Thursday, August 23, 2012

Tips for clear legal writing

Here's a great post on clear writing tips from the Lawyerist blog that you may want to pass on to your students.  It affirms what I've always believed; that bad writing is almost always the result of bad thinking.  Thus, the writing process really boils down to refining your ideas by way of multiple drafts in which you are trying to work through on paper exactly what it is you want to say.   It's hard work - sometimes grueling - for which there aren't any shortcuts.

On the other hand, students struggling with legal writing for the first time should understand that many good writers consult a mental checklist to help guide them towards a good final product.  Chief among the points on that checklist should be a constant reminder to ask oneself "will the reader understand what I'm saying here?"  I refer to this in class as being "other-centered" as a writer; don't focus on whether you,  the author, understands your writing but instead focus on whether the "other" - your reader - will.

This post from the Lawyerist characterizes this as the need to empathize with one's audience. And here's a list of tips they say will help you do just that:

How Can Legal Writers Empathize With Their Readers?

If focusing on and empathizing with the needs of readers results in clear thinking and writing, in practice how can lawyers achieve these goals?

First as a commercial litigator, and now as corporate counsel, I’ve tried to focus on and empathize with my readers’ needs by:

  1. Writing a brief or corporate document like a newspaper article, with a good lead or introduction, a conversational tone, and short, uncomplicated words and sentences. In fact, when I receive feedback that my writing is “conversational,” “flows well,” or “makes sense,” I know I’ve succeeded in empathizing with my reader’s needs.
  2. Reading documents out loud to determine whether the sentences flow smoothly, or if there are ways to cut legalese, verbiage, or my darlings. If I can’t read a document to myself or to another person without repeatedly stumbling over my prose, I know that my readers will have the same difficulty, and that it’s time to revise.
  3. Being honest with myself about whether non-lawyers could understand the points I’m making without knowing anything else about the topic. If I conclude that a non-lawyer can digest my presentation without additional explanation or background, then I know I’m serving my reader’s needs, even if the reader is another lawyer.
  4. Letting my thoughts distill overnight. I’m amazed at how a good night’s rest clarifies my thoughts about how to make a document read more smoothly. It’s almost as if my brain defragments overnight, allowing me to revise sentences that the night before seemed impenetrably abstruse.
  5. Not waiting until 10:00 p.m. the night before a document is due to write a first draft. I know that some lawyers think they do better work late at night. But it’s impossible to empathize with your reader’s needs when you’re rushed and tired. When your body is stressed, you can’t think clearly, much less write clearly. So becoming reader-centric requires adequate planning so that your failure to plan doesn’t become your reader’s emergency.

Ernest Hemingway once claimed in an interview that he rewrote the ending of Farewell to Arms 39 times before he was satisfied with it. Asked what in particular had stumped him, Hemingway candidly admitted, “Getting the words right.” It’s plain, then, that even writing giants sometimes struggle to think clearly.

This should give hope to the struggling legal writer. If you struggle with muddy thinking, stop fretting about it. Instead, start focusing on how to empathize with your readers’ needs. If you do that, your readers will start noticing your improved writing. And, before you know it, your readers will begin to appreciate your efforts.


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