Wednesday, April 9, 2014
Southern California lawyer William Domnarski raises some provocative points about legal writing in his new book, Swimming in Deep Water: Lawyers, Judges, and Our Troubled Legal Profession, published by the ABA. In an essay titled Lawyers Writing, Domnarski argues that legal writing is not a separate genre, but that good legal writing is just good writing, a point he says law schools don’t acknowledge. But legal writing professors may be closer to his view than he realizes. For years, I have quoted to my students Justice Scalia’s statement (which Domnarski references) that legal writing doesn’t exist as a separate genre. I point out that good legal writing has much in common with any good expository writing. But I also alert the students that they need to be attuned to legal terminology. No, I don’t mean they should start using legalese like aforesaid, which Domnarski rightly condemns. Instead I mean that students must understand and correctly use terms like battery and strict scrutiny.
I find more to disagree with in another essay, Legal Writing Instruction Misunderstood. There Domnarski argues that legal writing professors should teach grammar and usage, not legal analysis: “Language skills taught in legal writing classes have nothing to do with legal reasoning or knowledge of the law.” On that point Domnarski is wrong. Our AALS section is named “The AALS Section on Legal Writing, Reasoning, and Research” because experts in the field recognize the connection between legal reasoning and legal writing. Domnarski himself seems to acknowledge this when he writes in the same essay, “What the lawyer writes is determined by the facts and the law, both of which the lawyer has almost no control over. Presenting whatever best commends an argument is the challenge for the lawyer in his writing.” In short, legal analysis is an integral part of legal writing.
Domnarski also bluntly advises, “Burn anything that Bryan Garner has written,” on the ground that Garner “perpetuates the idea that legal writing is somehow special.” I don’t think that’s Garner’s purpose, and I recognize his important contributions to the field. His Redbook on legal style is an invaluable reference on, among other things, English usage—which Domnarski agrees lawyers need to brush up on.