes on the subject, been urged to publicize the “right” answer, and been chastised for recommending the “wrong” answer. Lawyers tend to feel strongly about spaces, so I hesitate to weigh in. Let me start by acknowledging there are arguments on both sides.

If you put two spaces after periods, you have several arguments on your side. There’s the long tradition: that’s the way we’ve always done it (at least since the invention of the typewriter). You also have your own training to back you up: that’s the way we were taught (and still are, as I learned when my seventh grader took typing last year, or what is now called “keyboarding”). You might rely on widespread practice: that’s what everyone does (or at least the lawyers you know). Or you might say one space looks bad: it makes the document seem crowded.

If you put one space after periods, you have arguments on your side, too. One space is what the pros do: professionally published texts, like books, magazines, and newspapers mostly use one space after periods. For example, Austin Lawyer uses one space. You could point out that two-space practice is a vestige of the typewriter, with its mono-spaced fonts, and no one uses typewriters or mono-spaced fonts like Courier anymore (at least they shouldn’t). Or you might argue that one space is becoming the modern, standard practice (which it is, although it isn’t catching on quickly in law practice).

With arguments on both sides, I’ve found it difficult to persuade anyone on this issue. I tell my students that while in law school, choose a preference and be consistent with it. Then, in practice, conform to the expectations of your employer.

My own preference? I’m a one-space guy, and here’s why.

First, two-space practice really is a vestige of the typewriter, and I want my word-processed documents to look neat, modern, and professional. I don’t find a one-space document crowded; rather, I find a two-space document “gappy.” What are all those little cavities of white space?

Second, one-space practice really is the trend for professional writing. Search the topic on the Web if you doubt it. It’s just that lawyers are behind. The truth is that in professional writing, we are in the middle of a long, slow transition from two spaces to one space, and it really isn’t worth fighting it.

Third, those who know—the experts—prefer one space:

“One space is the custom of professional typographers and consensus view of typography authorities.” Matthew Butterick, Typography for Lawyers 42 (2010).

“Like most publishers, Chicago advises leaving a single character space, not two spaces, between sentences . . . .” Chicago Manual of Style 60 (15th ed. 2010).

“[T]he single space between sentences is enough to visually separate them, and two spaces creates a disturbing gap. . . . Yes, this is a difficult habit to break, but it must be done.” Robin Williams, The PC Is Not a Typewriter 13–14 (1992).

Fourth, clean-up is easy. As you know, there are plenty of places in abbreviations and citations where you want one space after a period, not two. Making sure you have one space there but two spaces after sentences is a headache, isn’t it? I use one space after sentences, so here’s all I need to do: as part of a final edit, run a search for two spaces and replace them with one. Done.

It’s still too early say two spaces is wrong for law practice since it’s so common in legal writing. But the battle for two spaces is being lost—one space at a time.