Friday, September 28, 2007

I couldn't get hired today

Today I received a brochure about a legal-writing program at another school. I have received a lot of these in the last two weeks. These brochures highlight the credentials of the legal-writing faculty at law schools. I am impressed, and I am struck with this thought: if I were seeking a legal-writing job today, I couldn't get hired.

Fifteen years ago, when I was hired to teach legal writing, I had really only two credentials: I had practiced law, and I was interested in writing. I had never taught legal writing, and I had no training in teaching. I had not been on law review, and I had not clerked for a judge. I had never published anything. Besides, as I now recognize, I was a mediocre writer. I was lucky to be hired.

But the last three people we have hired had great credentials. Two were on law review. Two had been federal judicial clerks. Two had been teaching assistants in the legal-writing program during law school. One had an advanced degree in library science. All three had published something. And, frankly, all three are smarter than I am.

The field of legal writing is becoming competitive. That's good. I'm just glad I got in when I did.

Thursday, September 27, 2007

Book recommendation: Party of the First Part

I highly recommend The Party of the First Part: The Curious World of Legalese by Adam Freedman.

This is the kind of book I wish I had written. Well informed, engaging, and useful.

Tuesday, September 25, 2007

Student essay: litigation bias

The Litigation Bias

In my experience, the first-year legal writing program at UT Law has a distinct litigation bias. First-year students write essentially three memorandums and, perhaps, a brief depending upon their choices of spring electives. Although there is a lot of material to address in the first-year course, focusing mostly or solely on writing for litigation orients students in a direction that may not serve their personal interests in practicing law. Offering first-year students at least a glimpse into the world of legal drafting may better prepare them to choose courses, summer positions, and internships that suit their long-term interests. My suggestion would be to add to the first-year course a class or two on the concept of legal drafting with examples of types of legal drafting. Such classes might broaden first-year students' perspectives on the options available in practice.

The litigation bias in the first-year legal writing program presumably continues for a variety of reasons. Two of those reasons could be: (1) legal writing geared toward litigation is sufficiently challenging that it requires the entire first-year course to learn; and (2) students have two additional years of law school both to learn legal drafting and to delve into practice areas related to legal drafting.

One argument for the continuation of the litigation bias in the first year is that the process of learning to write a well-crafted memorandum is time-consuming enough to require the full attention of the first-year course. It is true that first-year students face the obstacles of learning substantive law, researching skills, and legal-writing skills simultaneously. Learning memorandum formats and research skills alone, however, leaves out the important legal-drafting component of the legal-writing landscape. It would be possible to have a class or two on legal drafting without detracting from the overall goal of teaching first-year students the fundamentals of memorandum writing. Providing examples of legal drafting in the form of a contract for example would alert students to the concept that practicing law is more than litigation. Moreover, emphasizing that transactional attorneys often write memorandums in addition to legal drafting would encourage students interested in transactional practice areas to continue honing their memorandum-writing skills.

Another argument for the continuation of the litigation bias in the first year is that first-year students have two more complete years of law school both to explore practice areas outside the litigation realm and to take classes oriented toward legal drafting. It is true that summer jobs and other courses in the second and third year allow students to expand their knowledge of what it means to practice law. Often summer internships after the first year allow students to see glimpses of what litigation and transactional practices mean to make better-informed decisions about their future course schedules and long-term practice goals. Not all students have the opportunity to take additional legal-writing courses or experience real-world practice areas through internships. As a result, these students may not realize that transactional areas involving legal drafting are better-suited to their long-term goals. Introducing glimpses of legal drafting into the first-year legal writing course would even the playing field between students, allowing all students to consider transactional practices early on enough to plan their schedules and job opportunities accordingly.
________

Suggestions for further reading:
Louis Schulze, Transactional Law in the Required Legal Writing Curriculum, 57 Cleveland State law Review 59 (2007).

Student essay: in-text citation v. footnote citation

In-Text Citation v. Footnotes in Legal Writing

In-Text Citation Bad
The legal writing community should stop using in-text references. Bruce v. Establishment, 301 U.S. 397, 401, 57 S. Ct. 797, 799, 81 L. Ed. 2d 1182 (1977). Footnote form should be used instead. But see The State of Legal Writing v. Bruce, 196 U.S. 319, 324-325, 25 S. Ct. 264, 265-266, 49 L. Ed. 2d 494 (1905). Footnotes should be used in legal citation because they make reading easier. Bruce v. Hard Reading, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1452 (1977). And making it easier to read legal writing should be a goal of the legal writing community. See e.g., Schiess v. Establishment, 134 U.S. 160, 171, 10 S. Ct. 384, 387, 33 L. Ed. 2d 835 (2005).

