Tuesday, February 23, 2010

Scholarship alert: "Lawyer as Professional Writer."

By Brandon J. Harrison, esq. and available in 62 Ark. L. Rev. 725 (2009).  From the introduction:

Lawyers are professional writers. If you practice law in Arkansas or anywhere else in the world, then you are by any practical definition a professional writer. Accept it or not, it's true. Arkansas Governor Mike Beebe told a packed room during the most recent Arkansas Bar Association's annual meeting that lawyers are professional communicators. Governor Beebe's remarks were spoken to encourage--no, admonish is the better word--his audience to stand up for Arkansas and argue for the merits of what our State has accomplished, and what it will accomplish in the future. I nodded in agreement because I liked the point the Governor made and because his theme echoed an idea that has percolated in my mind for a few years now. Lawyers are professional communicators. We should take this fact seriously. Today, I concentrate on the written word.

More than two decades ago, in the Harvard Law Review, Steven Stark voiced his concern in plain, if not caustic, terms:

If you don't need a weatherman to know which way the wind blows, you don't need a literary critic to know how badly most legal prose is written. You need only turn to any page of most legal briefs, judicial opinions, or law review articles to find convoluted sentences, tortuous phrasing, and boring passages filled with passive verbs.

I disagree with some points Stark made in his article, Why Lawyers Can't Write. For example, I don't believe that lawyers, as a professional class, intentionally use “doublespeak” and “jargon” to “convince the world of [our] occupational importance, which leads to payment for services.”  Nor do I believe that “[e]very time lawyers confound their clients with a case citation, a ‘heretofore,’ or an ‘in the instant case,’ they are letting everyone know that they possess something the non-legal world does not.”  Yet, Stark is by no means alone in his general criticism. And his main point, which is that lawyers should write better, hit home.
I am the scholarship dude.


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