Oregon State Bar Bulletin JULY 2013
The Legal Writer
Mentoring Legal Writers:
Overcoming 'Illusory Superiority'
By Elizabeth Ruiz Frost
These days, lawyers and judges frequently decry new lawyers’ writing skills. They bemoan weaknesses in spelling, grammar, tone and coherence. In defense of these young lawyers, many of them have received little to no feedback on their writing since junior high. They have been writing in a vacuum, with headphones blaring, and using only 140 characters at a time.
Unfortunately, most of these new lawyers probably don’t even know that they’re not good writers. People aren’t very good at knowing what they don’t know. Got that? There’s a cognitive bias called the Dunning-Kruger Effect that makes people rate their skill level higher than it actually is, which is called illusory superiority. Dunning and Kruger, both psychologists at Cornell, found that unskilled people will: 1) tend to overestimate their own skill level; 2) fail to recognize genuine skill in others; 3) fail to recognize the extremity of their own inaccuracy; and 4) recognize their own inadequacy only if exposed to training in that skill.
So in sum, some new lawyers might be bad writers, but they don’t know they’re bad writers. And they can’t tell the difference between good writing and bad writing. And they’ll never learn the difference or improve without training.
As you welcome new lawyers into your practice or take them on as a mentee, how can you help them improve their writing? Start by making your expectations known at the outset and providing lots of opportunities for constructive feedback.
Put the Writer on Notice
We all know that lawyers must write for their audience. New lawyers should learn the particular preferences and peeves of their supervisors and adjust their writing style accordingly. Adjusting for one’s audience is much easier, of course, if the audience is transparent about its needs. So be transparent. Tell the writer in advance what qualities you look for in good writing. For example, if you’re an ardent follower of the Plain English movement, let him know that. If you like client letters to be written in a more casual, first-person style, tell him that before he starts writing. And maybe this should go without saying, but tell the writer how important precision and accuracy are to you. Law students frequently tell me that they’re surprised by my high standards. But once they know my standards, they rise to meet them.
Use Samples to Teach
One helpful way to explain your expectations to a writer is to expose him to examples of good writing. Find an example of your own writing that demonstrates your preferred style. Dig out an old, well-written brief that moved you. Or bring in newspaper articles written by a journalist whose style you like.
Examples of good writing can be illustrative on their own. But the Dunning-Kruger Effect suggests that a writer is unlikely to understand the difference between a strong writing sample and his own writing. A writer will typically get much more out of the sample if you explain why it’s good. Is it because the sentences are short and clear? Is it because of strong topic sentences and well-organized, coherent paragraphs? Or is it the depth and thoughtfulness of the legal analysis? (Hopefully it’s all of the above!) Some writers can learn a lot from samples and model their own work accordingly. Keep in mind, though, that not everyone learns well from reviewing samples. And few people will be able to discern much from a sample without at least a little explanation.
Critique Instead of Correcting
Instead of just fixing what’s wrong when reviewing a draft, critique it and discuss your critique with the writer. When I was a new associate, I drafted piles and piles of loan documents. Some partners would teach me to draft; others would just correct me. One partner would routinely leave corrected drafts on my chair in the middle of the night, bleeding with red ink. I could process all the edits (as could a well-behaved chimp with a laptop), but as a new associate, I didn’t always understand why I was making the edits, and I was too scared to ask. Instead of spending hours red-penning the documents, had he taken a few minutes to sit with me to review the changes together and explain why one version was better than the other, I might have learned more quickly not to make the same mistakes again.
Critiquing work can be difficult. Sometimes you don’t quite know why something isn’t good. It just isn’t. In my experience teaching legal writing, there are a few common reasons why writing doesn’t work: 1) the writing isn’t easy to read because it’s disorganized, so information is provided in an illogical order; 2) the writing isn’t easy to read because it’s dense, so you have to read each sentence two or three times; and 3) the writing isn’t easy to read because the explanation of the law is cursory. These common problems might provide a starting point for your critiques.
Even if you feel like you aren’t equipped to give a sophisticated critique of someone’s writing, you can give the writer an honest reader response. Just telling the writer where you struggled as a reader can be educative. “I didn’t understand this. Here’s where you lost me…” can go a long way. Pointing out the communication breakdown gives the writer an idea of where and why to start revising.
Provide Lots of Practice and Feedback
Actually, provide lots and lots of practice and feedback — and then a little bit more. Lawyers don’t know how to be lawyers without practicing. But then practice without feedback isn’t always productive. I liken this to my singing of Elton John’s classic hit, “Goodbye Yellow Brick Road.” I’ve never known the real lyrics, so I sing my own version. After 20 years or so of singing it my way without correction, I’ve gotten good at singing the wrong words. I am now physically unable to sing it correctly. That’s a long way of saying that writers need a lot of opportunities to write and lots of feedback to improve their writing or else they’ll just keep making the same mistakes.
The Dunning-Kruger Effect should convince you of this. Remember, bad writers don’t usually know that they’re bad, and they won’t figure it out on their own. They need help — and lots of it — to learn the skill. So try to include the new associate on as many of your writing projects as you can. Ask him to write a portion of the brief you’re writing, or a couple of the loan documents in a deal, or part of the press release that’s going out about your brilliant new associate with the stellar writing skills. Just be sure you build in time to work with the writer on each of those projects if they’re not up to par. Schedule time to talk about his or her writing, give suggestions for improvement, and also tell the writer where his or her work is effective.
Of course, sometimes when we are really busy, it is easier to fix mistakes ourselves than to send it back to the mistake-maker. Imagine a junior associate just wrote a memo for you and you don’t understand his explanation of the law. You might be inclined to go read the case yourself rather than talking to the associate. Instead, assuming time permits, tell him you need more information and ask him to rewrite it. Or imagine that the associate wrote a letter to a client chock-full of legalese. With a clock ticking, you might just edit it yourself or send it to an assistant to fix. Instead, point those issues out to the writer and explain how it could be improved. Unfortunately, the writer can’t learn from a mistake he doesn’t know about.
Writing can be very personal. For some people, having their writing critiqued can be stressful and emotionally tolling. One way to alleviate some of that stress is to depersonalize the critique. Try to critique the writing, not the writer. That means avoiding “you” and “your” in your comments. So instead of saying, “You tend to write very long sentences,” you could say, “This sentence is very long.” And instead of saying, “You haven’t explained this case thoroughly,” say, “This case isn’t explained in depth.” Depersonalizing a critique is a subtle change, but it could be one that spares hurt feelings and bruised egos, which could in turn yield a more productive relationship.
Not all new lawyers will come to us with F. Scott Fitzgerald-like writing skills. But all writers can improve with practice and feedback. Of course, lawyers are busy people, and taking time away from client work to mentor new lawyers can be difficult. However, the investment of a bit of nonbillable time may pay dividends when you spend less time correcting faulty work in the future.
ABOUT THE AUTHOR
Elizabeth Ruiz Frost teaches Legal Research and Writing and other courses at the University of Oregon School of Law.
An archive of The Legal Writer articles is available here.
© 2013 Elizabeth Ruiz Frost