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Wednesday, October 4, 2023

We Need to Care More about Legal Writing

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As lawyers we spend a lot of time writing.

In fact – looking back, if I had to pick a single task which took up most of my time, it would be writing.

It’s important.

Unfortunately, in the analysis of most law degrees and the training that takes place in the early years of practice, I’m sad to report that:

  • precious little time is spent learning how to write
  • the time you spend writing is often teaching you how to do it badly.

Why Care?

Surely we can just take our knowledge, dump it on the page, and people will figure it out, right?

The price of clarity, of course, is that the clearer the document the more obvious its substantive deficiencies. For the lazy or dull, this price may be too high. Reed Dickerson, Professor of Law, Indiana University

Powerful words are clear – about facts, opinions, outcomes and actions.

Inept words communicate very little, but take up a lot of space to do it.

An effective legal practitioner knows how to use the critical tool of legal drafting to best advantage.

As a result, they have happier clients, less misunderstandings with other lawyers, and a greater impact with their writing.

But Surely You’ve Been Taught to Write in Law School?

Yes and no.

The question is not whether you learned to write in law school.

The question is what you learned to write in law school.

The majority of us learned to write academic papers. This is true whether or not the task was couched in terms of a “practical” exercise.

It comes back to purpose: the purpose of your law school assignment or exam was for you to communicate your grasp of the legal principles. The result is that you learned to game the system by producing work which would achieve the highest version of that purpose that you could.

You didn’t (and probably couldn’t) produce work that was:

  • succinct (because of word counts); and
  • contextual (because there was no context to your task – it was done in a vacuum).

In many cases if you delivered your work to a real client, they would throw it in the bin.

The “bin factor” is not, however, a criteria on your exam. As a result, why should you care?

Prevailing Laziness

The common language of the law is not the product of necessity, precedent, convention, or economy, but it is the product of sloth, confusion, hurry, cowardice, ignorance, neglect, and cultural poverty.Robert W. Benson, Professor of Law, Loyola Law School

Practice doesn’t actually make perfect. In fact, practising something badly can result in bad habits becoming very hard to dislodge.

When it comes to legal drafting, the common path of the young lawyer is:

It is easier, faster, and cheaper to perform a brain dump of legal knowledge onto a page then it is to draft an effective, refined piece of writing.

It is also lazier. It’s based on the incorrect mindset that, simply because something is legally correct, it is sufficient for the task.

The result of this laziness is that the cycle continues unabated, as lawyers around the world fail to refine and improve their writing styles.

It’s Time to Stop

More and more our clients won’t tolerate the spasms of brain and hand which cause a 2 page advice to become 20 pages.

They are rejecting indecipherable jargon.

They are rejecting impractical advice which gives little guidance or recommendation.

In time, they will simply reject you as their lawyer.

And they’ll be right.

Are you Ready?

By now, I’m sure you have seen what I’m talking about.

I’m sure you have seen preposterous letters with words not used for centuries.

I’m sure you have read submissions littered with Latin that you needed to look up.

Perhaps you have even thought that these were indicative of a “good lawyer” who could use all of those fancy words.

It isn’t.

It’s a sign of a lazy lawyer driven by pomp and hurry.

But you and I – we’re going to do it differently.

Aren’t we?

My questions for you today…

How you are deliberately working on your legal writing?

What have you done in the last 4 weeks that was a conscious effort to improve?

Anything? Nothing?

Let me know in the comments!

Happy Lawyering!

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  1. 6 months that i read your blog, but you still do don’t show how to be “Ready to Improve (our) Legal Drafting” !

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