In Schiess v. Establishment, Schiess argues that legal writing should be clear, concise, simple, organized, accurate, and correct. Id.; see also Bruce v. People Against Schiess, 301 U.S. 397, 401, 57 S. Ct. 797, 799, 81 L. Ed. 2d 1182 (1977). One way for lawyers to accomplish these goals, says Schiess, is to improve legal document design. Schiess, 134 U.S. at 174 (stating that document-design principles can improve “the neatness, readability, and accessibility of their documents”); see also In re Props to Schiess, 196 U.S. 319, 324-325, 25 S. Ct. 264, 265-266, 49 L. Ed. 2d 494 (1985) (arguing that props be given to Schiess). Schiess makes new and interesting suggestions to improve document design. See generally id. He lists eight categories of modern document-design principles that can improve the “neatness, readability, and accessibility” of legal documents. Schiess, 134 U.S. at 166 (“fonts, typefaces, justification, characters per line, line spacing, tabs, headings, and numbering”).

But Schiess doesn't address one strikingly un-neat, un-readable, and un-accessible design quality of many legal documents: in-text reference citation. See, e.g., Bruce v. Every Memo Ever, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1452 (1977); and Bruce v. Every Opinion Ever, 322 U.S. 497, 451, 59 S. Ct. 987, 989, 71 L. Ed. 2d 1452 (1976). Sometimes these citations muddle legal writing to the point of absurdity. See, e.g., Bruce v. String-Cites, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1452 (1977); String-Cites v. Bruce, 431 U.S. 547, 549, 62 S. Ct. 457, 8204, 64 L. Ed. 2d 1643 (1979); and Bruce Getting Angry v. String-Cites, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1152 (1977). In-text reference citations should stop.

Footnotes Good
Footnotes should replace in-text reference citations. Footnotes make documents easier to read.1 Also, footnotes do not change the readers' ability to have immediate access to authority.2 This is because using footnotes does not change the all-important complications of legal citation; using footnotes merely changes document design.3 Readers can pay attention to the content of the writing, and choose to “check” for authority only when necessary.4 Sure, a reader may have to veer an eye waayy down to the bottom of the page now and again.5 But this is far less intrusive than the inter-sentence barrage of italics, numbers, acronyms, and parentheticals caused by in-text legal citation.6 Footnotes good.

In conclusion, footnotes should replace in-text references in legal documents. Footnotes are a superior method of citation in terms of document design. Neatness, readability, and accessibility would all be improved by a move toward footnotes. The benefit to legal writing would be as great as other changes to design conventions like line spacing, typefaces, etc.

It may be that current conventions about proper footnote usage argue against this proposal. But legal writing is familiar with using discipline-specific citation methods. So why not use the same citation methods at the bottom of the page instead of all over it?
_________________

1. See, e.g., This Paragraph v. The Previous Paragraphs, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1452 (1977).
2. Look Down Here v. Look Between Sentences, 196 U.S. 319, 324-325, 25 S. Ct. 264, 265-266, 49 L. Ed. 2d 494 (1905).
3. Win v. Win Situation, 431 U.S. 547, 549, 62 S. Ct. 457, 8204, 64 L. Ed. 2d 5643 (1979).
4. The First Amendment Protects Speech v. Carrots Are Yellow as A Matter of Law, 134 U.S. 160, 171, 10 S. Ct. 384, 387, 33 L. Ed. 2d 835 (2005) (arguing that the First Amendment proposition may require citation but most readers shouldn't be bothered with a post-sentence study of the cited authority, while, on the other hand, the carrot proposition may require some follow-up).
5. In re Come on Down, 134 U.S. 160, 171, 10 S. Ct. 384, 387, 33 L. Ed. 2d 835 (2005).
6. In re Isn't it Ridiculous, 431 U.S. 547, 549, 62 S. Ct. 457, 8204, 64 L. Ed. 2d 5643 (1979) (arguing that it is ridiculous).

