Saturday, August 18, 2012

"What is ‘Good Legal Writing’ and Why Does it Matter?"

By professor Mark Osbeck (Michigan) and available at 4 Drexel L. Rev. 417 (2012) and SSRN here. From the abstract:

Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing. The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills. Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing. As a result, legal writers are left without a conceptual framework to ground the individual rules and suggestions. This article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal document to be well-written. It starts by examining a foundational conceptual issue, which is what legal writers mean when they say that a legal document is well-written. It argues that legal readers judge a document to be well-written if the writing helps them make the decisions they need to make in the course of their professional duties. The article then provides an analysis of the fundamental qualities that enable legal writing to do this, concluding that there are three such qualities: clarity, conciseness, and the ability to appropriately engage the reader. The article explains why each of these qualities is essential to good legal writing, and it examines the tools good writers use to make their writing clear, concise, and engaging. Lastly, the article examines what it is that distinguishes the very best writing in the field, arguing that great legal writing is not just writing that is especially clear, concise, and engaging, but is instead writing characterized by a separate quality, elegance, that is aesthetic in nature. The article then goes on to explore what it is that makes such writing elegant, and whether it is desirable for legal writers to strive for elegance in their own writing. The article concludes by briefly considering the pedagogical implications of the analysis discussed in the previous sections.

(jbl).

http://lawprofessors.typepad.com/legal_skills/2012/08/what-is-good-legal-writing-and-why-does-it-matter.html

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Comments

Lawyers tend to be verbal, and they often confuse their natural verbal tendencies with good writing ability. Both before and after law school, most applicants and lawyers think they are good writers, so teaching them to be better writers is difficult. First, you have to convince them that they don't already write well. As they practice law longer, their arrogance grows, making them even less likely to work diligently to develop solid writing skills.

I agree that law schools could do much more to include the practical side of practicing law in their curricula. Most law schools offer a research-and-writing course as well as a course that requires writing a longer paper, but neither includes specific writing instruction.

Frankly, there's probably not enough time in law school to do much in terms of pure writing instruction. What makes more sense is to require specific undergraduate coursework before allowing application to law school. A few students understand that need and take appropriate history, political science, and writing courses before applying to law school. Others come from totally unrelated disciplines, like engineering, and three years of law school is not enough to teach them the law, the practical side, and writing skills.

Thanks for raising some interesting issues!

Posted by: doug_eike | Aug 19, 2012 11:13:16 AM

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