|Oregon State Bar Bulletin JUNE 2011|
A formula? Wouldn’t that be nice! No, there is no fail-safe formula for effective legal writing — not for training legal writers, for learning to write, for generating legal work product or for hiring excellent writers. And if there were, I’m sorry, but I would not share it here. I would guard it more carefully than Coca-Cola protects its precious formula, because it would be worth just as much. All right, almost as much.
There is no formula because lawyers, writers and learners are unique. They have different learning styles, different writing styles and different writing processes. Many lawyers could write an effective brief for the same client in the same case, but they would not all write the same brief, and they would not all tackle the project in the same way. Each brief would inform and persuade. Each would be precise and clear. Each would be concise but thorough. But each would be shaped by a nearly infinite number of the author’s choices, and they would all be quite different as a result.
While work products and processes differ, the most effective legal writers do share several traits. This column discusses those traits and their relevance to legal writing success. The column then discusses a few ways to test or prove the capacity of a lawyer to write well.
Each lawyer will continue to tweak her own personal writing recipe throughout her career. This column offers some suggestions for that journey. But the column is not just for students and lawyers in search of a formula for improved legal writing. It is also for employers who hope to hire effective legal writers — lawyers who appreciate how to combine ingredients and package their product to be most palatable to their audience.
Traits to Cultivate, Highlight
Practicing the craft is key to improving writing. Look for opportunities to write, to receive feedback and to revise. No matter how much or what kind of feedback you receive, attend to more than just mechanics while revising your work. Proper grammar and punctuation are critical, but excellent legal writing requires much more.
In addition to being attentive to mechanical details, the best legal writers display the qualities listed below. If you are a writer, cultivate these traits in yourself. If you are a job applicant, demonstrate that you have these qualities in your cover letter. And if you are an employer, jump at the chance to hire someone who exhibits them all.
Resourceful. Before a lawyer can write, she must find the facts and legal authorities that best support her client’s position. She must know where to look, whom to ask and how to follow up. She must recognize when to seek help and where she will find that help. Thus, an effective legal writer must understand how to gather information from clients and witnesses; how to conduct legal research; and which practice guides, reference librarians and style manuals to turn to when questions arise.
Perceptive and creative. Beginning legal writers are sometimes frustrated because they see no opportunity for creativity in a structured legal argument. But as they gain experience, they learn that reasoning requires them to be perceptive and creative. They must be thoughtful about a precedent’s meaning and impact. They must dig deep to find the common ground shared by — or the difference between — that precedent and their client’s case. They also must craft their analogies and distinctions in vivid and original ways to strengthen their argument.
Focused. Legal writers need to decide what to write and how to write it. They also need to decide what to omit. Many facts and authorities are fascinating. And many potential arguments exist. But effective legal writing does not waste the reader’s energy with material that is merely interesting. It concentrates on the essential.
Organized. While a cluttered office is okay, blurred boundaries on the page are not. Headings and sub-headings should indicate the role of — and relationships among — the sections of a document. Each paragraph should address a single subject, and a topic sentence should make that subject obvious. In addition, while expert legal writers do not strictly follow the organizational paradigms commonly taught to beginning legal writing students (recent graduates probably remember IRAC, CREAC, or CRRPAP), they do tend to use something similar most of the time they lay out a legal argument. They begin with a conclusion, explain the relevant law, apply that law and then conclude again.
Clear and direct. Legal writers should strive to educate — not intimidate — their readers. When their subject is complex (and it often is), they must work hard to simplify it. That means preferring short words and sentences to long ones. It means preferring the active voice to the passive voice. And it means preferring consistency to elegant variation. Complicated legal matters present many challenges; by being clear and direct, lawyers mitigate — rather than exaggerate — those challenges for their readers.