Student essay: artisans of the law

On Legal Writing

“What do you want to be when you grow up?” Each of us can recall confronting this question as a child; I certainly was no exception. Although many of my peers answered this profound inquiry with deliberate responses such as “an astronaut” or “a flower,” my considerations were a bit more complicated. And so my story begins . . .

I'm six years old. I'm reading my latest piece to my grandfather about a man who sells balloons in exchange for bananas, a tale of victory and woe. As I read the final (gripping) line, he tells me it's the best story ever written. And I know he's right: it is.

After all, I was a committed writer. And not of mere assembly instructions or soup labels, but a Writer of stories. I had recently completed a series of short stories including such popular titles as “Bobby's Messy Room” and “Pink Dinosaur Parade!” to the more obscure “The Day It Rained Pennies.”

I endeavored with a considerable success: displays on classroom bulletin boards, readings at family gatherings; sticker rewards peppered my Trapper Keeper-mostly smiley faces offering eulogistic commentary-all of which I enjoyed…for a time. But as my career advanced, I developed concerns that I was earning the reputation of a one-dimensional author of fantasy. Refusing to be pigeonholed, I resolved to prove my versatility.

Seemingly on cue, I was introduced to a new world, a world that would revolutionize my craft: it was the world of nonfiction. The floodgates opened. As I learned evidence-and-conclusion reasoning, my writing became informative and convincing rather than merely entertaining. The pink dinosaurs simply had to move their parade elsewhere; there was no longer room for such tomfoolery. After all, I was well into my preteens.

From essays to research papers to journalism, I honed my ability to process and analyze information and write succinct, accurate works accordingly. Characteristic of my earlier work, these efforts quickly garnered favorable attention. I consistently received grades of completion, new assignments, and, at the urging of select relatives, I continued my family readings. It seemed, however, that the more mature and lengthier content discouraged the rapt interest of a few former enthusiasts-Cindy, Great Uncle Al, and the like-who preferred earlier titles like “Go, Go, Go!” and “Clouds.”

I forged ahead nonetheless.

However, I grew weary. I began to realize that in embracing the gravity of adulthood to diversify my portfolio, I had abandoned the creativity of youth. Could I ever hope to combine the seemingly distant worlds of argument and imagination? I was deeply troubled. Then one night, bathed by the light of my laptop, an epiphany . . .

Legal writing! Motions and responses as varied as the colors of the rainbow! Petitions and briefs that test the limits of reality! Within this genre occurs the wondrous collision of fact and free thought, tradition and invention. This was the common ground atop which fantasy and footnotes could dance.

And so like clay pots and clay bowls spun and crafted from a single slab of clay, works of legal writing are spun and crafted from a single slab of life: the law, where the fire is reason, the sculpting hands, imagination; and the little designs carved in the sides, citations.

We are the artisans of the law. We are legal writers.

Student essay: writing plainly is what I do

Deciding to attend law school only three years ago, I was concerned that I would be ill-prepared for the demands of law school and a legal career. In particular, I feared legal writing. Throughout college, I avoided history, political science, or any other class where an essay exam would seal my fate. While I envy those who can conjure up imaginative tales, I was usually satisfied with my three-line e-mails and multiple-choice exams. But when I started law school, I found that I wasn't far behind in "Plain English" writing. My computer science background failed to impress my Constitutional Law professor, but my Legal Research and Writing professor liked my short memos.

How so? Well, I edit work e-mails for my wife, and she sometimes claims that I remove the personality. It is true; I will never win a Pulitzer Prize for "high literary quality and originality." But I can achieve a high Flesch Reading Ease score. I love using the same word for an object throughout a memo and not having to look for multiple synonyms. I love proof reading a ten page memo while others labor over a twenty-page one. It would be even better if I could combine my memo's short answer and conclusion sections.

I often check a book out of the library only to find, after finishing half the book, that the entire contents could have been contained in a pamphlet. I have read a case or two in law school, but Legalines and High Courts have served me equally well. I buy used textbooks. Not only do I save money, but I benefit from all of the pre-highlighting. Throw in an “I” for “issues” and an “H” for “holding” in the margins and half of the work has been done for me.

Perhaps I owe some of my “success” to a smaller vocabulary. It tends to favor one- or two-syllable words. Having read countless books to my two-year-old son, I can see the benefit of "See Spot run." It certainly gets the point across. Richard Lederer, who attended Harvard Law School but is better known for his "way with words," advocates using short words. He writes, “You don't have to be a great author, statesman, or philosopher to tap the energy and eloquence of small words.” A well known essay of his, titled "The Case for Small Words," is written entirely with monosyllabic words.

