Why Eli Can’t Write (Like a Lawyer)

For those of you who attended the elite law schools or read Above the Law regularly, you probably already know this.  For me, this came as a shock.  Did you know that students at Yale and Penn law schools are taught legal writing by third year law students?

Rick Garnett at PrawfsBlawg let the cat out of the bag in his effort to dispute Jason Solomon’s point that this is a major failing for those schools in the USN&WR rankings.  Since I don’t give a hoot about the rankings, I didn’t pay attention.  Here’s the deal:

Over at MoneyLaw, Jason Solomon writes that the fact the first-year legal-writing program at Penn (as at Yale) is taught by 3-L’s “prevents Penn from having an ‘outstanding’ JD program”.  Why should this be true?  He elaborates:

So Penn, it’s time to spend some money on real legal writing professors. The people who head Penn and Yale’s programs may be terrific, but there’s only so much one person can do. The law student instructors may be doing a good job given what they know, but… they’re law students.

So the one thing, the single thing, we think law students should be able to do on Day 1, write like a lawyer, is the one thing that these Ivy League law schools believe to be beneath their doctrinal dignity.

They will have a tenured professor, sitting in a chair with somebody’s name on it, teaching Law and Post-Impressionist Painting, but they can’t be bothered having someone with any actual experience, any hands-on capability, teaching law students how to write?  Are they nuts?

Rick questions whether this is really a big deal, big enough to be worthy of a ranking problem for these schools.  Bear in mind that lawprofs and law schools live and die on these rankings, as if the education obtained is affected rather than just cash-flow.  Rick asks a litany of questions to challenge the assumptions that 3L students can’t be as good teaching legal writing as “real professors.”   The phrase “the blind leading the blind” comes to mind. 

As with all attempts to justify bad concepts via absolutism, there are probably some 3L students who can do a minimally acceptable job passing along whatever they learned to be legal writing to the next generation.  But this completely misses the point of both legal writing and law school.  The best they could hope for is an accurate mechanical transmission of what these kids are told is legal writing.  They don’t know legal writing because they’ve never done legal writing. 

If Rick thinks that it’s that mechanical to write successfully as a lawyer, then he needs to get back to the trenches.  Good legal writing is hard.  Successful legal writing is very hard.  Most lawyers can’t do it well.  Why would one take the huge risk that a third year law student who has zero experience with bad legal writing can teach others to be competent at it?

But the bigger picture is that legal writing is one of the few skills that budding lawyers need.  The ability to write for legal purposes is basic; it’s what lawyers are expected to do.   Whether it’s a Biglaw partner or a client, the day that kid becomes a lawyer and has to write something, he’s expected to be able to do it.  This is one of, if not the, primary skills one needs to practice law.   And you’re sending him away from law school without it? 

Jim Chen at MoneyLaw (edit: via Larry Rosenthal) has recapped the points:

  1. Legal writing is an awfully important skill. It is probably the only skill that employers will expect recent graduates to have . . . .

  2. Successful legal writing is a difficult skill to learn. I spent many years supervising young lawyers in a rather sophisticated appellate practice. Rarely did a recent graduate display much competence until after at least a year of work. . . .

  3. It is extremely unlikely that someone who cannot write well will be [a] successful teacher of legal writing. Yet, substantial experience is generally a necessary if not sufficient condition for being able to write well. . . .

  4. The typical 3L has very little writing experience — the 1L [legal research and writing] curriculum, maybe a law review note, and a few memos produced at a summer job that probably were not very good.

  5. A law school that hires individuals with enough experience to have a high level of briefwriting skills and the ability to teach them will confer on its students a substantial advantage in the job market.

  6. That last point, it bears remembering, goes to the heart of why law students burn a thousand days and often incur more than $100,000 in undischargeable debt: to get jobs.

For crying out loud, teach the students how to write.  Give them something useful for their money.  And put the rest of us out of our misery trying to clean up the crap they produce.

And let me add one thing to Jim’s list.  Maybe law schools ought to be awfully careful even when they have lawprofs teach legal writing.  Maybe, just maybe, some of them lack the “substantial experience” in the trenches that distinguishes a “successful” teacher of legal writing from a teacher of what an academic thinks is good legal writing?  There can be a difference.  Just think about it. 

16 thoughts on “Why Eli Can’t Write (Like a Lawyer)

  1. Norm Pattis

    When is the last time you saw a really good trial lawyer who was a graduate of one of the status factories?

