August 19, 2008

posted by Daniel J. Solove

At the risk of bragging, I am generally known as an excellent legal writer; for instance, i wrote a student note accepted for publication as a first-year. Any person who asks me, I tell them: buy Henry Weihofen's book "Legal Writing Style." I can vouch for the 2nd edition. I have looked at and read alot of books on legal writing and none surpasses Weifhofen's book. It will break down all your bad habits as normal writer and teach you the right habits as a legal writer. It is practical, pragmatic, and utterly useful.

I had to rebuy a copy recently and found that it was out of print. But I got it gently used for a good deal on amazon. I would strongly suggest you hunt this book down.

The only other big point is that I wish someone would tell law students, is originality is a bad thing. Say you have to write a release clause in a settlement and you don't have one handy. Don't be ashamed to go to a more senior lawyer and ask for a model, and then to rip it off shamelessly. Find a contract that has been "battle-tested" and change as little as necessary. You are infinitly more likely to "catch everything" if you do that. That doesn't mean you should just copy it. Even a contract that has been used for 70 years and been attacked from every angle, might still contain a mistake or two. So use it skeptically, but by all means use it.

On a similar note, if a contract provision is demanded by a statute or regulation, just copy the law/regulation at issue. It ain't very creative, but it is the best practice as a lawyer.

I disagree pretty strongly. The only writing courses I would even remotely consider prior to law school would be basic composition and grammar. Any other writing courses will necessitate more "re-education" once you hit legal writing as a 1L.

I've yet to meet a single faculty member teaching legal writing who didn't think *they* were Bryan Garner. Faculty generally all try to teach their vision of legal writing, which is usually based on the partners from their limited firm experience. In the end, you'll have to re-learn legal writing again anyway when you meet god's gift to legal writing at your firm--the partner you work for.

And tenured faculty members? I'd advise you to make law review and read article submissions and cite check. After retching 80% of the time, you'll eventually read a well-written article and it will be like a breath of fresh air.

The greatest writing skill you can have to take into law school is to be a chameleon--to be able to adapt your style and organization to whatever a particular faculty member wants. What do they want? Usually for you to parrot their own style.

So instead of wasting time on writing classes that won't help your grades or your career, here's what you should do: ghost write novels for celebrities. Seriously, you'll learn the critical skills for legal writing: dealing with a prima donna who wants everything their way, believes they are the great writer, while you do all the work making your writing sound like theirs!

Not that I'm bitter or anything.

Dave, you make some good points, but I think the post is about developing basic skills rather than trying for a unique style.

If you can't write clearly or put complicated ideas into words, none of the self-proclaimed Bryan Garners out there will find you very useful, regardless of their idiosyncrasies.

Aaron, thanks for the book recommendation. I don't think originality is always a bad thing in legal writing, but as you point out, it's not always a good thing.

Dave, my experience working for demanding partners, talking to other law professors (both legal writing and non), and reading and commenting on student papers myself is that there is a very broad consistency of opinion on what good legal writing is. Sure, there's going to be some idiosyncracies and some profs/partners who don't even realize they're idiosyncratic, but if your entire experience has been with the latter sort of people, I'd say you've had an extremely atypical run of bad luck.

This recommendation is spot on! Far too many lawyers leave law school without the ability to put a proper sentence together. I saw hundreds of poorly written briefs during the nine or so years that I clerked in trial and appellate courts. And now that I am employed to edit law firm marketing materials (articles, client alerts, etc.), I can tell you that they can't write for a non-legal audience either. How difficult is it to follow basic usage rules, use active voice and reduce clutter (like those ubiquitous "of" clauses)? Darn near impossible for most, it seems.

Let me add that Bryan Garner (who has twice been mentioned) has some fantastic books on legal writing. He has his idiosyncrasies, like putting citations in footnotes rather than in-line even on court submissions, and gender-neutral writing, but he has tons of excellent advice.

His new book with Justice Scalia is a must-read.

In general, I have heard classmates grumble about grades and said something along the lines of, "We all wrote the same thing. Grades came down to writing style."

And that is likely true. In my experience, at least, a well-written examination will get better grades than a poorly written one that contains the same information for a couple of reasons:

1. A well-written examination makes it easier for the professor to realize you're hitting the points they want you to.

2. A well-written examination is a breath of fresh air to a professor slogging through seventy-something exams at the end of a semester.

3. Most classes have mandatory curves, so professors have to discriminate based on something.

Even though exams cannot be masterpieces, basic organization, style, grammar, and transitions can make an exam stand out from the pack.