Becoming a lawyer seemed within my grasp when I discovered that not all lawyers are litigators. In a similar manner, becoming a good legal writer seemed within my grasp when I found out that I wouldn't have to master the art of "Legalese." Although I have much to learn in legal writing, I may have a head start in one aspect of legal writing; "simplifying" my legal writing to the level of my clients will, simply, be writing at my own level.

Legal writing isn't what it should be #8

The time pressure of law practice doesn't allow enough revising and editing to produce a quality product.

This is Bryan Garner's idea:
The modern practice of law does not tolerate the type of revisory process necessary to produce a polished product--the "well-managed" law firm has more work to do than it can complete in a given span of time.
Bryan A. Garner, A Dictionary of Modern Legal Usage 518 (2d ed. 1995).

Deadlines. Billable hours. Heavy workloads. All these prevent lawyers from taking the appropriate time to polish their writing. Even if I have 4 weeks to write a brief, that's not enough because I have 3 other briefs, 4 memos, and 8 letters to write at the same time.

Revision. Editing. Rewriting. These are what make mediocre writing good and good writing great. But lawyers don't have enough time for them.

Monday, September 24, 2007

Legal writing isn't what it should be #7

A majority of lawyers are complacent about their writing, believing something like this: "my writing is pretty good—above average or better."

When I say lawyers are complacent about their writing, I hope I do not sound too critical. I was complacent about my writing while I was in law practice and even for a few years after becoming a legal writing teacher. I think complacency about writing is a tradition in our profession. Some reasons:

When I began law school, I did not understand how important writing would be for my job. But a journalism student, for example, understands from the beginning that writing will be an important part of the job. So part of the problem is that legal education has not emphasized legal writing.

I got good grades in college and, to a certain extent, in law school. So I concluded that because I was smart, I must be a good writer. Not so. I was an average writer. So part of the problem is that we believe that smart people automatically write well.

I got a job at a major law firm, so I concluded that I must be a good writer. Not so. I was still an average writer. So part of the problem is that other successes persuade us that we must be good writers.

For three years law practice, and for my first three years as a legal writing teacher, I owned no books on the subject of legal writing (other than the textbook I used in my course). I owned no legal writing style guides. I did not own a usage dictionary. I often relied on half-remembered platitudes from junior high and high school to deal with the demands of legal writing. But certainly journalists and other nonfiction writers have and consult books on writing regularly. So part of the problem is that we are overconfident.

That's right. We think we're good. So we don't take the craft of legal writing as seriously as we should. Ask a room full of lawyers how many consider their writing to be above average, and a majority will raise a hand. Ask that room of lawyers what percentage of legal writing is above average, and most will say about 25%. "My writing is above average, but most everybody else's isn't."

Ultimately, it is perhaps simply our attitude: "As a whole, the profession disdains literary accomplishment within law . . . ." Bryan Garner, A Dictionary of Modern Legal Usage 518 (2d ed. 1995). When Garner says "literary accomplishment," I take him to mean high-level writing skill. But even if we don't disdain it, we are certainly satisfied in falling short of it. We are complacent.

Legal writing isn't what it should be #6

Many lawyers maintain a misguided sense of professionalism, which often leads to an unnecessarily formal writing style that ignores audience needs.

Young lawyers, I forgive. They do not always know which words and constructions are necessary in legal writing and which are fluff. Besides, they're learning a new language. It's the goal of the novice to master the legal language, whatever it is. So when young lawyers, out of a misguided sense of professionalism, try to “sound like lawyers,” I forgive them.

But when an experienced lawyer writes in a fluffy, legalistic, hyper-formal style, I'm unhappy. It should be the goal of the expert to shed legalese. It should be the goal of the expert to not sound like a lawyer. It should be the goal of the expert to communicate, not to impress. Besides, almost no one is impressed by traditional legal language.

Yet I've had lawyers tell me they need to write in a formal, legalistic style so clients are mildly intimidated. The intimidated client needs the lawyer. I've had lawyers tell me clients prefer and expect traditional legalese. The legalese reassures them. And although no lawyer has ever said it to my face, some lawyers take pride in sounding stuffy and formal.

