Wednesday, September 19, 2007

Legal writing isn't what it should be: #3

Lawyers imbibe lots of poor writing in judicial opinions.

When you are in law school, you read lots and lots of judicial opinions. These judicial opinions were not chosen for their writing style; they were chosen for their content. Once you begin practicing law, you continue to read judicial opinions. After all, this is a common-a law nation, and the rule of precedent requires you to research and read judicial opinions to answer many legal questions.

But many judicial opinions are poorly written, and most are mediocre at best. One commentator has said that lawyers, in their reading, are exposed to “the largest body of poorly written literature ever created by the human race.” John M. Lindsey, The Legal Writing Malady: Causes and Cures, N.Y. L.J., 2 (Dec. 12, 1990).

I don’t mean to be hard on judges. Their writing isn't any worse than the writing of practicing lawyers or law professors. It’s just that their writing is subject to a lot more scrutiny. But because we spend so much time reading judicial opinions, their words, rhythms, and patterns enter our brains. We begin to think and write like the judicial opinions we read. That’s not good.


It is possible to improve judicial-opinion writing, and here is a good place to start:

Joseph Kimble, The Straight Skinny on Better Judicial Opinions, Mich. B.J. 42 (Mar. 2006).

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