November 15, 2012
Law is not creative writing
When reviewing 1L's first drafts of practice exams, there is one problem that always comes up: writing in law is not creative writing. 1L's get confused by this statement, especially when their professors tell them that creativity is an important part of lawyering. However, the creativity that law professors are referring to, and the creativity that law students try to demonstrate on exams, are two different things. This is a particular challenge for students who majored in English in undergrad, and for law students who previously worked in creative fields, such as PR or marketing. Students need to understand that the purpose of writing for a legal audience is different from the purpose of writing in those fields. Lawyers need to be understood. A creatively written contract, that uses terms of art in new or novel ways, is likely to be misunderstood by the parties, and wind up in court. This is NOT what a lawyer wants when they write a contract. Therefore, lawyers use terms of art carefully; in fact, lawyers use words carefully. The goal of writing for a legal audience is not to show them how many 25 cent SAT words you know; the goal is to be understood.
Here are some other basic rules of writing for a legal audience that 1L's frequently misunderstand:
1) Using the same words throughout an exam is smart. Don't try to change your vocabulary so you don't overuse a word. That rule is true for creative writing, but it undermines the coherence of your essay when writing in law.
2) Keep your sentences short. Long sentences frequently contain too many ideas that need to be discussed separately.
3) Use linking words, like because. Although your sentences should be short, you need to be sure that you make explicit connections between law and fact. You are not a fiction writer; you do not want to make the reader make inferences. Spell it out for them.
4) A paragraph should focus on one idea. If you have a new idea, start a new paragraph. If you reread your work, and find that you have multiple ideas in one paragraph, chances are you are not discussing any one idea completely.
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