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5. See Nancy Sommers & Laura Saltz, The Novice as Expert: Writing
the Freshman Year, COLLEGE COMPOSITION AND COMMUNICATION, Sept. 2004, at
124, 127 (discussing college freshman writing as self expression).
6. See Christine M. Venter, Analyze This: Using Taxonomies to Scaffold Students Legal Thinking and Writing Skills, 57 MERCER L. REV. 621, 638
(2006) (noting that some law students mistakenly see analytical legal writing as
a knowledge-telling task).
7. Id. at 639.
8. WAYNE SCHIESS, WRITING FOR THE LEGAL AUDIENCE xv-xvi (2003).
dents arrive at law school and tell me they have never written a
paper in college.
Even with prior training and practice in self-expression and
knowledge-telling, learning analytical legal writing will be hard.
Granted, law students tend to be intelligent and hard-working,
but many begin their legal educations without a solid foundation
for the learning of analytical writing.
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.
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Id.
Id.
See Terry Jean Seligmann, Why Is A Legal Memorandum Like An
Students Guide to Reviewing and Editing, 56 MERCER L. REV. 729,
And thats just the first semester. I hope youll see why I
havent much time for focusing on the things that would make
mediocre legal writing good or good legal writing great, like voice;
rhetoric; fine points of grammar, punctuation, usage, and style;
and sentence-level skills, like use of subordination, use of passive
or active voice, placement of modifiers and relative clauses, and
so on.
Ill frankly tell you that struggling to cover just the fundamentals of written legal analysis and then to be told that your
students cant write is a frustrating and maddening experience.
Yet it is an experience I have had, and one I try not to take personally. After all, the skill of written legal analysis is mostly
information of the sort the faculty [and lawyers and judges] has
forgotten it ever had to learn.14
Compounding the problem that those who do not teach
first-year legal writing frequently do not understand or remember the nature of the course and its limitations is the secondclass status of the legal writing course. Professor Lisa Eichhorn,
who has taught civil procedure and legal writing, commented
that her students perceptions were that legal writing is not a
real law school course.15
Then we doubly compound the problem because at most law
schools, those who teach the first-year legal writing course are
second-class citizens.16 Often, those who teach legal doctrine, legal theory, and substantive courses are tenured and well-paid,
732-37 (2005) (describing the depth and complexity of written legal analysis in
the traditional legal memorandum).
14. Douglas Laycock, Why the First-Year Legal-Writing Course Cannot
Do Much About Bad Legal Writing, 1 SCRIBES J. LEGAL WRITING 83, 83 (1990).
15. Lisa Eichhorn, Writing in the Legal Academy: A Dangerous Supplement?, 40 ARIZ. L. REV. 105, 131-33 (1998).
16. See Jo Anne Durako, Second-Class Citizens in the Pink Ghetto:
Gender Bias in Legal Writing, 50 J. LEGAL EDUC. 562 (2000) (using salary survey
data to show that even within the so-called pink ghetto of legal writing, women directors of legal writing get lower salaries than male directors of legal writing. Women directors also have weaker titles, are more likely to be teaching
exclusively in the first year, and have less job security); See also Jan M. Levine,
You Cant Please Everyone, So Youd Better Please Yourself: Directing (Or
Teaching In) a First-Year Legal Writing Program, 29 VAL. U. L. REV. 611 (1995)
(describing teacher status, program design, and staffing issues for legal writing
programs).
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while those who teach legal writing are untenured and poorly
paid:
[Law school] hierarchy is gendered, with the lowest
rank overwhelmingly composed of women and the
highest rank overwhelmingly composed of men.
The players in this status hierarchy are the faculties and administrations of American law schools.
At the top are the tenured doctrinal professors,
roughly 70 percent of whom are male; at the bottom
are legal writing professors, roughly 70 percent of
whom are female.17
A discussion of a second-class status of legal-writing faculty
is beyond the scope of this article. There are several authors who
have written extensively on the subject. For further reading, I
would particularly recommend the writings of Professors Kathryn
Stanchi and Jan Levine.18
3. LAW SCHOOLS DO NOT ADEQUATELY TRAIN STUDENTS IN LEGAL
DRAFTING.
Of the many types of legal writing, legal drafting which I
call the creation of binding legal text,19 is typically of the poorest caliber.20 The legal drafting expert Kenneth Adams labels it
the dysfunctional language of mainstream contract drafting . . .
