Friday, April 18, 2008

Reasons legal writing doesn't improve

A commenter writes:
Writing is a fundamental skill. Law schools should put much greater emphasis on this fundamental. Those students who didn't develop good writing skills before they got to law school should take more than one or two legal writing courses. At the least, they should demonstrate a mastery of grammar before they're awarded a law degree.
No one can really argue with any of these points. And some law schools are doing more and better writing training. But writing education in law schools will not rise to the level this commenter would like. I offer two reasons.

First, mastering professional writing takes too long and is too big a job for law schools. No matter how proficient a law-school graduate is at the moment of graduation, there will always be something someone considers "fundamental" that the graduate will not have mastered. Ultimately, the graduate-turned-lawyer must take responsibility for mastering professional writing. The law school can and will do only so much.

Second, law schools--especially top ones--turn out thousands of lawyers every year, and these lawyers get high-paying jobs doing sophisticated work for large clients who pay high fees. That these lawyers often lack fundamental writing skills doesn't seem to matter. That their writing, even if fundamentally sound, is not crisp, vigorous, and plain doesn't seem to matter. That they often rely on forms and precedents that perpetuate archaisms, formalisms, and wordiness doesn't seem to matter.

Sure, I think it's disappointing and sometimes disgraceful that shoddy or even mediocre legal writing is everywhere. But the shoddiness and mediocrity don't seem to be causing big problems. The work gets done, the deal closes, the case goes to trial, and the brief gets filed and wins the case. Either there's not much real cost from bad legal writing, or it's very hard to measure.

On a related note, this is why it's hard for me to sell my services as a plain-English reviser. Why would a bank hire me to revise its home-loan documents into plain English? Are consumers complaining about the writing? Not much. Are the regulators criticizing the bank's forms? Not much. Is the bad writing causing litigation or other problems? Not much. The current documents work, so why pay to have them fixed?

Frankly, the law rolls on quite lucratively for many lawyers, so there's little incentive to improve legal writing. But we still try.

Thursday, April 17, 2008

Expectations of what I teach

Recently, a tenured professor walked into my office, holding a student-written paper. The professor was teaching an advanced course in which students had to write a scholarly paper. "I'm very upset that our students can't write," he said. "Look at this. It's terrible."

The professor then pointed out some of the writing problems in the paper. Some were analytical and structural, but some were problems of grammar, punctuation, usage, and style.

My first unspoken reaction was that it is not my job to teach students the analytical and structural approach to writing scholarly papers. If the professor wants the scholarly papers to be written in a certain way, he should teach that way to his students. He cannot assume students already know how. All I teach is memos and briefs, which are not the same as scholarly papers.

My second unspoken reaction was that it is not my job to teach students grammar, punctuation, usage, and style. If the professor wants the scholarly papers to be well written from those perspectives, he should recommend a style manual, refer the student to the writing center, or work with the student individually to fix those problems. All I teach is memos and briefs.

Were my unspoken reactions wrong?

The subtext here is that many of the tenured faculty seem to believe that students should emerge from the first-year legal-writing course with a solid foundation in grammar, punctuation, usage, and style and a mastery of all forms of written legal analysis.

Wednesday, April 16, 2008

U.S. House passes plain-language law

The House has passed the Plain Language in Government Communications Act of 2008.

It requires agencies to rely on the Federal Plain Language Guidelines or the SEC's Plain English Handbook.


Hat tip to Mister Thorne of Set in Style.

Thursday, April 10, 2008

Writing to Win: Plain Language Jury Instructions

I attended and spoke at Writing to Win: Plain Language Jury Instructions, sponsored by Washburn University School of Law. It was a great conference, very professionally run. Prof. Lyn Goering there was in charge, and she was superb.

More and more states are thinking about plainifying their jury instructions and, of course, change has to come from, or with the approval of, the judiciary. There were a lot of judges there, and that's great. The process here in Texas is still moving along, too.