US News piece on legal writing

The April 11 issue of U.S. News & World Report contains its annual rankings of law schools (Texas 15th, Cornell 11th--yay). But it also contains an article called Putting a Lid on Legalese. The article discusses how law schools are trying to improve legal writing. Dahlia Lithwick, Putting a Lid on Legalese, U.S. News & World Report 58 (April 11, 2005).

The author, Dahlia Lithwick, covers legal affairs for Slate.com, and she has written a nice piece. It captures what I think is an accurate slice of what's going on in law schools and in practice. We legal writing teachers are preaching plain English, and the practicing bar is perpetuating ponderous, archaic writing:

"Regardless of what they may learn in class, most young lawyers soon learn from older lawyers and judges that it's safer to stick to the old standbys: passive voice, lengthy citations, and voluminous footnotes." Id. at 59.

That still happens, I think, but mostly, it's not older lawyers training young lawyers to write in the old way; it's young lawyers falling into the same lazy, old-fashioned habits that older lawyers have. The old way of writing isn't "safer"; it's just easier.

And of course, the whole situation is more complicated. Some legal writing teachers teach some old-fashioned things. Some teach new ideas that aren't right for legal writing--or that aren't accepted by enough lawyers yet. Some practicing lawyers are great writers. And some are terrible.

The U.S. News piece gives a simplified but generally accurate view.

Only one real quibble. Consider this quotation about what it's going to take for real, permanent change in legal writing:

"But before the nation sees a sea change in the way our statutes and contracts are drafted, the profession as a whole needs to decide--as it has not yet decided--that the days of res ipsa loquitur are well and truly gone." Id.

First, I would have mentioned legal correspondence and perhaps legal briefs as documents that need to be changed, not just statutes and contracts.

Second, res ipsa locquitur is probably a poor example of something that needs to be "well and truly gone." It's a true term of art; it stands for a legal concept, and there is no everyday English equivalent. The author might have used "wherefore, premises considered" or inter alia instead.

Truly a minor quibble.