In my summer-term Advanced Legal Writing course, I ask students to write an essay about legal writing. Here is one of my favorites from this summer.
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“Wow. You’re surrounded by a lot of positive support.”
So says Mike Myers’s character to Nicole Kidman’s conceited child alter-ego when she boasts about how everyone tells her she has a “voice like an angel” in the 1993 Saturday Night Live skit “Philip the Hyper-Hypo.” In much the same way, I’ve been praised for my writing ability all my life. I made top scores in English classes throughout my grade school career and aced every standardized test placed in front of me (including a perfect score on the English portion of the ACT). In high school I fancied myself a budding novelist and churned out countless pages of unfinished fantasy stories, much to the delight and encouragement of my bibliophile mother. Imagine my surprise, then, when I got my first couple of writing assignments back in my first year legal writing class and made a startling discovery: I suck at this.
The problem, as I slowly came to realize, was largely that my overconfidence had caused me to become embarrassingly lazy. I bridled when others tried to critique my work, and I typically churned out writing, whether it be a story for my own amusement or a paper for a college course, in one sitting, with little editing or reviewing. I may have been an adequate writer, but I was an abysmal editor, and my apathy in this area was particularly damaging when it came to a technical, detail-driven field like law. I considered citations in particular to be the bane of my existence; nothing could possibly be so aggravatingly dull as checking the correct form of a citation.
Besides, I wanted to get my point out and move on, not spend time considering if what I’d written was the best way to get that point across or whether it was properly supported. As such, my work in that first-year writing course was consistently poor, and my frustration grew each time I got back another abysmal assignment. Despite studying the comments my professor had scratched out in angry ink, I simply could not get the hang of it. When time came to take my writing seminar, I found that my confidence in my writing had departed.
I now believe that lawyers and judges who say that there is no such thing as legal writing—that anyone who is a good writer will be good at legal writing—are somewhat like wealthy people who say money isn’t important. They have been steeped in the field for so long that they are blind to their own privilege and forget that to the average person, legal writing is something of a foreign language. It generally requires special knowledge to be able to digest it, and it takes considerable skill and effort to be able to produce it. Those lawyers take their ability to read and write legalese for granted and forget that they were not able to craft a perfect brief on their first try. Legal writing is a specialized form of the craft that requires special training and relies on skills beyond those required by less technical styles of writing. Stephen King may be able to produce a best-seller in his sleep, but that does not mean that he would excel at legal writing. Being a strong writer certainly is a good starting point and is necessary for good legal writing, but it is not sufficient. You must also possess an array of other skills: you must be able to edit your own work, be detail-oriented, master the fine art of being concise, and always be mindful of your audience.
This last one, I think, is one of the most difficult for someone used to writing fiction. In writing research papers and other academic works, it is important to consider the readers and try to grab and maintain their interest. However, generally speaking, you are not tailoring the paper to one specific audience. In fiction-writing, consideration of the reader is even farther removed; you strive to paint a picture that will be as vivid to the readers as it is to you, but you do not generally have to convince them of anything. You focus on what you deem important. Yet in legal writing, the focus is almost always on what the reader will find important (and as such can shift depending on the intended audience). It can be very difficult restraining yourself from adding comments that are of little value to the discussion, and likewise it can be quite tedious focusing on issues that are of little interest to you but of great interest to your superior or client.
Now, part of me wishes someone had given my younger self the warning Myers gave the bragging Kidman: “I gotta tell you, when you get older, people aren’t gonna support you so much.” Positive support is great and necessary for encouraging a child to excel, but so is constructive criticism, and as an adult lacking the discipline required to master legal writing, I wish I had been subjected to slightly more of the latter.
(2d ed., Oxford U. Press 1995).
(Harper & Row 1979).