The Lawyer's Guide to Writing Well

Preface

The first edition of this book was written in 1988, at a time when many critics were bemoaning the state of legal writing but few were doing anything about it. Between October 1987 and June 1988, we asked 650 people familiar with legal writing—practicing lawyers, judges, professors, writing instructors, and journalists who report on legal topics—what bothered them most about the way lawyers write. We do not pretend that our survey was scientific: We sent a four-page questionnaire to people listed on our Rolodexes. As journalists we had covered law and the legal profession since the early 1970s for a variety of news media, and our list included thoughtful lawyers and writers in half the states and every major city; most major law firms, scores of smaller firms, and courts; law schools; and newspapers, magazines, and broadcast stations across the country. The answers from 300 respondents inform a portion of this book. People named in the text but not identified in the notes were respondents and are identified in the acknowledgments. Unattributed statements about what lawyers, judges, professors, writing instructors, and journalists "think," "feel," or "believe" are drawn from the statements of these respondents, as are some of the displayed quotations.

In the dozen years since the first edition appeared, there have been vast changes in the technology of communications—the ways in which lawyers produce and distribute their letters, memoranda, briefs, and other documents. In the late 1980s, desktop computers were beginning to find their way into lawyers' offices, but probably few lawyers used them regularly or proficiently. (Indeed, lawyers at some firms told us they were forbidden to touch a computer; managing partners in those days viewed the "word processor" as a tool for secretaries and typists, not professionals.) By today's standards, early desktop computers were clunky machines, though surely useful and already then revolutionizing the production of legal paper. Although laser printers became available, few offices had hooked them to their computers or were realizing their potential to supplant the print shops to which at least the more formal of their documents continued to be sent. The desktops of the 1980s were only beginning to be networked; e-mail was scarce or nonexistent; lawyers were untrained in computerized legal research; and no one in the legal world had then heard of the Internet.

For all of the rapid improvement in communications technology since 1988, legal writing has improved little, if at all. Law offices around the country, busier than ever, have largely defaulted in training their newcomers. The large law firms hired so many new associates during the 1990s that they found it impossible to provide the one-on-one training in writing and editing that had been customary until sometime in the 1960s. Government legal offices and smaller firms have little time and few resources to devote to the task. Their response to poor writing by their young lawyers is to blame the law schools.

The law schools, of course, would assign the blame elsewhere. During the 1990s most American law schools established (or beefed up) their legal writing program, usually a yearlong course in writing and research. These programs and courses were spurred by the "MacCrate Report" of the American Bar Association in 1992.Named after its chairman, New York lawyer Robert MacCrate, the Task Force on Law Schools and the Profession called on the law schools to add communication skills to their educational objectives. The cry for greater clarity in communication, however, has not led to serious curricular reform. Most law school classroom instruction remains oral, and full-time professors devote almost no time to critiquing their students' written work. Even in legal writing courses, writing often takes a backseat to legal analysis, research, and the formats for motions, briefs, and other legal documents. For all the talk about legal literacy, writing instructors have the lowest prestige and the smallest claim on the resources of the law schools in which they work. The consequence is that the law schools remain unequipped to deal with a generation of increasingly ill prepared college graduates who clamor for admission.

Our hearts sank when we read in the Columbia law school newspaper in 2001 about a well-meaning but flawed effort to educate Columbia law students about writing. Professor H. Richard Uviller, a published author of nonfiction intended for a broad audience, did what no other Columbia law professor had ever done—offered a course on basic writing. "I call this the tenth-grade English class that you never took," Uviller told the newspaper. "It's a class in basic grammar, syntax, style and usage."Remarkably, 160 students—just under half the first-year class—enrolled for this noncredit course. They were divided into two sections, an impossibly high number of students. Writing needs to be taught in small sections, preferably no more than 15. In this course, no papers were required, surely an odd way to learn a skill for which practice is obligatory.

Nearly fifteen years after we began the first edition of this book, lawyers still write poorly.

 

1   Does Bad Writing Really Matter?

 

Most lawyers write poorly.

That's not just our lament. Leading lawyers across the country agree. They think modern legal writing is flabby, prolix, obscure, opaque, ungrammatical, dull, boring, redundant, disorganized, gray, dense, unimaginative, impersonal, foggy, infirm, indistinct, stilted, arcane, confused, heavy-handed, jargon- and cliché-ridden, ponderous, weaseling, overblown, pseudointellectual, hyperbolic, misleading, incivil, labored, bloodless, vacuous, evasive, pretentious, convoluted, rambling, incoherent, choked, archaic, orotund, and fuzzy.