Motivated, disciplined and patient. Producing an excellent piece of legal writing requires perseverance, even for accomplished lawyers. Procrastinators pay a price: they often run out of time and must cut corners while revising and editing. Or worse, they skip those key steps altogether and submit a first draft in place of a polished final product. The best legal writers recognize that no document is ever “finished”; they just stop working on it when the deadline hits. As a result, they start early to give themselves sufficient time to pore over multiple drafts. Starting early takes motivation. Spotting and solving writing problems takes discipline. And careful proofreading takes patience.
Sensitive. In popular culture, we often see lawyers depicted as self-absorbed. But to be an effective legal writer, a lawyer must focus outward. She must anticipate and respond to the needs and expectations of others: her audience. This kind of sensitivity can help a legal writer make wise decisions about content, length, style and tone. And those decisions can mean the difference between a memo that is skimmed and a memo that soaks in — between a brief that is ignored and a brief that shapes a judicial opinion. After all, if a lawyer writes a document that doesn’t resonate with its audience, she probably hasn’t helped her client much.
Testing Legal Writing Ability
Lawyers should look beyond transcripts for evidence of writing ability when they market themselves and when they hire others. An excellent legal writing grade does indicate great promise as a legal writer. But a good grade alone is neither necessary nor sufficient. One student could have had a relatively late aha moment and then emerged at the end of the course with low scores but unmatched potential. Another student could have performed well relative to her 1L class, but then avoided writing-intensive opportunities as an upper-level student and therefore missed further occasion to develop her skills.
In addition, grading practices are not uniform across law schools. At some schools, an A is a rare; it indicates truly exceptional performance. At other schools, more liberal grading practices allow many legal writing students to take home seemingly extraordinary marks for ordinary work. And of course, some courses are not graded at all.
Further, legal writing courses are not equally rigorous. Some classes require students to devote significant time and energy to numerous, challenging assignments. Others demand much less. A student who earns a B- by muscling through a tough syllabus may become, through that effort, a stronger legal writer than a peer who receives an easy A in a simpler course.
To test legal writing ability, lawyers can look for the traits described above, such as creativity, focus and motivation. They can examine writing-intensive experience — including upper-level coursework; internships, externships and clinics; and past employment — and evaluate the skills that those opportunities help participants develop.
They can also consider writing samples, but not just the prepared ones that applicants have long submitted when applying for jobs. Instead, employers can require — and applicants can offer — completion of a short writing sample during a job interview. Employers are increasingly adopting this new method of evaluating the legal writing skills of job applicants. This can be achieved fairly easily; ninety-minute Multistate Performance Test questions, which require creation of documents like letters, memoranda, briefs, wills and contracts, are available for free online. Or past client questions can provide inspiration for designing your own canned exercises.
An on-the-spot writing sample can allow a job-seeking lawyer to display her skills accurately. She can demonstrate how well she analyzes, writes and revises under circumstances like those she will sometimes encounter on the job: feeling the pressure of a deadline and lacking the benefit of a second set of eyes. A writing sample prepared and polished in advance, while still indicative of the applicant’s abilities and attention to detail, does not necessarily preview the writer’s ability to work efficiently and independently.
Legal writing is not the only product that lacks a guaranteed formula. As Ira Glass recently confirmed on This American Life, Coca-Cola’s success stems as much — if not more — from its marketing than from its recipe; taste-tests revealed that many preferred the taste of alternatives made from Coca-Cola ingredients over the taste of genuine Coca-Cola.
So take the ingredients of good legal writing, and use your taste and style to develop your own version. Then, like Coca-Cola, make a name for yourself. Market yourself to clients and employers by showing them all the qualities you can put to work for them. Establish a reputation by creating top-notch work. Become the brand that is synonymous with quality legal writing.
ABOUT THE AUTHOR
Rebekah Hanley teaches Legal Research and Writing at the University of Oregon School of Law. Her email address is email@example.com. She appreciates Suzanne Rowe’s contributions to this article.
An archive of The Legal Writer articles is available here.
© 2011 Rebekah Hanley