.21 Its worth asking why this should be so if [l]ike other lawyering skills, drafting can be done well or poorly. Doing it well
17. Kathryn M. Stanchi, Who Next, The Janitors? A Socio-Feminist
Critique of the Status Hierarchy of Law Professors, 73 UMKC L. REV. 467, 467
(2004).
18. See generally Kathryn M. Stanchi & Jan M. Levine, Gender and
Legal Writing: Law Schools Dirty Little Secrets, 16 BERKELEY WOMENS L.J. 1
(2001); Pamela Edwards, Teaching Legal Writing as Womens Work: Life on the
Fringes of the Academy, 4 CARDOZO WOMENS L.J. 75 (1997); Ilhyung Lee, The
Rookie Season, 39 SANTA CLARA L. REV. 473 (1999); Mary Beth Beazley, Riddikulus!: Tenure-Track Legal-Writing Faculty and the Boggart in the Wardrobe, 7
SCRIBES J. LEGAL WRITING 79 (1998-2000).
19. WAYNE SCHIESS, PREPARING LEGAL DOCUMENTS NONLAWYERS CAN
READ AND UNDERSTAND 25 (2008).
20. KENNETH A. ADAMS, A MANUAL OF STYLE FOR CONTRACT DRAFTING
xxvi (2d ed. 2008).
21. Id.
22.
23.
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31. John M. Lindsey, The Legal Writing Malady: Causes and Cures,
204 N.Y. L.J. 1, 2 (1990) (explaining the poor writing of American lawyers).
32. Janeen Kerper, Lets Space Out: Rethinking the Design of Law
School Texts, 51 J. LEGAL EDUC. 267, 268-69 (2001) (article discussing the importance of design and white space in law textbooks).
33. TOM GOLDSTEIN & JETHRO K. LIEBERMAN, THE LAWYERS GUIDE TO
WRITING WELL 30 (1989).
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35.
36.
37.
AND
NONSENSE 70
(1982).
(1967).
(1982).
AND
NONSENSE 101
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invisible to all sides.43 Besides, as the form gets longer and longer, the writing gets worse and worse.
Given the economic necessities of forms, and the realities of
the four drawbacks, lawyers should be much more systematic
about forms and their use. Every office of lawyers should prepare
and maintain a database of up-to-date forms. The drafting expert
Kenneth Adams has recommended such a practice,44 but it is sporadic at best.45 Besides, forms are hard to keep up with:
They continue to be published, hundreds of thousands of words pouring off the printing presses
each year, swamping the legal profession with sentence upon sentence for pleadings, affidavits, declarations, wills, leases, conveyances, notices, bills of
lading, mortgages, trust deeds, hire-purchase
agreements, assignments, bonds, highway agreements, covenants and any other documents that
one lawyer imagines another might need.46
Forms, although useful, contribute to poor legal writing.
6. IN WRITING LEGAL ANALYSIS, MANY DIGEST THE AUTHORITIES
SUPERFICIALLY; IN DRAFTING AGREEMENTS, MANY UNDERSTAND
THE TRANSACTIONS SUPERFICIALLY.
I teach first-year legal writing, and as has already been asserted here, that job is mostly about teaching written legal analysis. I teach practicing lawyers in continuing-legal-education seminars. That too focuses heavily on written legal analysis. And I
also coach individual lawyers on written legal analysis. I therefore see, read, and comment on large amounts of written legal
analysis much of which is weak.
Putting aside sentence-level writing concerns like grammar,
punctuation, usage, and the conventions of legal English, I see
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47. This failure is one of the greatest failings of all legal writing, and is
widely discussed in the legal-writing literature. Experts agree that you should
state the conclusion, prediction, or desired result up front. See generally JOSEPH
KIMBLE, LIFTING THE FOG OF LEGALESE 73 (2006) (All legal writing should be
front loaded. It should start with a capsule version of the analysis. It should
practice the art of summarizing.); FREDERIC G. GALE & JOSEPH M. MOXLEY, HOW
TO WRITE THE WINNING BRIEF 107 (1992) (By establishing the main points of a
document before launching into a detailed analysis of the points, you show readers what information to look for.); STEVEN D. STARK, WRITING TO WIN: THE
LEGAL WRITER 144 (1999) (All briefs should have a first-page, introductory
summary, whether the rules require one or not.); IRWIN ALTERMAN, PLAIN AND
ACCURATE STYLE IN COURT PAPERS 97 (1987) (In each part of your legal analysis,
give the bottom line first, plainly and without fanfare.).
