The Lawyer's Guide to Writing Well. Tom Goldstein

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 programs, usually a yearlong course in writing and research. These programs and courses were spurred by the “MacCrate Report” of the American Bar Association in 1992.¹ 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 back seat 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.”² 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.

       PART I WHY LAWYERS WRITE POORLY

       1 DOES BAD WRITINGREALLY 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.

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

      FLOYD ABRAMS

      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.¹ 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.

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

      LOUIS S. AUCHINCLOSS

      “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.

       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

      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