From time-to-time I review law review articles on writing, looking for skills and best practices in my own writing. I recently came across two articles on the topic:
- Legal Writing for the “Real World”: A Practical Guide to Success (PDF link) by Megan E. Boyd & Adam Lamparello
- “One of the most significant complaints among practicing attorneys is that newly admitted lawyers are not effective writers. Many young attorneys also express concern that their law school experience did not adequately prepare them to be good legal writers. This Article is designed to bridge the gap between the law school classroom and the law firm experience. In so doing, this Article is more practical rather than pedagogical, based on experience rather than theory, and founded upon “real-world” examples rather than abstract constructs.”
- The Legal Reader: An Exposé by Michael J. Higdon
- “But who is the legal reader? And, further, what is it about this person that makes her different from an ordinary read? After all, by modyfing the word “reader” with “legal,” we are necessarily conceding that the legal reader is somehow different.”
Bother are interesting reads. I enjoyed them. But at the same time, I felt as though I was going over the same ground I have read hundreds of times before. Have a strong start, avoid legalese, be concise, rely on authority, etc. Which is all fine and good. It is timeless advice. The basics. And because the basics are so important, so structurally integral to good writing, it is good to hear them again and again.
Yet the articles fail to address the fundamental question facing anyone who writes: how do I become a better writer?
Which is actually a quite simple question to answer. But simple does not mean easy. We all want tips or tricks or strategies or some other such thing to read and digest in an easy to read format that is suddenly going to make us better at whatever skill we want to improve. But that’s not how it works. “Top 10” lists or whatever are popular because they are easy to digest – not because they are effective. Rather, reading bullet point lists makes us feel as though we are digesting the main points of a topic. Receiving an executive summary so that it can fit into our schedule.
Towards the end of both articles, the authors present a series of questions for legal writers to ask themselves:
Legal Writing for the “Real World”:
- Does my brief comply with the relevant court rules?
- Do I have a powerful “Introduction”?
- Did I accurately represent the facts and law?
- Do my facts tell the story of why my client should win?
- Did I avoid unnecessary words, “fancy” words, and legalese?
- Did I avoid long sentences and paragraphs?
- Did I accurately cite authority and include pin cites?
- Did I ensure that my authority is still “good law?”
- Did I include a thorough “Analysis” section?
- Did I effectively address relevant counter-arguments?
- Did I acknowledge weaknesses in my own argument and explain why those weaknesses do not affect the outcome of my case?
- Did I proofread for spelling and grammatical errors?
The Legal Reader:
- If she had to, could the legal reader rely on this one document to answer all her questions?
- Can she discern those answers by reading the document (including its component parts) only once?
- At every point in the document, does the legal reader know where the legal writer is headed?
- Has all irrelevant and repetitious content been eliminated?
- For every legal proposition in the document, is it supported by legal authority and is relevant, trustworthy, and persuasive?
- Within the document, are there any components that are likely to generate additional questions and, if so, did the legal writer answer those questions at the very moment the questions are likely to arise?
- Is the document consistent in substance, in structure, and in language?
- Has the legal writer created a document that at least has the appearance of objectivity, meaning that it adequately incorporates other potential considerations, interpretations and conclusions?
The Legal Writing for the “Real World” articles’s questions are more of the nuts and bolts variety, while The Legal Reader asks more structural and stylistic questions. They are fine questions. Questions that you should ask yourself when you finish writing a legal document.
But they fail to get to the fundamental question behind anyone seeking to improve their writing skills: how do I become a better writer? Again, the answer is simple. But the answer is not tips, nor tricks. Rather, they are two disciplines – “to train or develop by instruction and exercise especially in self-control“:
Read significant, challenging material. Everyday.
That’s it. But you probably aren’t doing it.