Legal writing isn't what it should be #5

Many lawyers writing a legal analysis digest the authorities superficially; many doing drafting understand the transactions superficially.

I have said before on this blog that the failure to fully understand the authorities and analysis is one of the most common causes of poor legal writing. I base this assertion on my experience teaching novice legal writers and tutoring young lawyers. When the description of the authorities is rote, when the analysis is superficial, and when the connections between ideas are weak or missing, I suspect one culprit: failure to understand the material.

Failure to understand can muck up transactional drafting, too. It's not surprising that a novice lawyer has a hard time understanding the intricacies of a sophisticated transaction. I confess that as a novice transactional lawyer at a large law firm, I often had little idea how the transactions actually worked. I should have tried harder to gain that understanding, and so should every novice lawyer.

But given the way traditional transactional documents are written, the text won’t help novices understand the transaction. As one of my students recently commented, “Many times when reading real-world contracts, I sit wondering why a certain sentence was structured so awkwardly and with such arcane language. The language becomes a hurdle to understanding the mechanics of the contract.”

So with transactional drafting, it is a vicious cycle: the transaction is complex, but the text doesn't aid understanding, so the novice relies on arcane form documents, which keep transactions impenetrable.

Why don’t lawyers master their analytical and transactional content more thoroughly? Maybe they’re lazy. Maybe they’re just not that smart. Or maybe the work they’re producing is good enough—it gets the job done.

But most likely, it is that lawyers are always busy, under a deadline, and in a rush.