Another of my favorite student essays:
Thoughts on Legal Writing
When it comes to legal writing, the writing part I get—it’s the legal part that worries me.
I think I’ve always been pretty good at writing. In fact, “Jeffrey, you’re a great writer,” is a phrase I probably heard a hundred times growing up. Sure, my parents accounted for just about all of those instances, but I still like to think there is at least some truth to it. I used to prefer math to English, but after I joined my high school newspaper and math became more than simply who in the class could calculate 7 x 8 the quickest (56, but the trickiest of the times table, right?), that was no longer the case. Grammar, too, used to be the bane of my existence, until my college roommate, a creative-writing major, showed me how powerful and effective language could be when harnessed properly. Top that off with the emerging popularity of stream-of-consciousness writing in prime-time television comedies (e.g. The Office, 30 Rock, Modern Family), and writing had gained its newest, biggest fan in me.
I used to roll my eyes at people who told me, “You don’t answer the phone and say, ‘This is him,’ you say, ‘This is he.’” Now, however, I’m the one who says, “No, no, no, it’s fewer, not less,” and who gets upset every time people spell the opposite of win, as “l-o-o-s-e” (Seriously, it happens all the time). More troubling than all of the grammatical errors is that nobody seems to care. I wouldn’t be as concerned as I am if, when I corrected people (which isn’t that often—I do let some things slide), I were met with the reply, “Ahhh yes, thank you,” as opposed to, “Oh. Whatever.”
But now I am entering my second year of law school, all too quickly approaching the point where I have memo upon memo to research and write, and my only thought is, “my bosses won’t care.” Honestly, are my supervising attorneys going to care if my internal memos are free from grammatical errors? Well, maybe—but will they care as much as I think they should? Doubtful. Even if I turn in writing that would make every English teacher smile, if I have left out even one case relevant to the subject matter or failed to draw the correct analogy, I’m screwed.
The writing aspect of legal writing is of course important, but not nearly to the extent that the legal part is. Grammatical errors are just short of guaranteed to be caught by someone before the letter goes to the client or the motion goes to the judge, and even if they’re not caught: (a) it won’t alter the substance of what I’m saying and (b) the recipient probably won’t care (if they notice at all). But if I cite a case that has been overruled or try to apply a rule that doesn’t really apply, I’m in for a long talk with my boss.
Yes, I know what you’re going to say, “Jeff, just do both—not only research meticulously and write persuasively, but also turn in well-written documents.” Okay, fair enough, but the point remains that comparatively, writing mechanics just aren’t as important as the legal argument. Time is money, and for lawyers, their time is a lot of money. They don’t have much incentive to spend 15 minutes editing a document that has already been written and can no longer be charged for when that 0.25 hours could be spent researching for (and billing) another client.
Maybe I’m being dramatic. After all, in what other profession does one spend upwards of 50 and 60 hours on a three-page motion? Clients pay for more than just finding the law; clients pay for the eloquent conveyance of an idea. They pay for persuasion, clarity, and neatness—and they pay well. The client and judge don’t want to see a comma splice any more than a supervising attorney or judge does. Sure, they may not know it’s called that, but they’ll be able to tell the sentence doesn’t read well. If it doesn’t read well, it doesn’t argue well. If it doesn’t argue well, the judge isn’t convinced. And, if the judge isn’t convinced, well, then my client will loose.
Filed under: Teaching Legal Writing