The bad writing “disease” is a common affliction among lawyers and will set you back in your career. A few experts tell us how it can be easily remedied...
“When law students open their first casebook, they will read cases that are, as a rule, terribly written, full of legalese,” Finnegan's writer-in-residence, Ed Good, reflects. “I call it 'powdered wig prose', like an old English barrister. Students think 'that's how you do it!' Then the disease passes to the next generation.”
Do you suffer from this “disease” but don't even realize it? You might think you write sophisticated prose that 'sounds' lawyerly. You might consciously cultivate your own distinctive style. Perhaps you believe that subjective literary taste comes into play? All these things might help your novel win a Pulitzer Prize, but they're unlikely to help you shine as a lawyer. Schiff Hardin's legal writing coach, Julie Schrager, is adamant: “Legal writing is a skill anyone can master – it's a science, not an art. Young lawyers often complain that partners' preferences are idiosyncratic. Not true! In years of teaching, I've heard partners express more unanimity than disagreement about what they like.”
Julie Schrager's three top tips are:
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Be sensitive to your audience. “Are you writing to a state court judge who has hundreds of cases and can give you just one minute of their time, or a very busy client who may read your email on her phone?”
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Organize everything and make that organization transparent. “Everything needs a beginning, middle and end. And if you make that organization clear on the first page, your reader is not as intimidated about reading the next 20 pages – what I call my 'blood pressure-reducing tip'.”
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Clarity and precision. “Everyone should be able to understand what you write after reading it once. We are lawyers, not physicists. To help your readers, write in short sentences and draft short paragraphs. Some court documents have a word count, but none limit the number of sentences or paragraphs. Neurological data show that readers switch off if there are more than 25 words in a sentence. And don't be afraid to use specific legal words when you need to, but do not use legalese.”
Ed Good also stresses the importance of brief, clear sentences: “Many legal writers rely on traditional legalese – old phrases like 'pursuant to', 'prior to', 'subsequent to', 'herein', 'hereinbefore'. All that jargon... After all, 'prior to' means 'before'; 'subsequent to', 'after.'” Using horribly outdated vocab often goes hand in hand with the common mistake of “writing sentences that seemingly have no end. Get rid of legalese.” Julie Schrager adds that “even partners can get bogged down in the details of their case and lose perspective. When I read briefs as an outsider, I ask, 'are you communicating in an effective way'?” Follow the “'one-read rule'. Any sentence that needs reading twice isn't good enough.”
If your school or law firm offers you a writing coach, take advantage of the opportunity to have your writing critiqued by a trained, non-judgmental eye. Both Schiff Hardin and Finnegan run structured programs for their summers and associates, who can also approach their writing expert for advice whenever they need it. “I run workshops for first through seventh years,” explains Julie Schrager. “For example, I try to share best practices for persuasive writing, and teach associates how to revise and edit their own work.”
Confidentiality is paramount, so lawyers can have their writing assessed without fear of it being fed into their performance review. Ed Good emphasizes that “my opinion of summer associates' writing has nothing to do with them getting a full-time position. They should send me their worst piece! I simply do not share my opinion of someone else's writing.”
Finally, good legal writing is “definitely a teachable skill,” according to Ed Good. Like anything else, practice makes perfect. Julie Schrager reiterates: “You should write a lot, to figure out what works for you and what doesn't.”
Here are some bonus tips:
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“It's really important to explain things.” (Julie Schrager)
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“To be a good lawyer, people often don't realize that first and foremost you should be a good storyteller – you need to teach the judge about a case, for example.” (Ed Good)
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Good legal writing is “organized, transparent to the reader and can be easily understood.” (Julie Schrager)
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“Write in active verbs.” (Ed Good)