Many critics amplified: Lawyers don't know basic grammar and syntax. They can't say anything simply. They have no judgment and don't know what to include or what to leave out. They do not know how to tell a story—where to begin, when to end, or how to organize it. They get so carried away with their advocacy that they distort and even deceive.

 

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The difficult task, after one learns how to think like a
lawyer, is relearning how to write like a human being.

Floyd Abrams

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So what? Does poor writing matter? It's commonplace to say that it does.

What are its consequences? That's a harder question to answer.

Justice Alvin F. Klein of New York State Supreme Court in Manhattan once embarrassed opposing lawyers in a divorce case by saying in open court that he could not understand the papers filed by either of them.He ordered the lawyers to rewrite their motions and objections.

The judge's impatience stands for more than the passing mortification of two practitioners or the wasting of several hours in drafting undecipherable papers. Judges rarely comment on the style or intelligibility of documents they read, though not for want of opportunity. Perhaps judges are reluctant to do so because they know their own prose could be ridiculed next. In admonishing the lawyers, Justice Klein rambled a bit himself: "Upon a careful reading of all the voluminous papers submitted herein, the court is frank to state that it cannot ascertain the basis for the relief sought by the plaintiff on the motion and by the defendant on the cross-motion." But Justice Klein diagnosed a soreness that afflicts the practice of law throughout the country. Perhaps it is not a fatal disease but a wasting one: a canker if not a cancer.

The consequences of poor legal writing are simple to state though difficult to prove:

• It wastes the valuable time of judges, clients, and other lawyers, who must constantly reread documents to figure out what is meant.
• It costs law firms a lot of money; they must absorb the time of senior lawyers who are forced to rewrite the work of junior ones.
• It costs society; we all pay for the lost time and the extra work.
• It loses cases. Briefs and memoranda and letters that do not adequately convey a writer's point give adversaries who are better writers the opportunity to portray their own positions more persuasively and sympathetically.
• It can lead to disrespect for or indifference to law. The public can't understand what lawyers are saying because the law itself is almost always obscure, and the lawyers' attempts to explain it are rarely clearer.
• It erodes self-respect. Hurried, careless writing weakens the imagination, saps intelligence, and ultimately diminishes self-esteem and professionalism.
• It impoverishes our culture. Writing well in a calling that prides itself on professionalism in pursuit of justice ought to be an end in itself.

Despite these consequences, many lawyers fail to connect good writing to good lawyering, probably because it is rarely possible to quantify the costs. We doubt that lawyers would offer to reveal, or that accountants would leap at the opportunity to prove, the dollar value a particular document cost the firm or the client or society because it was poorly written. And who can measure the injustice that obscurity fosters? So lawyers dismiss the consequences of their inability to express themselves well.

 

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Writing to me is just writing—not legal or otherwise.

Louis A. Auchincloss

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Writing is a waste of time," said a young associate at a midsized New York firm, which had hired us to tutor incoming lawyers. "We sell time, not paper." He could not be more mistaken. Good lawyers may rightly measure the value of the paper they sell by the time it takes to put words onto it, but if the document is unreadable, clients are not impressed—or should not be—that a lawyer has spent endless hours on their behalf. Good lawyers must devote their time to producing effective prose, but that is time well spent.

The more important a lawyer, judge, or case, the more important clear writing becomes.

 

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One can be a good lawyer or judge and a bad writer,
but not a great one without being a good writer.

Stuart Berg Flexner

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Good lawyers are genuinely interested in words, in their nuances, in the subtle distinctions between them, in the growth of the language. Good lawyers browse through usage books now and again, not from pedantry but from fascination with language and the power of writing. Good lawyers revere English—and edit their work one more time to ensure that they have expressed their thoughts with the clarity and felicity that they owe to their clients, to the public, and to themselves.

Those for whom writing is unimportant are doomed to be second-rate lawyers. The connection between good writing and good professional work is not peculiar to lawyers. But because lawyers' work, more than that of other professionals, consists of writing, a lawyer's disinclination to write well is the more disheartening—and potentially the more disastrous. Bad lawyers scorn the craftsman unremunerated for his pains. These lawyers, at best, produce workmanlike prose—they know some rules of usage—and settle for the pedestrian. Bad lawyers, neglecting their craft, risk their livelihood—or certainly their clients'.

