Dave Hoffman at Concurring Opinions posts a video of a law student symbolically shooting his legal research memo. In the video, he complains that it represents two week of his life, and it “killed him.” Boo hoo.
If this young man was as good at writing as he is at shooting a piece of paper with a rifle from 20 feet away (I’m sure every shooter in Texas will be most impressed with this feat), I would urge his future clients to run, run like the wind, because you’re going to hang.
Writing is one of the most important things lawyers do. We think clearly (if we learned anything in law school) and then communicate our clear thoughts in equally clear ways, whether written or oral. In other words, we write. If we can’t write, and write clearly and persuasively, we can’t do our job. I don’t mean we can’t do it well. I mean we can’t do it at all.
You cannot be a lawyer and not be capable of writing. I know, there are plenty of lawyers around today who think otherwise, but they are wrong. I am right. They are not really lawyers if they cannot write. They are pretenders, using whatever crafty means they can to avoid performing a basic function of their job. They may think that they’ve found a way to circumvent their duty to their clients effectively, but they’re wrong. They have left out a necessary component of their skillset. We know it. The judges know it. You aren’t fooling anyone.
We’re not talking about writing something like this blawg. This is for fun. This is of-the-cuff, rambling, uncited and obviously unedited. This is fluff stuff, barely worth the bandwidth. This is neither put to the test of a thoroughly thought out, bullet proof expression of fully-conceived concepts, nor necessarily intended to persuade anyone of anything. This is not legal writing.
Legal writing is what we do to save other people’s lives. Legal writing is the written expression of our function as advocates, a necessary prong in the practice of law. We cannot fulfill our function if we can’t write.
Having had the pleasure of reading law student briefs, most notably in moot court competitions where the briefs are supposed to be written by the “best and brightest” who anticipate earning large sums of money the following year from Biglaw, I have to tell you that they’re poor. Most aspire to be poor, in fact. They stink.
How is it possible that students manage to make it to the third year of law school without learning how to write a sentence? My guess is that educational theorists have managed to coddle the ability to write out of our educational system in their quest to make elevate students’ achievements by lowering the bar. But that’s a discussion for another day. The point is that students are graduating from law school without the facility to write.
Think about it this way, guys. Writing is means of communicating all those brilliant ideas you think you have to another person. It matters that you are able to write in complete sentences, and that they result in paragraphs with purpose, ending up in fully conceived ideas that serve to enlighten the reader. Every word, sentence and paragraph should have a purpose.
If you find it difficult to do this, work on it. Work very hard on it. It’s your job. More importantly, your clients depend on you to be able to do this. And no, writing isn’t about your feeling “good” about your work, but about someone else understanding what you’ve written and being persuaded by it. That’s legal writing.
If this young man was as good at writing as he is at shooting a piece of paper with a rifle from 20 feet away (I’m sure every shooter in Texas will be most impressed with this feat), I would urge his future clients to run, run like the wind, because you’re going to hang.
Writing is one of the most important things lawyers do. We think clearly (if we learned anything in law school) and then communicate our clear thoughts in equally clear ways, whether written or oral. In other words, we write. If we can’t write, and write clearly and persuasively, we can’t do our job. I don’t mean we can’t do it well. I mean we can’t do it at all.
You cannot be a lawyer and not be capable of writing. I know, there are plenty of lawyers around today who think otherwise, but they are wrong. I am right. They are not really lawyers if they cannot write. They are pretenders, using whatever crafty means they can to avoid performing a basic function of their job. They may think that they’ve found a way to circumvent their duty to their clients effectively, but they’re wrong. They have left out a necessary component of their skillset. We know it. The judges know it. You aren’t fooling anyone.
We’re not talking about writing something like this blawg. This is for fun. This is of-the-cuff, rambling, uncited and obviously unedited. This is fluff stuff, barely worth the bandwidth. This is neither put to the test of a thoroughly thought out, bullet proof expression of fully-conceived concepts, nor necessarily intended to persuade anyone of anything. This is not legal writing.
Legal writing is what we do to save other people’s lives. Legal writing is the written expression of our function as advocates, a necessary prong in the practice of law. We cannot fulfill our function if we can’t write.
