Teach Legal Writing to My Associates? Didn't They Learn to Write in Law School
by Doug McQuiston
I know what you’re thinking. "Why do I need to work with my associates to improve their writing? Didn’t they learn to write in law school?" Maybe you hired experienced associates. They work hard and do a great job day in and day out. Wouldn’t you just insult them if you started teaching legal writing to them now?
You’re right about a couple of things. The experienced lawyers in your office have all been writing for years. After all, lawyers are professional writers, more now than ever before. Over the course of a career, lawyers will write more pages of work than even the most prolific fiction authors. You’re also right that your attorneys do a great job. But maybe you need to re-think the other part—do you really think they (or we) were taught how to write well in law school?
Your associates left college with good writing skills, or they would never have gotten that far. Many took formal writing classes in college, in "creative" writing or more technical styles. They learned to be concise, to edit aggressively, and to put complex information into simple, readable text. They learned how to make their writing easy to read, informative and clear.
Then they graduated and decided to go to law school. In their first year "Legal Research and Writing" course, those talents they learned in college were beaten out of them. They were treated as "minds full of mush" to be broken down and taught to "think (and write) like lawyers."
Writing Like a Law Professor?
Maybe if we had been taught in law school to think like lawyers who write well, it wouldn’t have been so bad. The problem isn’t that we were taught to "think like lawyers." It’s that we were taught to "write like law professors."
In law school, we studied musty, densely written opinions from old Casebooks and Reporters bound in cracked sheepskin. Many of the cases we read were written before the turn of the last century. Sure, we got a glimpse of master writers like Oliver Wendell Holmes or Benjamin Cardozo, but only a glimpse. Mostly, we learned to master the paragraph-long sentence, how to shade our meaning for purposeful ambiguity and how to use the passive voice wherever possible. In Contracts class, we learned to mince words so finely they lost all shape or power. We choked back those writing skills we learned in college, trying to convince ourselves that’s "how lawyers do things."
"Make It More Lawyerlike!"
Did this happen to you, too? In my first year in law school, I was assigned to write a memorandum. I didn’t know any better, so I applied the technical writing skills I learned in college. The memo was a page-and-a-half long, with headings and short, active sentences, no more than three or four sentences to a paragraph.
The professor returned it with a big red "Incomplete" on it, and a note at the bottom that it needed to be "more lawyerlike." I asked him what that meant. I couldn’t really make out what he said, but I think he meant "longer, and not so readable."
If we learned this kind of "writing" in law school, we were asked to join the Law Review. There, we spent our year writing an article, (as one commentator once pointed out) "no one will ever read about problems no one ever knew existed, that no one can solve." My article was on "State Mineral Severance Tax Constitutionality Under the Commerce Clause." A real page-turner. Even my topic editor couldn’t get through the whole thing without lapsing into a coma.
Learning On the Job?
Before we knew it, three years flew by. We passed the Bar exam. Then, we got our first job as an associate. Before we could even admire our name on the engraved business cards, we were thrown our first assignment. We had no time to think about our work product. "Thinking isn’t billable!" our senior partner told us. So, we slipped into bad habits.
Sometimes, those bad habits carry us through our whole careers. We don’t ever stop to think about persuasion, readability, power, or even good sentence structure. We can’t—there isn’t time, right?
We sew together stuff we steal from some other lawyers. We "bang it out," we "get it done." We insulate ourselves and our documents in comforting legal padding we have seen before, because it is "safe." We hide behind ambiguity and boilerplate, because it’s easier. After all, we don’t have time to do it any other way, right? Your associates’ career path probably looks a lot like this, too.
There is another way, pilgrim . . .
The practice of law is fun, or should be. Our careers are too short to get stuck in bad habits. We can reclaim our muses, or at least our ability to write coherently and powerfully. Over the next few months, we will explore some ideas that you can use to inspire the lawyers you work with, whether first-year associates or senior partners, to find their voices as great legal writers.
The ideas we will kick around are not gospel. They are not gems handed down by some "expert" in legal writing. I have been at this for 22 years, and have been studying legal writing even longer. I still have not mastered it. They don’t call it a law "practice" for nothing. Sometimes, what I write is well-received by judges or other readers; sometimes, it falls flat on its face. If I could figure out why, I could retire and go on the lecture circuit full-time.
But by thinking about what we write, editing aggressively, and trying to use powerful and persuasive words where we can, we can make what we write better. We can at least improve our odds of winning, and make our jobs more fun and more rewarding in the process.
Next month—"Comes Now the [Plaintiff/Defendant . . ."