Anyone who reads this blog knows I reject these positions. And I’m not alone in suggesting that writing in a way that requires a client to consult a lawyer to understand the document is a bad thing: “We cannot in justice to our job expect the client to employ us to interpret our own documents nor should we require him to consult our professional brethren for this purpose.” Sidney F. Parham, Jr., The Fundamentals of Legal Writing 72 (Michie Co. 1967).

Mr. Parham said that40 years ago.

Instead, I believe, clients prefer and respect those who can write in everyday English:
If the clients can read the contract more easily and resolve contract questions themselves, doesn't that mean fewer billable hours for the lawyer? My experience is that clients—on both sides of a negotiation—respect the lawyer’s ability to express ideas clearly. When they see good writing, they are less likely to try to do it themselves. While most business people can fake “legalese,” writing in plain English takes practice. It takes real talent to express complicated legal, technical, financial, and commercial ideas in a straightforward way.
David T. Daly, Why Bother to Write Contracts in Plain English?, 78 Michigan Bar Journal 850 (1999).

Friday, September 21, 2007

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.

Thursday, September 20, 2007

Legal writing isn't what it should be #4

Lawyers rely on precedent documents that are often poorly written.

Well, duh.

If, as I say, legal writing is not what it should be, then when we rely on a previous document, we are often relying on something that is not well written. And I'm not talking only about transactional drafting here. Many lawyers rely on forms for letters, court documents, and other types of nontransactional documents.

Why do lawyers use forms (or “templates” or “precedent documents” as some prefer to call them) ?

To save time, to save money, to give clients a better value, and to take advantage of previous documents that have worked.

So forms are a necessity. No lawyer can get by in a typical practice today without them. The time and expense that would result from writing everything from scratch would be enormous. But forms have at least four drawbacks.

First, forms foster haste and laziness because they can be used so easily. David Mellinkoff said that “[t]hey are a quick, cheap substitute for knowledge and independent thinking.” David Mellinkoff, Legal Writing: Sense and Nonsense 101 (West 1982). For example, if this transaction seems the same as a previous transaction, the form from the earlier transaction can be converted to a draft for this transaction very quickly. It really is just a matter of changing the names and the dates. But just because it can be done quickly does not mean it should be. The belief that a form can be quickly adapted to a new transaction isn't wrong, but it produces a sense of ease—often a false one. That sense of ease is one of the biggest drawbacks of forms. It contributes mightily to poor legal writing.

Second, forms often contain outdated language and formats. A cardinal rule: you might trust the form to be right on the law or the necessary terms, but you shouldn't trust the form to be well drafted. According to Thomas Haggard, “[t]he best thing about [form] books is often not the language they suggest for specific provisions (which is usually atrocious), but rather the factual checklists they contain.” Thomas R. Haggard, Contract Law From a Drafting Perspective 10-11 (West 2003). In truth, forms are notorious for wordy, archaic usage and excessive formality. More bad legal writing.

Third, forms often contain language and provisions created by several different writers. The result is a patchwork of styles. That may not seem such a terrible thing in a genre of writing that Kimble says is supposed to be “devoid of any writer’s voice.” Joseph Kimble, How to Mangle Court Rules and Jury Instructions, 8 Scribes J. Legal Writing 39, 52 (2002). But the problems run deeper than voice: “[V]erbatim inclusion of a clause lifted from someone else's document can and will create anomalies of style that not only offend the artistic sensibilities . . . but frequently lead to confusion and ambiguity.” Sidney F. Parham, Jr., The Fundamentals of Legal Writing 16–17 (Michie Co.). The result, again, is bad legal writing.

Fourth, forms often contain unnecessary terms, irrelevant language, and problems of accretion. In other words, as Howard Darmstadter says, lawyers never seem to cut language from a form; they only add: “Forms tend to grow by accretion, with many persons adding paragraphs and clauses without much understanding of what has gone before. The result is frequently a form whose numerous intricacies and subtleties are invisible to all sides.” Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 28 (ABA 2002). Besides, the form gets longer and longer and the writing gets worse and worse. Bad legal writing.

Wednesday, September 19, 2007

Legal writing isn't what it should be: #3

Lawyers imbibe lots of poor writing in judicial opinions.

When you are in law school, you read lots and lots of judicial opinions. These judicial opinions were not chosen for their writing style; they were chosen for their content. Once you begin practicing law, you continue to read judicial opinions. After all, this is a common-a law nation, and the rule of precedent requires you to research and read judicial opinions to answer many legal questions.