48. See WAYNE SCHIESS, THE LEGAL MEMO: A BASIC GUIDE 38 (2008).
49. See WAYNE SCHIESS, THE LEGAL MEMO: A BASIC GUIDE 61 (2008) (on
the importance of explaining authorities).
50. WAYNE SCHIESS, BETTER LEGAL WRITING: 15 TOPICS FOR ADVANCED
LEGAL WRITERS 173-74 (2005) (detailing the use of specifics in analogical analysis).
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51. ANNE ENQUIST & LAUREL CURRIE OATES, JUST WRITING: GRAMMAR,
PUNCTUATION, AND STYLE FOR THE LEGAL WRITER 59 (2d ed. 2005) (Some legal
writers have a tendency to write as though others can read their minds. These
writers omit transitions because the connections between ideas are obvious to
them.). See also TERRI LECLERCQ, GUIDE TO LEGAL WRITING STYLE 15 (4th ed.
2007) (As the writer, it is your job to connect words and ideas so that your
readers dont have to do the mental work for you.); BRYAN A. GARNER, THE
ELEMENTS OF LEGAL STYLE 65 (2d ed. 2002) (Paragraphing should also show the
progression from one idea to the next.).
52. BRYAN A. GARNER, THE WINNING BRIEF: 100 TIPS FOR PERSUASIVE
BRIEFING IN TRIAL AND APPELLATE COURTS 4, 5 (2d ed. 2004) (recommending that
legal writers let the architect aspect of their writing personas do the important
work of making connections and planning the structure).
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Sometimes urgency forces precedence over everything else. Get it done. Get something out. Weve
got to file. This is a rush. The writer is under
pressure to take shortcuts. This has become the
normal environment of most legal writing, and is
one of the principal reasons why so much of it is so
bad.56
The unfortunate fact is that this kind of rushed approach
often gets the job done it is often good enough, or has to be.
One reason it gets by is that many of us have been writing this
way under a deadline and without sufficient time devoted to
polishing since college. Many young lawyers seem to have
survived writing assignments in college and law school (with the
exception of law-review writing) by turning in what were basically first drafts, lightly edited to fix glaring errors. They are unprepared to regard editing as a serious, laborious activity.57 And
so we lawyers continue to churn out mediocre or poor writing; the
exigencies of modern life and law practice almost require it.
8. SOME LAWYERS HAVE A MISGUIDED SENSE OF PROFESSIONALISM,
LEADING TO A FORMAL WRITING STYLE THAT IGNORES AUDIENCE
NEEDS.
The kind of legal writing Im referring to is often called legalese. Definitions vary:
[L]egal jargon that has an everyday English
equivalent.58
The type of jargon used in the legal profession . .
. .59
56.
AND
NONSENSE 116
(1982).
57. STEPHEN V. ARMSTRONG & TIMOTHY P. TERRELL, THINKING LIKE A
WRITER: A LAWYERS GUIDE TO EFFECTIVE WRITING AND EDITING 298 (2003).
58. BRYAN A. GARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT WITH
EXERCISES 34 (2001).
59. DEBORAH BOUCHOUX, ASPEN HANDBOOK FOR LEGAL WRITERS 98 (2d
ed. 2009).
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[L]anguage that lawyers would not use in ordinary communication but for the fact that they are
lawyers.60
But most legalese has one or more of the following traits:
Use of Latin where English would do.61
Use of archaic words where modern words would
do.62
Use of elevated diction (ten-dollar words) where
everyday English would do.63
Overuse of the passive voice.64
Overuse of nominalizations.65
Excessive sentence length.66
Use of insider vocabulary or jargon even when not
addressing insiders.67
Young lawyers I forgive: As neophytes who want to be accepted in the legal establishment and are afraid to be different,
most young lawyers sink deeper into the bad writing habits they
may have learned . . . . They coin long words and pepper their
60.
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writings with foreign cant and stuffy phrases . . . .68 And [t]hose
new to a profession are prone to use its special vocabulary at
every opportunity, to show that they belong.69 In mastering legalese, which they must, young lawyers dont always know which
words and constructions are necessary in legal writing and which
are fluff.70 Besides, theyre learning a new language, and its the
goal of the novice to master the legal language, whatever it is.
