Legal writing isn't what it should be #7
A majority of lawyers are complacent about their writing, believing something like this: "my writing is pretty good—above average or better."
When I say lawyers are complacent about their writing, I hope I do not sound too critical. I was complacent about my writing while I was in law practice and even for a few years after becoming a legal writing teacher. I think complacency about writing is a tradition in our profession. Some reasons:
When I began law school, I did not understand how important writing would be for my job. But a journalism student, for example, understands from the beginning that writing will be an important part of the job. So part of the problem is that legal education has not emphasized legal writing.
I got good grades in college and, to a certain extent, in law school. So I concluded that because I was smart, I must be a good writer. Not so. I was an average writer. So part of the problem is that we believe that smart people automatically write well.
I got a job at a major law firm, so I concluded that I must be a good writer. Not so. I was still an average writer. So part of the problem is that other successes persuade us that we must be good writers.
For three years law practice, and for my first three years as a legal writing teacher, I owned no books on the subject of legal writing (other than the textbook I used in my course). I owned no legal writing style guides. I did not own a usage dictionary. I often relied on half-remembered platitudes from junior high and high school to deal with the demands of legal writing. But certainly journalists and other nonfiction writers have and consult books on writing regularly. So part of the problem is that we are overconfident.
That's right. We think we're good. So we don't take the craft of legal writing as seriously as we should. Ask a room full of lawyers how many consider their writing to be above average, and a majority will raise a hand. Ask that room of lawyers what percentage of legal writing is above average, and most will say about 25%. "My writing is above average, but most everybody else's isn't."
Ultimately, it is perhaps simply our attitude: "As a whole, the profession disdains literary accomplishment within law . . . ." Bryan Garner, A Dictionary of Modern Legal Usage 518 (2d ed. 1995). When Garner says "literary accomplishment," I take him to mean high-level writing skill. But even if we don't disdain it, we are certainly satisfied in falling short of it. We are complacent.