The ABA Journal recently published an article criticizing modern lawyers’ ability to write. Author Bryan A. Garner blames law schools. What’s worse, he claims that most lawyers don’t know they’re bad writers and that somehow the industry is under the collective delusion that legalese is the mark of good writing.
Mr. Garner is certainly not entirely wrong. Law school grading policies definitely contribute to the downplaying of literary aptitude.
They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments.
Traditional law school exams focus on speed over quality, resulting in a kind of brain dump that does nothing to teach future lawyers to become masters of their craft. These exams are a far cry from the well-developed legal brief appellate courts expect or the nuanced fact-intensive motions that most trial courts require.
While law schools play a role, wordsmiths among attorneys also get caught up in “the way it’s always done.” Mr. Garner points out that this tendency to unwittingly write poorly is particularly noticeable among transactional attorneys. This is most likely because transactional attorneys work from forms far more often than litigants. Changing those forms is time-intensive and therefore costly, so instead the old legalese traditions live on, even if the authors know better.
The same can also be said for new lawyers. When an experienced litigant writes a motion, he can start from scratch because he is well versed in what needs to be included. When the freshly admitted lawyer goes to write the same motion, she has to seek out an example, either from an online formbank or her firm’s senior partner, to make sure she covers all the issues. Her lack of confidence will often stop her from updating the form’s language because she assumes it is there for a reason.
There is also tremendous pressure to turn work out quickly. Associates don’t feel free to take time updating the language of a form, motion, or brief. Instead they work as quickly as they can to turn out passable work for the partners’ approval. Quantity and not quality is the primary concern.
As long as these tendencies remain, our industry will continue to be the butt of many jokes. Top partners and solo practitioners need to lead the way, improving the standard of filed pleadings and transactional forms. Similarly, judges must hold poor writers accountable for their errors so they will improve. If we in the industry want to be better legal scribes, we need to be willing to buck the trends and be innovative in our writing.