Having had the pleasure of reading law student briefs, most notably in moot court competitions where the briefs are supposed to be written by the “best and brightest” who anticipate earning large sums of money the following year from Biglaw, I have to tell you that they’re poor. Most aspire to be poor, in fact. They stink.
How is it possible that students manage to make it to the third year of law school without learning how to write a sentence? My guess is that educational theorists have managed to coddle the ability to write out of our educational system in their quest to make elevate students’ achievements by lowering the bar. But that’s a discussion for another day. The point is that students are graduating from law school without the facility to write.
Think about it this way, guys. Writing is means of communicating all those brilliant ideas you think you have to another person. It matters that you are able to write in complete sentences, and that they result in paragraphs with purpose, ending up in fully conceived ideas that serve to enlighten the reader. Every word, sentence and paragraph should have a purpose.
If you find it difficult to do this, work on it. Work very hard on it. It’s your job. More importantly, your clients depend on you to be able to do this. And no, writing isn’t about your feeling “good” about your work, but about someone else understanding what you’ve written and being persuaded by it. That’s legal writing.
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You’re absolutely right. But you’re on the other side, having come out of the experience. They’re going through it right now. I felt like it too, when I was writing that dumb first year lawyering process paper.
Fortunately for me, I didn’t learn anything there and picked up everything in clinical programs and on the job experience.
Scott, I agree that there are many law students who can’t write, including those who go to work at Biglaw. At the same time, some of the absolute best legal writing that I’ve ever seen has uniformly come from large firm lawyers (best writing ever, hands down was by now Supreme Court Justice Roberts and one of his associates when he was at Hogan & Hartson; they represented co-petitioners in one of my cases). Legal writing takes time and lots of drafts and contemplation – and typically, large firm attorneys are the only ones who have this luxury.
Also, why are you so down on large firm lawyers? I’ve spent the past five years at MyShingle trying to fight against biglaw attorneys’ stereotyped view of solos as hapless losers who couldn’t find a job. If we solos want to be treated with respect, then we should lead by example, and not engage in stereotyping or name calling large firm lawyers either. In my experience, there’s good and bad in every segment of the profession.
I’m not down on lawyers with Biglaw per se. I’m down on the pay scale for associates, and that’s primarily because of the relative paucity of pay for young PDs. Tell me if you have ever met a first year associate worth what they pay. Or a fifth year, for that matter. I’m not critical at all of the rainmakers. They earn their money. This is about the kids.
As for writing, having not worked with Chief Justice Roberts (who is about my age), I can’t speak to his writing skills, but having reviewed hundreds of moot court briefs from all schools, including the big time Tier 1 schools, I remain remarkably underwhelmed. But then again, Justice Roberts isn’t a first year associate, and has clearly aged out of the group I’m writing about.
As for solos trying to get along with Biglaw, that’s really not one of my concerns. They have to believe that they are better, or they couldn’t possibly justify the miserable life they lead. But they do earn. In any event, appeasing Biglaw in the hope that they’ll come to love and appreciate solos just isn’t part of my agenda. They have their own culture, as do we. It doesn’t matter if they don’t “respect” solos. It doesn’t change our lives one iota, and I won’t be awaiting the campfire so we can all sing Kumbaya.
I do think that it matters if large firms respect solos for several reasons, the first and most important being our clients. Many judges come to the bench from the ranks of Prosecutors’ offices or large firms. If they have a positive image of solo and small firm lawyers, our clients get a better shake. Making solos look good is not about ego for me, it’s about my clients. Second, I believe that there are highly qualified lawyers who go to work at large firms because they believe that solo practice is a course of last resort. Some of these lawyers are very talented, and our profession loses them, wastes that talent on paper shuffling rather than representing individuals. I want to portray solo practice as exciting and desirable because I want to attract the best possible lawyers to this end of the profession to improve the quality of representation for all.
Scott, I don’t think you’re being quite fair to the angry law student. I’m not sure what kind of legal writing program that gentleman had to struggle through. But having just about finished my first semester of law school (and first semester of legal writing), I can say I totally understand his rage. It’s really, really hard to teach writing, and I think particularly hard to teach legal writing to first-year law students. The classes might be taught by practicing lawyers instead of professors, and they’re not always good at teaching others the skills that they take for granted. Plus, legal writing is really formulaic. In my experience, humanities-educated students seem to have a particularly hard time stifling their creativity and putting their arguments in a strict IRAC format. The programs aren’t teaching blank slates; students come in with ingrained (and sometimes bad) habits and a particular view of what it means to write. More importantly, students come in with ingrained patters of how to _think_. It’s hard to change those things. That makes doing legal writing during first semester really frustrating for me, and I’m sure a lot of other students have those frustrations too. I’m sure I’ll figure it out, but until then, I bet it’d feel pretty damn good to shoot that memo.