But many judicial opinions are poorly written, and most are mediocre at best. One commentator has said that lawyers, in their reading, are exposed to “the largest body of poorly written literature ever created by the human race.” John M. Lindsey, The Legal Writing Malady: Causes and Cures, N.Y. L.J., 2 (Dec. 12, 1990).

I don’t mean to be hard on judges. Their writing isn't any worse than the writing of practicing lawyers or law professors. It’s just that their writing is subject to a lot more scrutiny. But because we spend so much time reading judicial opinions, their words, rhythms, and patterns enter our brains. We begin to think and write like the judicial opinions we read. That’s not good.

_____

It is possible to improve judicial-opinion writing, and here is a good place to start:

Joseph Kimble, The Straight Skinny on Better Judicial Opinions, Mich. B.J. 42 (Mar. 2006).

Tuesday, September 18, 2007

Legal writing isn't what it should be: #2

Law schools must focus on teaching legal analysis, leaving little time to focus on finer points.

I may sound like a whiner, but the truth is that there is so much to cover in teaching written legal analysis to novices that you can't do much else--especially if you give them chances to practice and learn from feedback. Here is a list I compiled that tells what I try to teach in my first-year legal-writing course. I hope you'll see why I haven't much time for focusing on the things that would make mediocre legal writing good or good legal writing great:

I try to teach students how to--
  1. Determine the question raised in a legal problem.
  2. Express a legal question effectively in writing.
  3. Determine the legally relevant facts of a legal problem.
  4. Determine the contextually relevant facts of a legal problem.
  5. Express the legally and contextually relevant facts of a legal problem effectively in writing.
  6. Determine the best course of research for a legal problem.
  7. Find relevant authorities to analyze a legal problem.
  8. Choose the appropriate authorities to use to analyze a legal problem.
  9. Order the authorities to be used to analyze a legal problem
  10. Present the appropriate authorities effectively in writing.
  11. Analyze a legal question in light of the authorities.
  12. Express the legal analysis in writing.
  13. Recognize possible counter-analyses.
  14. Express a counter-analysis effectively in writing.
  15. Use correct citation form and placement.
  16. Use correct and appropriate conventions of legal writing.
Now make them all into good stylists? When?

Legal writing isn't what it should be: #1

Our primary and secondary education system doesn't adequately emphasize writing education.

I won’t back up what I’m about to say with research. But I assert there is as consensus among those in higher education that our primary and secondary education system does not adequately emphasize writing skills.

Sometimes this is because the particular choice of study uses a curriculum that does not require expository writing. I have some science and engineering students who arrive at law school telling me they never wrote a paper in college.

Sometimes this is because the type of writing required in high school and college is what I call “self-expression writing.” In other words, the writing focuses on the writer, not the reader. Whether you have clearly and effectively conveyed information to the reader is of secondary importance to whether you have expressed yourself the way you want to.

Sometimes this is because writing education is labor-intensive, resource-intensive, and not very glamorous. It’s expensive and no fun to teach writing. This reality affects the way English and writing are taught: I’ve had many English teachers confirm that in a college English department, those who teach literature tend to be tenured and have higher status, and those who teach composition tend to be untenured and have lower status.

These three causes mean that the two main things students need to improve their writing—training and practice—are inadequate.

Thursday, September 13, 2007

Why legal writing isn't what it should be

  1. Our primary and secondary education system doesn't adequately emphasize writing education.
  2. Law schools must focus on teaching legal analysis, leaving little time to focus on finer points.
  3. Lawyers imbibe lots of poor writing in judicial opinions.
  4. Lawyers rely on precedent documents that are often poorly written.
  5. Many lawyers writing a legal analysis digest the authorities superficially; many doing drafting understand the transactions superficially.
  6. Many lawyers maintain a misguided sense of professionalism, which often leads to an unnecessarily formal writing style that ignores audience needs.
  7. A majority of lawyers are complacent about their writing, believing something like this: "my writing is pretty good--above average or better."
  8. The time pressure of law practice doesn't allow enough revising and editing to produce a quality product.

Wednesday, September 12, 2007

Avoiding acronyms and initials

An attorney wrote this, responding to a Ninth Circuit opinion criticizing overuse of acronyms and initials in environmental-law cases:

“If the [Ninth Circuit] wants attorneys to eschew the use of initials and acronyms in environmental cases, the judges ought to relax page limitations on briefs accordingly.”

