Legal analysis: spotting the biggest weakness
So how do you know if the writing problems you see in a piece of legal analysis are just writing problems or are really failure to understand the substance?
The biggest clue is when the writing makes little sense. I don't know how else to say it. The writing is disjointed, disorganized, and sketchy to the point you can't be sure what the writer meant. Specific clues--
- You aren't sure which are the key authorities.
- You can't see clearly how those authorities apply to our problem.
- The issue posed on page one is not directly answered anywhere.
- The Conclusion section contains a new argument or a new authority.
Caution: We sometimes assume the writer is just dim. It is not always so. I have seen people produce bad legal analysis for reasons besides lack of brain power:
- Haste. Up against a deadline and ran out of time.
- Volume. Working on too many projects and devoting too little time to most of them.
- Laziness. Instead of reading and understanding the authorities, the writer fills the pages with quotations and paraphrased passages that sound like legal analysis.
- Apathy. The writer just doesn't care enough to get the substance down.
Tomorrow, tips for diagnosing and fixing the problem.