Wednesday, April 9, 2014

A new book raises provocative points about legal writing

Deep WaterSouthern 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.


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On the Garner point: I assign Garner's The Winning Brief in my persuasive writing and advocacy class, partly because he relies on such a wide variety of authorities on writing. A quick look through the tips and quotes at the start of each chapter, and sure, you'll see quotes from law-focused sources, but you'll also see generalist sources like the Chicago Manual or Struck & White, as well as specialty sources from other fields like business writing, and even fiction writers like John Irving.

The not-so-provocative key, as I see it, is that (1) there are general writing norms and skills, which our students should learn, (2) there are specific legal writing norms and skills, which our students must learn, and (3) there are times when the latter trumps the former, which our students must learn.

Journalism and fiction provide good examples. A student may well be a great writer, but I would mark her down for writing an interesting lede that teases a surprising revelation later in the story. That might make a great piece in the New York Times Sunday Magazine, but legal writing requires more introductory structure and previewing. The same comparison can be made in fiction writing. If A Prayer for Owen Meany were an appellate brief, I'd want Irving to tell the Court what happens to Meany and the narrator within the first 90 seconds of the book. Fortunately, Irving is not a legal writer.

Posted by: David Ziff | Apr 10, 2014 9:36:16 AM

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