Wayne Schiess's legal-writing blog. Home is here: Legalwriting.net
Suppose I decided to replace instruction in brief writing with instruction in legal drafting (transactional drafting) in the required, first-year legal-writing course. How could I justify that?
[Plain language] has a bad name among some lawyers. This is usually because they don't understand enough about it to judge it properly. --Michele M. Asprey, Plain Language for Lawyers 11 (2d ed., Federation Press 1996).
A related bonus of a plain language style is the potential for reducing mistakes. Traditional legal language tends to hide inconsistencies and ambiguities. Errors are harder to find in dense and convoluted prose. Removing legalese helps lay bare any oversights in the original. --Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language 89 (Cambridge U. Press 2001).
7 Comments:
My perspective is that of an about-to-be-a-3L who is beginning to practice as a student writing briefs.
I would suggest that brief writing (and general persuasive writing) is critical. Granted, I would be interested in drafting, but I think persuasive writing is important for both practice and school. Many exam questions, at least at my school, ask the student to take positions and advocate.
I also tend to think that since drafting (it seems to me, though I clearly lack experience) is fairly dependent on the substantive law. I'm not sure a first-year student would get as much out of it as someone who has been working with the law a while.
The qualities of good transactional writing - organization, clarity, thoroughness, etc. - and the skills needed to be a good transactional writer are not antithetical to good brief writing; they are complimentary . So, by teaching students how to be good transactional writers, you are concomitantly helping them to be good brief writers. Transactional writing also requires analysis - what does this clause mean?, is this agreement enforceable? - but it is done "off the page". In contrast, the analysis required for brief writing is included within the document.
However, many young lawyers do write more brief-like documents, whether writing a memo as a junior associate or drafting an opinion as a law clerk, than they do transactional documents. Therefore, they may find instruction in brief writing to be more immediately applicable to their careers.
On the other hand, some lawyers feel that learning to write briefs comes easier because it requires a theoretical approach more akin to what they experienced in class in law school, whereas transactional drafting is a more technical skill that is learned mostly through trial and error. In that sense, a class in transactional writing may be more helpful because it is a harder skill to develop on the job.
I would add drafting to the curriculum, but I wouldn't displace persuasive writing to make room for it.
I am from the parallel universe, but I wonder...
Why not teach them to write a sound legal memorandum and letters of opinion?
They will write many more of those than briefs and they may never become transactional lawyers.
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