“If any bill, answers, replication, or rejoinder, shall be found of an immoderate length, both the party and the counsel under whose hand it passeth shall be fined.”
— Sir Francis Bacon
Legal Writing is Not a Course. Well, OK, it is a course. But it’s not just a course. Don’t make the mistake of thinking that it is something separate and apart from your substantive courses—or worse, that it is less important than them. Effective legal writing is effective legal practice—both because good legal writing is good legal analysis, and because most of what you do as a lawyer will involve communicating clearly to others, either in written or oral form and regardless of whether you’re communicating with an adversary, a client, or someone on the other side of a corporate transaction. Moreover, mastering good legal writing is the best “strategy” there is for mastering your substantive exams: a great legal exam, in my view, is just a great legal memo written under unusual time pressure. So treat legal writing as one of your most important courses, whether or not it’s pass/fail, and do your best to internalize the form of the legal memo so that you can use it on your exams.
[P]ractice writing as much as you can. This advice is best heeded long before you go to law school. Take writing classes in college. Or take a non-fiction writing class outside of college.... Or, if you can't take a course, get books about how to improve your writing. And practice writing on your own. Basically, write, write, write!
Writing is one of the most crucial skills in law school, and it is the one that I find many students could greatly improve.... Many of the problems I see on exams and in student papers stem from general writing issues—inability to write clearly, poor organization, badly articulated concepts, and so on. You can never get enough training in writing. So work on improving this skill, and you'll likely improve your success in law school.
Hat tip to Brian Hollar at Thinking on the Margin for all the above.
If you bill by the hour, then the most important writing you do for your own career are your time entries. A time entry can inform the client about what you’re doing and how it’s helping to accomplish your client’s goal. Or not. For an example of the not, read this excellent post by Donna Bader on An Appeal to Reason. Donna’s post is about a lawyer’s fee statement submitted for judicial approval. The court was so unimpressed that it cut the bill by over 90%, from over $250,000 to $21,300. To see some of the things the lawyer did wrong, read Donna’s post.
Donna concludes with this advice for submitting motions for court approval of attorney fees: “Pay attention to providing adequate details of your services, and avoid duplication of efforts when more than one attorney is performing services. But, above all else, protect your credibility with the court.” I would add: Do the same thing when submitting a bill for your client’s approval. Write time entries that protect and enhance your credibility with your client.
Yesterday’s installment of Garner’s Usage Tip of the Day carried this quotation. As I read it, I couldn’t help but think of people whose “primary business” is practicing law:
The writing of literate Americans whose primary business is not writing but something else is pretty bad. It is muddy, backward, convoluted and self-strangled; it is only too obviously the product of a task approached unwillingly and accomplished without satisfaction or zeal. Except for the professionals among us, we Americans are hell on the English language.
—Donald J. Lloyd, “Our National Mania for Correctness,” in A Linguistics Reader 57, 57-58 (Graham Wilson ed., 1967).
The good folks at Legal Writing Prof Blog have collected a list of their favorite blogs. And one of the contributors to LWPB, Coleen Barger, has her own list of legal-writing blogs and web sites at Barger on Legal Writing, which itself is a fine resource.
In this item, Australian High Court Judge Michael Kirby shares the secret of his success with some university students:
“I know the real reason you love me,” he said, before pausing for effect.
“Headings. Headings. Sub-headings. Sub-sub-headings. Indent dot points. That’s the real reason.”
The High Court judge had told the enthralled audience he was “in the business of communication of ideas” ....
.... “You don’t communicate ideas if you write High Court judgments in the way that the High Court justices did in my time. Just think of my time in law school. I had to sit there reading page after page without a single paragraph.
“So that's what you get from me. I’m the sort of CCH of legal publishing. I believe in making it easy. You can skip all the stuff you don’t want to read and go straight to the point where the sub-sub-sub heading tells you what the gist of the matter is.”
Hat tip to Slaw.
While athletes of all shapes, sizes, and colors strive to go higher, faster, and farther in the city that gave its name to Peking Duck (before they changed the name to Beijing), the English scholars at San Jose State University quietly announced this year’s winners of the Bulwer-Lytton Fiction Contest. The rules are simple: write the opening sentence of the worst novel you can imagine. The contest is named after Edward George Bulwer-Lytton, who, in a moment of delusion, once began a novel with the words, “It was a dark and stormy night,” gazed at those words on the page, and thought to himself, “Damn, I’m good!”
Special congratulations to Jay Dardenne, Louisiana’s secretary of state, who won dishonorable mentions for two entries.
Last year I wrote a post about a promise literally written in blood. The synopsis:
Mr. Kim invested $140,000 in companies run by Mr. Son. When the companies went belly-up, Messrs. Kim and Son met over drinks to discuss the matter. Mr. Son, apparently feeling bad about Mr. Kim’s loss, pricked his finger with a safety pin and wrote—in blood (and in Korean)—“Sir, forgive me. Because of my deeds, you have suffered financially. I will repay you to the best of my ability.” Unfortunately for Mr. Kim, the promise was not enforceable (according to the Orange County Superior Court), because there was no consideration for the promise.
The case is now on appeal, and Richard Radcliffe, proprietor of Law Religion Culture Review, has posted the verbatim text of the appellant’s brief—typewritten in black text. The gist of the argument is that Mr. Kim’s forbearance in not suing Mr. Son earlier was sufficient consideration to support Mr. Son’s promise.
The lesson remains the same: writing a promise in blood doesn’t make the promise enforceable. So forget the dramatics; just use a pen.
The ABA Journal quotes Justice Scalia’s remarks yesterday on accepting the Scribes lifetime-achievement award:
I do not believe that legal writing exists. That is to say, I do not believe it exists as a separate genre of writing. Rather, I think legal writing belongs to that large, undifferentiated, unglamorous category of writing known as nonfiction prose. Someone who is a good legal writer would, but for the need to master a different substantive subject, be an equivalently good writer of history, economics or, indeed, theology.
Justice Scalia also remembered his days teaching legal writing at the U. Va. Law School:
What I hoped to have conveyed to my charges in those years were merely the prerequisites for self-improvement in writing, which are two things. Number one, the realization—and it occurred to my students as an astounding revelation—that there is an immense difference between writing and good writing. And two, that it takes time and sweat to convert the former into the later.