Lawyers who ignore the art of writing, who leave their prose rough, murky, and unedited, are not simply foolish; they are guilty of malpractice. Unhappily, this form of malpractice is widespread.

George D. Gopen, a lawyer and director of the writing programs at Duke University, uses an elaborate metaphor—the "toll booth syndrome"—to describe how lawyers write. Late on an arctic night as you drive home from an exhausting day's work, you toss your last quarter at the toll basket—and miss. You can back up and pay the toll collector in another lane, or you can go through the red light just ahead of you. Your choice depends on what you think the toll is for. If it is to help finance road repairs, then you should back up and pay. But if you suppose the purpose is simply to divest drivers of loose change, you will go through the light. The money is not in the road authority's hands, but it is not in yours either.

So, says Gopen, lawyers write, without thinking about the purpose of doing so:

You cast all of your knowledge on the subject out of your mind onto the paper, not caring if the audience will actually receive your 40¢ worth of wisdom, but caring only that you unburden yourself of it. It's all out there—on the paper, in the gravel—and that is what matters.

Of course, that is not what matters. . . . [Lawyers] get all the relevant information down on the paper; they refer to all the possible issues and suggest a number of different approaches and counterapproaches; and all the while they have no perception of how a reader not already knee-deep in the case will be able to wade through it all.

The widespread feeling that good writing does not count is puzzling in a profession that demands its practitioners be well educated. Every state requires prospective practitioners to spend three years at law school, where students learn the substance of law. But the schools largely neglect the skills of practice. Although most law schools offer "clinical" courses, showing how to build a client's case and how to guard against an adversary's, they are costly and can enroll relatively few students. In theory, the law schools offer somewhat more in writing instruction: at most law schools all first-year students take a required "writing" course. But these courses, often taught by low-status writing instructors without tenure or hope of getting it, carry few credits and deliver little in the way of a sustained critique of writing. The accrediting rules of the American Bar Association require that law students complete two "rigorous writing experience[s]," a term the accrediting arm has never defined.

When pressed, law schools offer excuses: Our professors don't want to teach writing. Teaching writing effectively is costly. Or time is limited, and students come for law, not for a refresher course in what they should have mastered years before. Teaching writing is the responsibility of colleges (or high schools or elementary schools). Students will develop their writing skills on the job.

These excuses are inadequate. The Navy scarcely tolerates a sailor's inability to swim because he should have learned it elsewhere, nor does it assume that a sailor will discover how to float when her ship is sunk. Worse, these excuses keep students from learning that most lawyers do not know how to write effectively and that good writing really does matter. The message to students is clear: Your writing is good enough for whatever tasks come your way once you leave school's sanctuary.

In practice, the problem worsens. Most firms offer only a few hours' training to their recruits, even though the best recruits are mediocre writers. Some large firms invest fair sums of money and large amounts of time on substantive training—a workshop on advocacy, a seminar in the fine points of securities trading, the art of taking depositions—a measure of what they think is valuable. Many bosses have been poorly trained themselves and cannot improve upon the inept writing of their juniors, so the prose deteriorates further. The occasional partner outraged at some bit of mangled syntax might circulate a memo on "the five rules of good writing," as if these idiosyncratic rules (themselves quite likely to be wrong) solve the problem. Solo practitioners and lawyers at small firms receive little guidance; what they see is the often marginal, convoluted prose of their adversaries and judges.

The lawyer's writing problem is compounded by the different forms that poor writing can assume. When lawyers discuss bad—and good—writing, they mean diverse things. Solving minor difficulties, they may believe they have overcome all. At a prosperous West Coast law firm we visited, a fourth-year associate bragged about how well she and some of her colleagues wrote. Of her boss, she said, "He knows how to write; he knows the difference betweenthat and which."

The "that-which" distinction is an occasional issue in English usage, but this knowledge is scarcely the height of the writer's skill. The writer must contend with scores of other usage problems, and usage itself is only one of many elements a skilled writer must master. Yet all too many lawyers believe that good writing means only mastering a few simple rules.

