Legal analysis: spotting the biggest weakness

So how do you know if the writing problems you see in a piece of legal analysis are just writing problems or are really failure to understand the substance?

The biggest clue is when the writing makes little sense. I don't know how else to say it. The writing is disjointed, disorganized, and sketchy to the point you can't be sure what the writer meant. Specific clues--

• You aren't sure which are the key authorities.
• You can't see clearly how those authorities apply to our problem.
• The issue posed on page one is not directly answered anywhere.
• The Conclusion section contains a new argument or a new authority.

These problems reflect poor analytical understanding. When you don't fully understand the authorities, you can't analyze well, you can't organize well, and you sound lost.

Caution: We sometimes assume the writer is just dim. It is not always so. I have seen people produce bad legal analysis for reasons besides lack of brain power:

• Haste. Up against a deadline and ran out of time.
• Volume. Working on too many projects and devoting too little time to most of them.
• Laziness. Instead of reading and understanding the authorities, the writer fills the pages with quotations and paraphrased passages that sound like legal analysis.
• Apathy. The writer just doesn't care enough to get the substance down.

So file this away as a possible "writing problem" in the writers you supervise. They didn't master the material. It happens.

Tomorrow, tips for diagnosing and fixing the problem.