I take a different view. I offer these approaches and recommend number 3, admitting that this example is oversimplified but believing that the principle applied in number 3 can work well for most initials and acronyms:

1. The Bureau of Land Management (“BLM”) issued a policy statement on December 5, and the plaintiffs admit they knew about the policy. (R. at 4.) But even if the BLM had never issued a policy statement . . .
  • The Ninth Circuit apparently doesn't like this approach, especially when it multiplies the initials.
2. The Bureau of Land Management (“Bureau”) issued a policy statement on December 5, and the plaintiffs admit they knew about the policy. (R. at 4.) But even if the Bureau had never issued a policy statement . . .
  • This avoids the initials, so the Ninth Circuit would like this approach, I guess.
3. The Bureau of Land Management issued a policy statement on December 5, and the plaintiffs admit they knew about the policy. (R. at 4.) But even if the Bureau had never issued a policy statement . . .
  • If there is only one Bureau mentioned in the document, can't this work?

Monday, September 10, 2007

Better class-action notice

I gave it a shot. My thinking on class-action notices has been influenced by the the Federal Judicial Center's Illustrative Forms of Class Action Notices. In 5 minutes, I produced this to replace the first two parts of the original:

Revised class-action notice

[caption]

If you own common stock in Company, you may have rights in a class action and another lawsuit against Company.
  • You need to have owned the stock some time between January 1, 1995, and March 22, 2007.
  • You may have rights even if a broker or agent held the stock for you.
This notice explains that the lawsuits may be settled. The court will hold a hearing about the proposed settlement on October 5, 2007.

Bad class-action notice

If jury instructions represent the worst failing of legal writing, class-action notices are not far behind. We know these notices need to be read and understood by nonlawyers, but we still produce this:

[Caption omitted]

NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION AND DERIVATIVE LITIGATION AND SETTLEMENT HEARING

TO: ALL RECORD AND BENEFICIAL HOLDERS OF THE COMMON STOCK OF COMPANY, INCLUDING ALL OF ITS PREDECESSORS, DURING THE PERIOD BEGINNING ON AND INCLUDING JANUARY 1, 1995 THROUGH AND INCLUDING MARCH 22, 2007.

PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE AFFECTED BY THE LEGAL PROCEEDINGS IN THIS LITIGATION. BROKERAGE FIRMS, BANKS, AND OTHER PERSONS OR ENTITIES WHO ARE MEMBERS OF THE CLASS IN THEIR CAPACITIES AS RECORD OWNERS, BUT NOT AS BENEFICIAL OWNERS, ARE DIRECTED TO SEND THIS NOTICE PROMPTLY TO BENEFICIAL OWNERS.

The purpose of the notice is to inform you of this lawsuit (the “Action”), a proposed settlement of the Action (the “Settlement”), and a hearing to be held by the Circuit Court (the “Court”), on October 5, 2007, at 1 p.m. (the “Settlement Hearing”), at which the Court shall consider for approval: (i). Whether this Action will be certified as a class action, for settlement purposes only, pursuant to Rule of Civil Procedure 23; (ii) whether the terms and conditions of the Settlement are fair, reasonable, adequate, and in the best interests of the Class and Company; (iii) whether the Final Order should be entered dismissing this Action as to the Defendants with prejudice as against Plaintiffs and the Class, releasing the Settled Claims, and enjoining prosecution of any and all Settled Claims; (iv) the award of Plaintiffs’ counsel’s attorneys’ fees and expenses as provided for herein, as to which award Company has agreed to pay $7.5 million; (v) any objections to the Settlement; and (vi) such other relief as the Court may deem necessary and appropriate. Any of the dates set forth herein may be modified by the Court without further notice. The Court reserves the right to approve the Settlement at or after the Settlement Hearing with such modifications as may be consented to by the parties to the Stipulation and without further notice to the Class.

BACKGROUND OF THE ACTION

THE DESCRIPTION OF THE ACTION AND THE SETTLEMENT WHICH FOLLOWS HAS BEEN PREPARED BY COUNSEL FOR THE PARTIES. THE COURT HAS MADE NO FINDING WITH RESPECT TO SUCH MATTERS, AND THIS NOTICE IS NOT AN EXPRESSION OR STATEMENT BY THE COURT OF FINDINGS OF FACT.

