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9 Failings of Legal Writing (& 4 Recommendations to Fix Them)

“Lawyers have two common failings. One is that they do not write well, and the other is that they think they do.”

This line is from Wayne Schiess’s (of Legalwriting.net) “Legal Writing Is Not What It Should Be.” It focuses on producing better legal writers at the law student and new lawyer level. The 9 Failings are:

  1. The writing high school and college students do is usually self-expression or knowledge-telling, not analysis.
  2. Legal writing courses must cover legal research, the conventions of legal English, objective written legal analysis, and persuasive written legal analysis; this leaves little time to focus on fine points and writing style.
  3. Law schools do not adequately train students in legal drafting.
  4. Lawyers imbibe lots of poor writing from judicial opinions and other required reading.
  5. Lawyers rely on form documents that are poorly written.
  6. In writing legal analysis, many digest the authorities superficially; in drafting agreements, many understand the transactions superficially.
  7. The time pressure of law practice doesn‟t allow enough revising and editing to produce a quality product.
  8. Some lawyers have a misguided sense of professionalism, leading to a formal writing style that ignores audience needs.
  9. Many lawyers are complacent, believing their writing is above average or better.

Professor Schiess’ s recommendations are as follows:

  1. Law school’s first-year legal-writing programs should continue to focus on written legal analysis – intensely and thoroughly – and should also include mandatory instruction in legal drafting. (Fine points of style, rhetoric, and plain language should be left to upper-division writing courses.) Those who teach these crucial skills should be treated like serious professionals.
  2. Organizations that hire new lawyers, like courts, firms, agencies, and companies, should re-quire that all new lawyers receive training in edit-ing and the conventions of legal English. They could also hire editing specialists.
  3. State bar associations should require legal-writing training as part of the mandatory continuing legal education. Many states require ethics credit as part of continuing legal education so why not the crucial skill of legal writing?
  4. Individual lawyers must take more responsibility for their own legal-writing skills and must constantly seek to improve. Lawyers should read a book on writing or legal writing once a year, open themselves up to honest critique, acquire and con-sult the best sources on writing, and attend a continuing legal-education course on legal writing.

Producing clear, effective writing is hard work, and producing clear, effective legal writing is harder still. In that way, legal writing is like any other valuable skill: playing the piano, running a marathon, or performing heart surgery. It takes practice, lots and lots of practice. The recommendations here aim to give students and lawyers more chances to practice, more chances to put in hard work. Thus, the first recommendation focuses on law school and on taking advantage of the chance to teach more and do more to emphasize legal-writing skills. The second recommendation suggests that legal employers do more to enable lawyers to get the crucial practice and training they need to become proficient legal writers. The third, somewhat paternalistically, imposes legal-writing practice and training on lawyers through the state bar. Ultimately, though, the fourth recommendation acknowledges we lawyers are responsible for our own legal writ-ing. We are responsible for putting in the hard work and practice necessary to master the skill of legal writing.

It’s a long read (24 pages), but there are a number of good points made throughout and the 9 Failings are extensively broken down and detailed.  Personally, I find it odd that more lawyers don’t spend time practicing and refining their writing skills. I realize that between getting new clients, communicating with clients/lawyers/staff/judges, networking, and actually working – taking time for any sort of CLE falls far down the priority list. However, writing is the primary form of communication for a lawyer. Whether it be to a judge, another lawyer, or a client – most of the time a lawyer is going to be communicating to them through writing.  It’s worth it to take the time to improve one’s writing skills and ensure that in written communications  one comes comes across as clear, concise, and professional.

 

Download the entire article here. 1

Via Raymond Ward at the (new) legal writer.

(1) Schiess, Wayne, Legal Writing Is Not What It Should Be (2009). Southern University Law Review, Vol. 37, p. 1, 2009. Available at SSRN: http://ssrn.com/abstract=1661130

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About Keith Lee

I'm the founder and editor of Associate's Mind. I like to write, talk, and think about law, professional development, technology, and whatever else floats my boat. I practice law in Birmingham, AL.
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