Legal writing: peer review in the office

Suppose your law office is going to implement a program of peer review as a way to improve the writing of the lawyers in the office. I think this is a good idea, but you've got to take some steps to make sure the program works.

1. Adopt a style guide or have one produced. You will need a way to settle disputes about proper grammar, punctuation, usage, and form. Without a way to settle disputes, the documents the office produces will not be consistent. And consistency is usually one of the goals of a peer-review program.
   
   
2. Increase the writing IQ of everyone in the office. Provide training, insist that everyone read a certain source or sources on writing, and foster a respect for the modern approach to high-level professional writing.
   
   
3. Teach people how to critique. The ability to effectively comment on others' writing is not an inherent talent, it's a learned skill.

Any office that decides to use peer review to improve writing is to be commended.

Persuasion: avoid italics for emphasis

It's a fairly broad principle that you should not overuse italics (or boldface or underlining or whatever) for emphasis in persuasive writing because it will wear thin quickly and annoy your readers. One of several sources on this point is the Texas Law Review Manual on Usage & Style, 10th edition at page 41.

But what can you do instead? Try placing the word or phrase to be emphasized at the end of a sentence, where it will get emphasis naturally. The beginning of a paragraph is also a natural stress point. Here's an example of end-of-sentence placement:

Original
This statute only applies at the inception of a case and is a completely different requirement than obtaining a qualified expert that will ultimately testify at trial.

Revision
This statute applies only at the inception of a case. The requirement of obtaining a qualified expert who will ultimately testify at trial is completely different.

I made other changes here, too: moved "only" to directly before what it modifies, made two sentences out of one, changed "expert that" to expert who," and avoided the nonpreferred construction of "different . . . than."

Legal analysis: synthesizing authorities

A commenter writes:

• One thing I have noticed in youngsters' briefs that is rather odd is a failure to synthesize the law and the facts of a particular case. They will state the facts, state the law, and then draw a conclusion without explanation.

This is very true. I would say about 40% of my time in the basic first-year legal-writing course is spent trying to get students to synthesize. It has been so for the 14 years I have been at it.

This falls into the category I call "specify, specify, specify." Do not merely state a legal principle and then assert a conclusion. Specify how the conclusion derives from the principle in light of the facts of your case.

Persuasion: literary reference or device?

Another commenter wrote--

The effectiveness of any literary device--simile, metaphor, irony, hyperbole, and so on--can be persuasive for some readers in some circumstances.

• That's right. I just want to clarify that my suggestions here were about literary allusions or references, not literary devices, which are not really risky and are used all the time. Like any writing technique, they can be overdone, but generally I like them. I think the commenter knows that; I'm just clarifying to put my mind at ease.

Persuasion: responses on literary references

Responding to my suggestion that literary references are risky, commenters said--

I worry that some people want to take all the art, the craft, and the fun out of legal writing. What are we telling our young lawyers? It's okay to get a broad liberal education but, for God's sake, keep it to yourselves. Fie on this risk-averse approach to legal expression. Set yourself free. Soar. Sing. Just as long as you are making good legal sense.

And--

I must agree . . . Our "art" is far too staid as it is. I find that my biggest challenge is to engage the judge in the first place. He is often over-worked and bored to tears with the usual fare he is served. Sometimes an ice-breaker is just the thing. If the reference is clear and directly relevant, I see little risk.

And--

I like the literary or historical reference; it must be apt, but that's true of authority as well.

Wayne says--
Excellent points, well made. But I stick to my original advice. Literary references are risky. Not RISKY! Just risky. The standard that the reference must make sense even if the reader isn't familiar with it still stands--for me, anyway. I think the three commenters would probably agree.

Two related points:

1. Undergraduate education these days is not grounded in the classics of western civilization and hasn't been for a while. Bemoan it if we want, but it's true. I just read a report of reading habits of pre-law students, and they are not reading the classics. By the way, the book most hated among them was The Scarlet Letter. I myself majored in Japanese in college, so I prefer a piece of writing that has more quotations from Basho than Plato.
   
   
2. The yearning for art and craft and fun in legal writing is nice, but I'm more impressed by someone who can make a complicated topic simple than I am by someone who can toss in a Shakespearean reference or a biblical one.

Question: How do I improve?

A lawyer sent me this question.

• If I am not a great writer, what types of things would you recommend to improve upon this skill?

First, stop saying "improve upon." (Just a joke.)

I think mainly two things will help you improve, and they are equally important.

1. Study. You must study the principles of good writing, and you must keep studying consistently. I say every lawyer should have two or three writing guides in the office and should read a book on legal writing every year. If you really want to improve, read a few each year.
   
   
2. Practice. You must try what you are learning. You must experiment, and you must be critical of your own work, measuring it against the standards in the books you are studying.

Some say practice alone is enough. I disagree because then you tend to repeat your own mistakes and never improve. Some say reading great writing is enough. I disagree and, actually, believe reading great writing is of little value. You are reading to be entertained or informed, not to learn to write. You just don't pick up that much from reading great writing.

Some say say you should seek critique and welcome candid suggestions for improving your writing. This I agree with, and it is perhaps part of practicing. But please get the critique from someone knowledgeable--someone who has read the sources on good writing.

News: I will blog again

I have been distracted and busy for the last few weeks. I helped test original and revised jury instructions. I graded briefs. I watched TV. I was pretty busy.

I will blog again now, and will soon post a summary of the comments I received on literary references, with my responses.