The good, the bad, and the better of legal writing

I take every opportunity that comes my way to speak to law students, and I always find it a gratifying experience, even when I have to spell out the challenges they’re going to face upon entering a legal marketplace in crisis. Last week, I had the chance to speak to a Legal Writing class at the University of Ottawa Faculty of Law, and as expected, the students were great and they helped the session go tremendously well.

I prepared a short presentation for the class, and I thought you might be interested in some of the highlights, because the principles I talked about are in no way limited to law students. Here you go:

1. Law school is not a good place to learn legal writing. You might think that’s counter-intuitive, since virtually all law students ever do is read and write. The problem lies with what they read: 95% of what students are assigned has been written by judges and law professors, and lawyers learn to imitate and replicate their bad habits.

Judgments, as we know, are the template for a lot of bad writing: they sacrifice readability to formalism, they include far more than you really need to know, and they put the most important point at the end. Academic articles aren’t much better. A typical document written by a judge or a law professor shares three things in common:

  1. It’s appeal-proof: Judgments and academic articles are written defensively, to ensure that they can’t be attacked or reversed on appeal.
  2. It’s formulaic: If you’ve read one judgment or law review article, then at least in terms of style and format, you’ve pretty much read them all.
  3. It’s written for peers: With some shining exceptions, judges and law professors tend to write for each other, not for lawyers or law students.

2. Legal writing should be clear, engaging and reader-friendly. Each of these points deserves a little further development.

  1. Clarity: The purpose of the document and the means by which that purpose will be accomplished should be completely clear to the writer when he starts and to the reader when she finishes. We had a rule in my speech-writing days: “Tell them what you’re going to say; say it; and tell them what you said.”
  2. Engagement: In exchange for their continued attention, readers demand to be engaged by a written work, and the best way to ensure that is to be engaged yourself when you’re writing. Enthusiasm is infectious, and if you really care about what you’re writing, your reader inevitably will care as well.
  3. Focus on the Reader: This is the most important aspect of good writing and it’s where most legal writing fails, because it’s really written for the author or his peers. Who is my reader? What is her situation? Why should she care about what I have to say? Answer those three questions over and over while writing.

3. There are five steps to great legal writing. To my way of thinking, anyway. Your mileage may vary.

  1. Know exactly what you want to say. Clarity of theme and clarity of purpose are indispensable. Don’t start unless you can express each in one good sentence.
  2. Know exactly who you’re talking to. Who will read this? When? Why? What action do you want them to take after reading it? Know your audience cold.
  3. Write it. It doesn’t matter how you write: longhand, typing, dictation, whatever. Tell your chosen story to your audience. Reminder: this is step 3, not step 1.
  4. Rewrite it. Go back and make it shorter, clearer, more direct. Carve off sentences or even paragraphs that distract or detour the reader. Sculpt it for leanness.
  5. Repeat Step 4: Up to a point, anyway: you don’t have the time or energy to make a fetish of primping your copy. But in the time available, cut down, reword, refine.

I advised the students to remember one thing when writing any document for a professional purpose: A busy person with power over you will read it. That includes judges, senior lawyers and law professors. But most importantly, that includes clients.

Those are my thoughts on how to become a great legal writer. What are yours?

Comments

  1. David Canton said:

    I agree. Another thing is to start off with your conclusion, or what you want the reader to know, or something that makes them curious. It is more persuasive to lead with a conclusion and then explain, then the other way around.

    @ 9:50 am
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