Legal analysis: fixing the biggest weakness
As I said, I gave a seminar to lawyers who supervise others' writing, and I did not diagnose "lack of substantive understanding" as a possible cause of the confusing, disjointed writing some of the supervisors were seeing. I'm only human, after all. Not some SuperHero of writing, standing astride Mount Participle.
Yesterday I described what symptoms of "lack of substantive understanding" a supervisor might see in a piece of writing. Today I offer three suggestions for addressing the problem.
- Require the writer to provide a one-paragraph summary of the conclusion and reasons in the document, whether it is a memo, brief, or letter. Clarify that this summary should be written after completing the main analysis in the document. The summary paragraph forces the writer to articulate the point of the writing. It's hard to do this if you don't know the material. Thus the up-front summary forces the writer to master the material or leaves you, the reader, with a clear diagnosis. I discuss summaries in chapter 11 of my book, Better Legal Writing.
- Require the writer to write a short (10 words max) summary of every paragraph in the analysis and then, while reading through the summaries, ask these questions: Does this idea connect to the preceding one? Does the topic sentence reflect that connection? Then reconsider the paragraph order and the topic-transition sentences. I call this technique the "train of thought," and it is time consuming but effective. Before a writer can implicitly and explicitly connect every paragraph, the writer must master the material. Often, really poor organization reflects lack of understanding the material. I discuss this technique in chapter 6 of my book, Better Legal Writing.
- Require the writer to meet with you and explain the analysis orally. Now lawyers tend to be much better at explaining something orally than in writing--or at least we master that skill earlier. For example, students can often explain something well when called on in class and yet not explain it well on a written exam. Still, the oral explanation should give you a good clue as to whether the writer understands the material.