  2. Carolyn Elefant

    Excellent post, Scott. In all of the debate over the need for more skills training in law school, many overlook the most important legal skill of all; writing. And because good legal writing depends upon analysis, students need to hone analytical skills as well.
    Whenever I am asked what skill is most important to starting a law practice, I repeatedly say writing. You can learn how to file a complaint on the job, you can take a CLE to learn how to handle a bankruptcy case. But good legal writing takes time. I have been writing for 20 years now. I actually received a D on my first legal writing assignment and I worked like a dog in that class, raising my grade to an A- by the end of the term. But I still work on my writing (which has gotten some compliments from judges and OCs) – I read the latest books and blogs on it, I pay attention to the well written briefs that come through my door. Great legal writing is such a joy to behold, a combination of analytical acumen and art. I think those who minimize it are unable to reconize it.

  3. SHG

    Great legal writing is such a joy to behold, a combination of analytical acumen and art.

    Exactly.  They should carve this sentence over the door to every law school.

  4. Jim Chen

    Thanks for the shout-out, Scott. I should stress that the points you attribute to me were actually made by Larry Rosenthal of the Chapman University School of Law in commentary on Rick Garnett’s Prawfsblawg post.

  5. Mike

    When was legal writing ever good? I’ve read old briefs and judicial opinions. Really bad stuff.

    I actually think legal writing has gotten better. Just look at one piece of evidence – judicial opinions.

    It’s well-known that law clerks write substantial portions of judicial opinions. Those law clerks (at least at the federal level) tend to come from Ivy-league schools. Most modern federal opinions are pretty clear. They often miss issues that a specialist would see; but the writing is usually good.

    Relatedly: Almost every lawyer considers himself an above average legal writer. So the discussion is always amusing. It’s a bunch of people saying, “Oh, most legal writing sucks. I can’t stand reading the crap *other people* produce.” Yet we never see writing samples from those criticizing the current state of affairs.

    Who is really qualified to say who is a good legal writer? I’ve worked with a lot of people. I know first hand that Norm is excellent when he wants to be. Pretty much as good as he gets. Briefs filed by the Solicitor General’s Office are also spectacular. (As are briefs by people who used to work in those organizations.) Outside of a few select people, though, I don’t see much genius.

    Which is what you’d expect. How many fiction writers are there? How many are worth reading? How many of those worth reading are exception? We remember great authors for a reason: There aren’t very many of them.

    So we can’t really expect everyone to be an Oliver Wendell Holmes.

  6. SHG

    Is there a reason why you’ve decided to annoint yourself the arbiter of good writing, particularly since that isn’t relevant to the issue presented by the post?

  7. David M. Gottlieb, Esq.

    Forget legal writing; look at academic writing in general, or better yet, plain old writing. From the time a child enters school, right through college, no one really pays attention to writing. Sure teachers and professors will correct some things here and there; make sure the sentences make sense and that the paragraph structure isn’t all whacked out. That alone, however, will not make someone a better writer. It takes a tremendous amount of effort to learn how to write well. Of course some people will be able to figure it own on their own, but for the rest of us, we need help; a lot of help. Learning to write well is just as important as studying history, math, philosophy, and all the other subjects that make up an education. We (lawyers) need to be able to convey ideas, arguments, and the law; and we have to be convincing. Having one or two semesters worth of legal writing class taught by students–while better than nothing–is not enough.

    Want proof? It took me over half an hour to write this. That’s absurd. I’ve attended CLEs on legal writing, read books on it, had my colleagues proofread my work, and it still takes me half an hour to write one small paragraph. To be fair, I’ll take my fair share of the blame. I should have put more effort into my writing back when I had professors who could have helped, and I wouldn’t be posting here, whining.

  8. Kathleen Casey

    We become better lawyers with practicepracticepractice. We also need to balance of effort + desire. One without the other will not make us better.

    We become better writers the same way.

    Cheer up, in ten years, you should be able to “write this” in half the time. Maybe less (not fewer) time!

  9. Jimmy

    The notion that the best lawyers come from the most prestigious schools is rubbish in general but especially true in the case of so-called trial lawyers. Relatively few of the great “trial lawyers” went to fancy schools. Cochran? Jamail? Spence? Racehorse Haynes? John W. Davis? The reasons are many and well beyond the scope of this response.

    I’m not here to disparage places like Harvard. Doubtless, many of the people they turn out become excellent lawyers. But contrary to popular opinion, many do not. Many of them are rich kids who parlayed a slew of advantages into getting in there. Many others are test-takers who excel at taking standardized tests but can’t write, speak, or argue to save their lives.

    If my fortune were on the line in some litigation, I’d sooner take my chances with a great writer and oral advocate from state college than with a random guy from Harvard Law School. And that’s based on my experience as a lawyer. Good legal writing wins 90 percent of cases, and an astonishing number of kids from the top schools aren’t any better at writing than the kids from other schools.

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