Roy Mersky has died

Roy Mersky, or "RMM" to many of us, died yesterday. He was the director of the law library here at the University of Texas School of Law. He was a giant in the field of law libraries. He was also my friend.

When I wrote an article or a book, Roy would send me a note of congratulations. He would also often congratulate me in person. He encouraged me in my writing and teaching. He created opportunities for me. He promoted my work to others.

Why did he do all these things for me? It wasn't because I was doing anything for him--I wasn't. And it wasn't because I had the power or potential to do things for him in the future--I didn't. Maybe he liked me. I don't know.

What I know is that all he did for me meant a lot to me.

What clients will pay for

Oops. I meant the title of this post to say: "For what clients will pay."

Yesterday a commenter reminded me that most lawyers are too busy to polish their work as much as they should. I agreed. Today, a commenter pointed out another reason lawyers don't polish their writing as they should:

Clients aren't willing to pay to have perfect work product. More often than not, clients are pragmatic: they want "good enough" to get what they want.

This is also true. Let's take contracts for example. Only a tiny percentage of contracts end up in litigation. Almost all of them get the job done even though they aren't well polished. If that's true, the rational client should want the mediocre contract that gets the job done and not the polished contract that also gets the job done but that costs twice as much.

But a commenter who has been a client responds that, apparently, not all clients feel that way:

I have been a client. No litigation, no contracts, so perhaps my comments don't count. But in letters between my attorney and their attorney, I wanted careful editing (in fact, I edited them myself), no unnecessary words, polish, and highly intelligent writing.

So we must acknowledge that some clients want perfect written work. But it is telling, I think, that this client had to do some of the polishing herself. Would she have been just as insistent on a well polished letter if it had cost $250 instead of $150?

The busy-ness of law practice

A commenter writes:

The problem is that, ironically, legal practice discourages good writing. . . . [One] reason is that most lawyers take on more work than they can do well. It may be their own fault, but they don’t have enough time to edit and proofread their writing.

This is true, and the commenter is not the first to acknowledge it:

The modern practice of law does not tolerate the type of revisory process necessary to produce a polished product--the "well-managed" law firm has more work to do that it can complete in a given span of time.

Bryan A. Garner, A Dictionary of Modern Legal Usage 518 (2d ed., Oxford U. Press 1995).

I've quoted this on my blog before, but it is true.

Reasons legal writing doesn't improve

A commenter writes:

Writing is a fundamental skill. Law schools should put much greater emphasis on this fundamental. Those students who didn't develop good writing skills before they got to law school should take more than one or two legal writing courses. At the least, they should demonstrate a mastery of grammar before they're awarded a law degree.

No one can really argue with any of these points. And some law schools are doing more and better writing training. But writing education in law schools will not rise to the level this commenter would like. I offer two reasons.

First, mastering professional writing takes too long and is too big a job for law schools. No matter how proficient a law-school graduate is at the moment of graduation, there will always be something someone considers "fundamental" that the graduate will not have mastered. Ultimately, the graduate-turned-lawyer must take responsibility for mastering professional writing. The law school can and will do only so much.

Second, law schools--especially top ones--turn out thousands of lawyers every year, and these lawyers get high-paying jobs doing sophisticated work for large clients who pay high fees. That these lawyers often lack fundamental writing skills doesn't seem to matter. That their writing, even if fundamentally sound, is not crisp, vigorous, and plain doesn't seem to matter. That they often rely on forms and precedents that perpetuate archaisms, formalisms, and wordiness doesn't seem to matter.

Sure, I think it's disappointing and sometimes disgraceful that shoddy or even mediocre legal writing is everywhere. But the shoddiness and mediocrity don't seem to be causing big problems. The work gets done, the deal closes, the case goes to trial, and the brief gets filed and wins the case. Either there's not much real cost from bad legal writing, or it's very hard to measure.

On a related note, this is why it's hard for me to sell my services as a plain-English reviser. Why would a bank hire me to revise its home-loan documents into plain English? Are consumers complaining about the writing? Not much. Are the regulators criticizing the bank's forms? Not much. Is the bad writing causing litigation or other problems? Not much. The current documents work, so why pay to have them fixed?

Frankly, the law rolls on quite lucratively for many lawyers, so there's little incentive to improve legal writing. But we still try.

Expectations of what I teach

Recently, a tenured professor walked into my office, holding a student-written paper. The professor was teaching an advanced course in which students had to write a scholarly paper. "I'm very upset that our students can't write," he said. "Look at this. It's terrible."

The professor then pointed out some of the writing problems in the paper. Some were analytical and structural, but some were problems of grammar, punctuation, usage, and style.

My first unspoken reaction was that it is not my job to teach students the analytical and structural approach to writing scholarly papers. If the professor wants the scholarly papers to be written in a certain way, he should teach that way to his students. He cannot assume students already know how. All I teach is memos and briefs, which are not the same as scholarly papers.

My second unspoken reaction was that it is not my job to teach students grammar, punctuation, usage, and style. If the professor wants the scholarly papers to be well written from those perspectives, he should recommend a style manual, refer the student to the writing center, or work with the student individually to fix those problems. All I teach is memos and briefs.

Were my unspoken reactions wrong?

The subtext here is that many of the tenured faculty seem to believe that students should emerge from the first-year legal-writing course with a solid foundation in grammar, punctuation, usage, and style and a mastery of all forms of written legal analysis.

U.S. House passes plain-language law

The House has passed the Plain Language in Government Communications Act of 2008.

It requires agencies to rely on the Federal Plain Language Guidelines or the SEC's Plain English Handbook.

Yay.

Hat tip to Mister Thorne of Set in Style.

Writing to Win: Plain Language Jury Instructions

I attended and spoke at Writing to Win: Plain Language Jury Instructions, sponsored by Washburn University School of Law. It was a great conference, very professionally run. Prof. Lyn Goering there was in charge, and she was superb.

More and more states are thinking about plainifying their jury instructions and, of course, change has to come from, or with the approval of, the judiciary. There were a lot of judges there, and that's great. The process here in Texas is still moving along, too.