So you’ve just finished your first semester of law school and you now know all about legal writing, eh? You’re in law school now. Don’t bother blaming your professor, or your humanities background or your mother if you’re not performing. It’s now up to you. Trust me, your clients won’t want to hear about your problems. Nor will the judge.
One thing you’ve written concerns me. You say that legal writing is “really formulaic.” No, bad legal writing is really formulaic. Good legal writing is clear, concise and persuasive.
On your definition of good legal writing, I believe you. I’m not trying to say otherwise. But I wish I could show you the comments on my memos – we get graded on how well we can follow the formula. I think the philosophy is that once you master the pattern, you can make it your own – the form gets internalized and the substance takes over… but until then, it’s IRAC IRAC IRAC until we’re ready to vomit. That’s what makes legal writing so frustrating in law school. I feel like I am, today, a worse writer than I was four months ago. I’m confident that I’ll get better at writing in this style, but the learning curve is steep, and feeling dumb is not fun.
Also, I wasn’t trying to blame anyone for my not performing. I’m not a bad writer. It’s a good thing I don’t have clients right now, or have to show anything to a judge. I’m just starting at this. By the time I get to that point, I’ll be both a lot better and a lot more confident. With luck and work, by then I’ll be writing at your “clear, concise, and persuasive” standard. But the process of getting to that point is long, and it isn’t easy. People generally don’t come into law school knowing how to think and write like lawyers – that’s what classes, clinics, and summer jobs are for – so give us first-years a little slack. I don’t want to complain for the sake of complaining; I was just trying to give a little sympathy to the guy who was so angry at his memo.
What was it like when you were in school? Did they teach legal writing in a separate course, within other courses, or not at all? Did you ever feel like you were learning to write all over again? Did you go into your first job not knowing a thing and had to learn by doing? You obviously think it’s pretty important… so how did you learn it?
Relax, Sai. This is all generic stuff. I don’t know you, so it isn’t personal about you or anyone else. I’m sure you will get it, mostly because you’re interested and want to be a good writer. That’s half the battle.
As for my experience, there was no legal writing course (as far as I can remember, anyway). But I started before law school. I was an editor for a legal publication while in College to pay the rent. I clerked during summers and holidays before law school. Once in law school, I clerked for a law firm as well, again to pay the rent. This was clerking in the days when you had to actually produce something or you were out on your butt. I was expected to produce quality work that was actually used. I learned to write because I needed to eat. It was a symbiotic relationship.
Sorry for getting a little wound up. As you can tell, legal writing class is a raw topic, probably because we all know that it’s going to be the most of what we do as lawyers, and we’d better get good at it.
In any case, my torts class got a good laugh out of the video, so thanks for the link.
I had to Google “IRAC.” I must not write very good.
duh. I googled it too.
IRAC (pronounced EYE-rack) is an acronym that generally stands for: Issue, Rule, Analysis, and Conclusion.
I was a horrible writer in law school. I tried and tried and just couldn’t understand what it was they were looking for. The professor would lecture us about what made a good memorandum or brief but it never made sense to me.
Then over one summer I clerked for a judge and reviewed countless memoranda and motions, then had to use them to base research and construct rulings. Suddenly what made good and bad legal writing became incredibly clear after months and months of pointless rhetoric.
Now writing motions and briefs is something I enjoy and look forward to. Law school doesn’t know how to teach it, and they make the process incredibly arduous and frustrating. It is also taught too early, before you’ve perfected your ability to read and reason through a case. The other problem is that legal writing is taught simultaneously with legal research, leaving you only mediocre at both. I remember my classmates being so frantic to find cases that they didn’t give much thought to the construction of their arguments. Classes for Legal writing should be saved until a student can really understand what the point is. With the system as I experienced it, I would have happily shot my papers.