Whats more, they are often guided, or misguided, by examples or
advice from senior attorneys: Too many law students report
back from their first jobs that the clear, simple style they were
urged to use in school is not acceptable to the older lawyers for
whom they work.71 So when young lawyers, out of a misguided
sense of professionalism, try to sound like lawyers, I forgive
them.
But when an experienced lawyer writes in a fluffy, legalistic, hyper-formal style, Im unhappy. Experts should shed legalese.72 Experts should try not to sound like a lawyer. Experts
should strive to communicate, not to impress. Almost no one is
impressed by traditional legal language:
[W]e outsiders are not persuaded. We suspect that
lawyers use the old language at times because it is
conveniently available in form books, or because it
makes them sound like lawyers, or because they
are blissfully unaware of how odd it really is, or because they think it will fill us outsiders with awe
and a willingness to pay handsomely for documents
beyond our ken. We even suspect that on occasion
lawyers themselves do not understand the language of the law . . . . 73
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Yet some lawyers tell me they need to write in a formal, legalistic style so clients are intimidated. The intimidated client
needs the lawyer, Im told. Some lawyers tell me clients prefer
and expect traditional legalese.74 The legalese is said to reassure
the client. And although no lawyer has ever confessed it to me,
some lawyers seem to take pride in sounding stuffy and formal.
I reject those positions, and am not alone in suggesting that
writing in a way that requires a client to consult a lawyer to understand the document is bad. Over forty years ago, Sydney Parham said that [w]e cannot in justice to our job expect the client
to employ us to interpret our own documents nor should we require him to consult our professional brethren for this purpose.75
The busy-ness factor contributes to the problem of false professionalism, too. Legal writers are usually busy, and busy writers often operate on automatic pilot without much thought to the
character they are portraying in their prose. And when legal
writers are on automatic pilot, most tend to drift into more formal
prose because they have read so much of it during their education.76
But all lawyers can do better, not only by improving writing
skills generally, but also by thoughtfully considering the clients.
Most clients prefer and respect those who can write in everyday
English:
If the clients can read the contract more easily and
resolve contract questions themselves, doesnt that
mean fewer billable hours for the lawyer? My experience is that clients on both sides of a negotiation respect the lawyers ability to express ideas
clearly. When they see good writing, they are less
likely to try to do it themselves. While most business people can fake legalese, writing in plain
English takes practice. It takes real talent to ex74. See WAYNE SCHIESS, BETTER LEGAL WRITING: 15 TOPICS FOR
ADVANCED LEGAL WRITERS 128-31 (2005) (setting out and debunking the myth
that legalese attracts and retains clients).
75. SIDNEY F. PARHAM, JR., THE FUNDAMENTALS OF LEGAL WRITING 72
(1967).
76. Stephen V. Armstrong & Timothy P. Terrell, Understanding
Style in Legal Writing, PERSPECTIVES: TEACHING LEG. RES. & WRITING, Fall
2008, at 43, 45-46.
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89. Wayne Schiess, What Plain English Really Is, 9 SCRIBES J. LEGAL
WRITING 43, 48 (2003-2004) (arguing that legal writing, legal drafting, and plain
English are legitimate fields worthy of scholarly research and study).
90. TOM GOLDSTEIN & JETHRO K. LIEBERMAN, THE LAWYERS GUIDE TO
WRITING WELL 66 (2d ed. 2002).
91. Mark Mathewson, In-House Editors: Letting the Experts Do It, 1
SCRIBES J. LEGAL WRITING 152 (1990). See also Karen Larsen, In-House Editor,
84 MICH. B.J. 54 (2005).
92. Texas Minimum Continuing Legal Education Rules, STATE BAR
RULES, art. XII, at 6(B) (At least three (3) hours of the fifteen (15) hours shall
be devoted to legal ethics/professional responsibility subjects.).
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4. Individual lawyers must take more responsibility for their own legal-writing skills and must constantly seek to improve.93 Lawyers should read a
book on writing or legal writing once a year, open
themselves up to honest critique, acquire and consult the best sources on writing, and attend a continuing-legal-education course on legal writing.94
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 writing. We are responsible for putting in the hard work and practice
necessary to master the skill of legal writing.