The Lawyer's Guide to Writing Well. Tom Goldstein

      Some critics say that lawyers' abstruse writing reflects their abstract way of thinking about the world. Steven Stark concluded that “poor writing is as much a consequence of the way lawyers look at the world as is their ability to read a contract and find consideration.”²³ This bent toward abstraction, Stark argued, prevents lawyers from writing clear stories that others can follow.

       In the heels of the higgling lawyers, Bob, Too many slippery if and buts and howevers Too much hereinbefore provided whereas, Too many doors to go in and out of.

      CARL SANDBURG

      Law professor Richard Hyland rebutted Stark's notion in a lengthy defense of legal writing.²⁴ Storytelling, Hyland observed, is one of many levels of discourse, and it is not the level most deserving of a lawyer's time. Instead, lawyers must focus on the higher conceptual plane. Rather than blame lawyers for writing what the public cannot understand, Hyland suggested that the public recognize that the conceptual complexity of legal writing is necessarily beyond general understanding.

      But even at the conceptual level, lawyers fail. Lawrence Grauman Jr., a San Francisco—area writer and editor with a special interest in law, expressed it best:

      Most lawyers appear to regard language and prose as merely an inconvenient vehicle (what they would term “style”) for the accommodation of ideas or argument (what they think of as “content”), rather than as the very fiber of, and inseparable from, thought (or at least distinctive perception) itself. Few lawyers would wear a second-hand suit, but most are comfortable wearing well-worn or mass-produced language. And frequently the same lawyers who select their clothes to make a visual impression use language merely to make a verbal impression or to inflate their self-importance.

       Every time a lawyer writes something, he is not writing for posterity, he is writing so that endless others of his craft can make a living out of trying to figure out what he said.

      WILL ROGERS

      Hyland's concern with whether the public understands legal writing diverts attention from the more vexing problem: even other lawyers cannot fathom what their colleagues are writing.

       Pedagogical

      The simplest explanation of why lawyers write badly is that they were never taught how to write well—not in high school, not in college, and not in law school.

      Participants in a symposium in the Yale Alumni Magazine in 1976 expressed a familiar complaint of the 1970s and 1980s: “Anyone who reads student writing today knows that students can't write.”²⁵ The students of 1976 who could not write are today's partners who, in turn, are responsible for supervising the writing of new associates. At that symposium, A. Bartlett Giamatti, who later became president of Yale and then commissioner of baseball, explained how cultural longings denied students their ability to express themselves:

      Today's college students—the former grammar and high school students of the late 1960's and early ‘70’s—have lost touch with the language….

      …They have come out of the sentimental ‘60’s…out of a primary and secondary world where “personal development” was said to be worth more than achievement, where “creativity” was the highest goal and was often completely divorced from one of its essential components: discipline….

      What has happened? I believe that of all the institutions attacked in the past dozen years—governmental, legal and educational—the one that suffered most was the institution of language itself…. This institution—language—was perceived as being repressive. It was thought to be the agent of all other repressive codes—legal, political, and cultural. Language was the barrier that blocked—blocked access to pure feeling, blocked true communal experience of the kind that flowered at Woodstock, blocked the restoration of Eden.²⁶

      Many schools are now focusing on language skills courses, but their rigor is open to question.

      Still, too much can be made of what happened in the late 1960s. Even a nodding acquaintance with the complaints of educators over the years shows that the quality of too much student writing, in general, and law student writing, in particular, has always been problematical. In 1953, speaking of past generations, Jacques Barzun, the eminent critic and scholar, asked, “How do people write who are not professionals or accomplished amateurs?” His answer: “Badly, at all times.”²⁷

      The time traveler can easily confirm Barzun's observation. In the seventeenth century, leading British intellectuals clamored for admission to the new Royal Society, dedicated to scientific discovery and invention. In their history of the period, Jacob Bronowski and Bruce Mazlish have said: “More important than any formal symbolism, however, scientific work, to be understood, needs a clear expression in words. This the Royal Society stressed from the outset…. The Fellows of the Royal Society were exhorted to report their findings ‘without amplification, digressions, and swellings of style.’” When the poet John Dryden was admitted to the Royal Society, he was promptly put to work simplifying the scientists' prose.²⁸

      Each generation of critics has despaired anew over the ostensible decline of English and has blamed the deterioration on the failures of an earlier generation to teach it well. To spare law faculty from having to give instruction in grammar and composition, the University of Chicago Law School created the first legal writing course in the late 1930s;²⁹ many other law schools adopted the practice in the 1940s. But even after decades of complaints and reforms, most legal writing courses devote little attention to reading good writing or to criticizing bad writing. During three years of law school, the required readings—appellate opinions—are selected for their substantive meaning, not for their quality of expression. As it happens, many judicial opinions are dreadfully composed, in no small part because the profession has no mechanism for criticizing the prose style of opinions. Writing is learned by imitation, and yet generation after generation of law students are given poor models to emulate. Consider, for example, the following paragraph from Pennoyer v. Neff, 95 U.S. 714 (1877), a basic case in civil procedure read by all first-year law students, often in the first week of school:

      The force and effect of judgments rendered against non-residents without personal service of process upon them, or their voluntary appearance, have been the subject of frequent consideration in the courts of the United States and of the several States, as attempts have been made to enforce such judgments in States other than those in which they were rendered, under the provision of the Constitution requiring that “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State,” and the Act of Congress providing for the mode of authenticating such Acts, records and proceedings, and declaring that, when thus authenticated, “They shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the States from which they are or shall be taken.” In the earlier case, it was supposed that the Act gave to all judgments the same effect in other States which they had by law in the State where rendered. But this view was afterwards qualified so as to make the Act applicable only when the court rendering the judgment had jurisdiction of the parties and of the subject-matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the right of the State itself to exercise authority over the person or the subject-matter….

      Robert Leflar, a former justice of the Arkansas Supreme Court, has observed that the opaqueness of judicial writing is rarely challenged or criticized. The judge “may receive no real criticism of his writing for months or years. Unlike ordinary editors or publishers, the state reporters and the West Publishing Company never refuse to print his opinions, nor do they even edit them. His writing is published whether good or not. Almost no one except law review editors and losing litigants criticize his work, and even these critics usually dwell only on the correctness of his legal analyses rather than on the quality of his presentation.”³⁰

      One style held out as a model is the law review essay. It should not be. In his characteristically blunt fashion, Fred Rodell blamed legal style on what lawyers learn as law review editors, when they are “brainwashed”