To prove that they are good writers, or at least that they care about well-ordered sentences, many lawyers, including the West Coast associate, point to a tattered copy of Strunk and White sitting on the bookshelf. The Elements of Style, that venerable volume on good usage, was published in 1918 and rediscovered in 1957 when one of William Strunk's students, E. B. White, reminisced about the book in the New Yorker. For many lawyers, it epitomizes the craft of writing. The U.S. Court of Appeals for the Eleventh Circuit in Atlanta gives a copy to every lawyer admitted to practice. Thomas W. Evans, a senior partner in a large New York firm, told us: "Over the years the only aid that I have found particularly useful in writing is to reread occasionally The Elements of Style. Immediately after these readings, my sentences seem to become shorter and clearer. In time, I drift back into bad habits until I am led to pick up that little book again."

The Elements of Style is a good "little book," as Strunk himself called it in 1919 when it was first circulated on the Cornell campus. As a brief summary of some useful rules, it does belong on a writer's shelf. But The Elements of Style is also unsystematic, chaotic, limited, and sometimes unhelpful. Here, for example, is how Strunk and White explain that and which: "That is the defining, or restrictive pronoun, which the nondefining, or nonrestrictive." Accurate, surely, but how does it help?

Lawyers' misplaced reliance on Strunk and White is emblematic of a limited perspective on writing. Good writing is more than adherence to elementary rules of usage. The good legal writer must consider these subjects, among others:

• Vocabulary—the choice of appropriate words
• Organization—the effective arrangement of thought
• Topic flow—the appropriate articulation of concepts
• Transitions—the connections between ideas
• Structure—the proper elements of a document
• Audience—the nature of the expected readership
• Tone—the manner or spirit of addressing readers
• Style—the types of sentences and the cadence of prose
• Clarity—the fit between idea and expression
• Accuracy—the fit between expression and reality
• Timing—when to write and when, and how often, to edit

In this book we write for lawyers who wish to improve their writing—for practitioners who seek to refine their skills and for students who hope to develop them. We look at writing from many perspectives to offer concrete solutions to difficulties of which readers may be unaware. We do not suppose that those who absorb the contents of this book will match Brandeis, Cardozo, or Holmes as stylists. But we do believe that diligent readers will become better writers and that they will be equipped with the means of improving further on their own.

Three more observations about the book's aims:

1. 1. Because writing is an art and a skill, a process and a business, an end in itself and a means to other ends, we do not confine our discussion to rules of usage. We propose that readers consider context and process as well. In Chapter 2, we discuss the causes of poor writing and the historical critique of legal writing; in Chapters 3 through 7, the way writers write—individually and in the office; in Chapters 8 through 11, the rules and techniques for polishing prose; and in Chapter 12, how to make your writing memorable.
2. 2. Because every lawyer composes for many purposes and different audiences, our advice should not be taken to apply equally to every kind of document and under every set of circumstances. We know that lawyers are busy and that they do not have the novelist's luxury of time. The lawyer who must prepare overnight a response to a motion for a preliminary injunction obviously cannot put the draft aside for days before returning to reconsider it. Rules of grammar and usage apply to every brief, memorandum, and pleading, but the process by which those papers are composed will depend on the time and resources available.
3. 3. With minor exceptions, we do not consider the art of drafting legislation, contracts, or other legal instruments in "plain English," understandable to the lay public. Our premise is that lawyers' thoughts and manner of expression are so disordered that even other lawyers cannot understand them. As lawyers learn to write well, inevitably the public will learn to understand them also. But that is not the starting point. Lawyers must first learn to talk to each other.

Mindful that we have chided scores of lawyers by using their writing to illustrate problems and solutions, we have sought assiduously to eliminate our own mistakes. But writing about writing errors is always dangerous because the critics invariably commit their own. Sally Powell, the book review editor of Business Week for many years, never let her writers attack typographical errors in the books they were reviewing, because as soon as they did, she said, similar mistakes would creep into the magazine.

On occasion, we confess, we have led with our chins. In our survey, for example, we asked the question: "Do you have other thoughts on legal writing that you would like to share with us?" David L. Shapiro, a professor at Harvard Law School, chided: "Only that the 'sharing of thoughts' should be left to the headmasters of progressive secondary schools."

We hasten to acknowledge that mistakes are sometimes just mistakes and that not every wooden phrase or fuzzy thought means that the writer is thoughtless or poorly trained. We recognize that mistakes inevitably remain in this book too. We hope that by adhering to the principles we propound, we and you can learn to become more acute at spotting and eliminating the mistakes that slip through.