Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, July 9, 2019

Can Learning to Write Well Lead to More Ethical Behavior?

Diogenese

Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.

In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:

  • Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
  • Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
  • Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.

In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.

Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.

As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."

Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.

It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.

Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.

(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)

 

 

https://lawprofessors.typepad.com/appellate_advocacy/2019/07/can-learning-to-write-well-lead-to-more-ethical-behavior.html

Appellate Advocacy, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink

Comments

Thanks for sharing this! I appreciate your arguing that how lawyers communicate can make ethical differences.

The best article I know of on profound issues in legal ethics is this:

"Devil’s Advocates: On the Ethics of Unjust Legal Advocacy"

Michael Huemer, Philosophy, University of Colorado

https://philpapers.org/rec/HUEDAO

Posted by: Nathan Nobis | Jul 15, 2019 6:46:46 AM

Also, the link to the original article seems to be incorrect. Here it is:

https://www.chronicle.com/article/Why-Writing-Better-Will-Make/246406

Posted by: Nathan Nobis | Jul 15, 2019 7:43:54 AM

Of course! Thank you for writing the initial article. I found it very thought-provoking.
If I can figure out how to correct the hyperlink I will. In the meantime, I hope everyone follows your link in the comments.

Posted by: Lance Caughfield | Jul 16, 2019 9:17:42 AM

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