Jury instructions: some before-and-after language

Professor Joseph Kimble had said that "the traditional language of jury instructions, while maybe not the worst legal writing, represents the worst failure of legal writing." This is because life, liberty, and property are on the line when lawyers write to jurors, and we've done a poor job. Here are some jury instruction before and after. They're not perfect, and the changes aren't even that dramatic. But when tested, the revision scored better than the original with mock jurors.

Original
Do not conceal information or give answers which are not true. Listen to the questions and give full and complete answers.

Do not make personal inspections, observations, investigations, or experiments nor personally view premises, things or articles not produced in court.

If you do not obey the instructions I am about to give you, it may become necessary for another jury to re-try this case with all of the attendant waste of your time here and the expense to the litigants and the taxpayers of this county for another trial. We shall try the case as fast as possible consistent with justice, which requires a careful and correct trial.

Revision
Be honest when the lawyers ask you questions, and always give complete answers.

Do not view or inspect places or items from this case unless they are presented as evidence in court.

If you don't follow these instructions, I may have to order a new trial and start this process over again. That would be a waste of time and money, so please listen carefully to these instructions. I assure you we will handle this case as fast as we can, but we cannot rush things. We have to do it fairly and we have to follow the law.

Friday, September 07, 2007

70s song lyric of the week

I want to find a way to use these lyrics in teaching legal writing; I welcome your ideas:
Billy Mack is a detective down in Texas.
You know he knows just exactly what the facts is.
He ain't gonna let those two escape justice.
He makes his livin' off of the people's taxes.

Wednesday, September 05, 2007

Bullets: more advice

Schiess says:

You can add bullets to tabulated material, and you should. Follow these guidelines: if the tabulated text contains examples or suggestions, use bullets; if the tabulated text contains formal parts of a formal document (like the buyer’s options in a contract), use numbers. The general rule is this: if you will need to refer to the items later, give them numbers. Later reference to “3(a)(2)” will be easier than to “the second bullet under (3)(a).”

Wayne Schiess, Better Legal Writing: 15 Topics for Advanced Legal Writers 33 (W.S. Hein 2005).

Advice for using bullets

Garner says:
  • End your introduction to the bulleted list with a colon. It serves as an anchor.
  • Ensure that the size of your bullets is proportional to the size of your type. You don’t want overpowering bullets; the best bullets are typically just smaller than a lowercase “o” filled in with ink.
  • Adjust your tab settings so that you’ll have a small tab between the bullet and the text. Space the tabs so that they look about the way you see them throughout [Garner's] book—about .15 inches evenly across the line, with a larger space for a paragraph indent.
  • Use a hanging indent. That is, don’t allow the text to wrap under the bullet; instead, leave the bullet hanging out to the left. If you don’t already know the word-processing function for this, you’ll need to learn it.
  • Single-space within bulleted items. If you have longish bullets, though, you may decide to double-space between them. But try to keep your bullets fairly short.
  • Keep your items grammatically parallel (start each one with a verb, a noun, etc.).
  • Resist the temptation to play with computer-generated boxes, arrows, check marks, and other eye-catchers. Nothing else works quite as well as a bullet.
Bryan A. Garner, Securities Disclosure in Plain English 57 (CCH 1999).

Tell me about the case . . .

Good advice that more lawyers and law students should follow:
Refrain from describing the facts of precedents that you will not be comparing to your case. Just because you cite a precedent in your memorandum does not mean you must describe it in detail. Some precedents are important because they state the rule clearly and coherently, others because they described the policy underlying the rule, still others because their facts are sufficiently similar to your case that they can be used to make apt comparisons.
Austen L. Parrish & Dennis T. Yokoyama, Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument 77-78 (Carolina Academic Press 2007).

Tuesday, September 04, 2007

Long email messages: ease the reader's way

Quoted from David Angell & Brent Heslop, The Elements of E-mail Style:

E-mail messages come in all sizes. If you are sending an e-mail message that is longer than a few screenfuls, take special care to keep the reader interested. Here are some tips for creating long messages.
  • In the first screen of your message, include a table of contents that covers the important points of your message.
  • If you need to solicit a response from the recipient, do it in the first screen.
  • Include an executive summary of your message in the first screen. . . .
  • Use whitespace and other graphic devices such as lines composed of hyphens or asterisks to enhance message readability. . . .
  • [Use] headings [to] break up long messages.
David Angell & Brent Heslop, The Elements of E-mail Style 28 (Addison Wesley 1994).