Legal Writing Is Not As It Should Be

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LEGAL WRITING IS NOT WHAT IT SHOULD BE
WAYNE SCHIESS
*

Lawyers write badly.
1

Most lawyers write poorly.
2

The way many lawyers write is disappointing to their
friends and obnoxious to their clients.
3

Legal writing, despite centuries of criticism (constructive
and otherwise) remains steadfastly awful.
4

Its actually not as bad as all that.

Ive taught legal writing to lawyers and law students for se-
venteen years, and Ive read a lot of legal writing. I would say
that some legal writing is very good and some legal writing is
very bad. But most legal writing is average or below average
mediocre at best. Every lawyer has no doubt read lots of legal
writing: judicial opinions, correspondence, statutes, agreements,
memos, court documents, and more. I believe most lawyers
would agree with me that most legal writing is mediocre at best,
and many would agree with the four quotations above.
The question is why. In this article, I try to explain why le-
gal writing is not what it should be. I lay the blame on nine com-
plex and connected factors, and predict that, because of the many
causes, significant improvement in legal writing will be difficult if
not impossible to achieve. I will, however, offer three recommen-
dations.

* Senior lecturer, The University of Texas School of Law.
1. Christopher T. Lutz, Why Cant Lawyers Write?, in THE LITIGATION
MANUAL 200 (John G. Koeltl & John Kiernan eds., 1999).
2. TOM GOLDSTEIN & JETHRO K. LIEBERMAN, THE LAWYERS GUIDE TO
WRITING WELL 3 (2d ed. 2002).
3. MARTIN CUTTS, THE PLAIN ENGLISH GUIDE 140 (1995).
4. THEODORE L. BLUMBERG, THE SEVEN DEADLY SINS OF LEGAL
WRITING 1 (2008).
Electronic copy available at: http://ssrn.com/abstract=1661130
2 SOUTHERN UNIVERSITY LAW REVIEW 37

1. THE WRITING HIGH SCHOOL AND COLLEGE STUDENTS DO IS
USUALLY SELF-EXPRESSION OR KNOWLEDGE-TELLING, NOT
ANALYSIS.
The writing required of students in high school and college
is often what I call self-expression writing rather than exposito-
ry writing. Self-expression writing tends to be writer-focused, not
reader-focused.
5
That is, self-expression writers focus primarily
on expressing their own ideas. This is surely a necessary deve-
lopmental step for improving writing skill, but it is two steps re-
moved from the skill of analytical legal writing. Once high school
and college writers move beyond self-expression, they usually
produce writing that can be called knowledge-telling
6
or convey-
ing information.
But legal writing is not self-expression, and it is another
step beyond knowledge telling. One author has referred to the
skill of analytical legal writing as knowledge transforming.
7

Thus, legal writing is a form of expository writing in which the
focus should be on the readers ability to understand.
8
This is in
contrast to self-expression writing, where clearly and effectively
conveying information to the reader is secondary to expressing
ones self the way one desires. And it is in contrast to knowledge-
telling, in which the primary purpose is conveying information,
not analyzing a problem.
Of course, self-expression and knowledge-telling are neces-
sary steps, as Ive acknowledged. But I can report, based on
anecdotal evidence, that some students get little training even in
these two developmental steps. Some college curricula do not
require much writing at all. For example, in my teaching of the
required, first-year legal writing course, I often have students
who studied science or engineering in college. Many of these stu-

5. See Nancy Sommers & Laura Saltz, The Novice as Expert: Writing
the Freshman Year, COLLEGE COMPOSITION AND COMMUNICATION, Sept. 2004, at
124, 127 (discussing college freshman writing as self expression).
6. See Christine M. Venter, Analyze This: Using Taxonomies to Scaf-
fold Students Legal Thinking and Writing Skills, 57 MERCER L. REV. 621, 638
(2006) (noting that some law students mistakenly see analytical legal writing as
a knowledge-telling task).
7. Id. at 639.
8. WAYNE SCHIESS, WRITING FOR THE LEGAL AUDIENCE xv-xvi (2003).
2009] LEGAL WRITING IS NOT WHAT IT SHOULD BE 3

dents arrive at law school and tell me they have never written a
paper in college.
Even with prior training and practice in self-expression and
knowledge-telling, learning analytical legal writing will be hard.
Granted, law students tend to be intelligent and hard-working,
but many begin their legal educations without a solid foundation
for the learning of analytical writing.
2. LEGAL WRITING COURSES MUST COVER LEGAL RESEARCH, THE
CONVENTIONS OF LEGAL ENGLISH, OBJECTIVE WRITTEN LEGAL
ANALYSIS, AND PERSUASIVE WRITTEN LEGAL ANALYSIS; THIS
LEAVES LITTLE TIME TO FOCUS ON FINE POINTS AND WRITING
STYLE.
When judges, lawyers, and law professors not to mention
authors of legal writing books complain that lawyers or law
students cant write well, they generally do not mean that law-
yers and law students cant produce written legal analysis. Al-
though that is sometimes what they mean, most of the time, ac-
cording to Professor Douglas Laycock, they are usually complain-
ing about something closer to legal writing style:
When law firms and faculty say that we should
teach our students to write better, I think they
mean something like this: Our students writing is
often dull and plodding, sometimes verbose, some-
times weakly organized, and we should help them
make their writing more readable, more effective,
and more powerful.
9

There is so much to cover in teaching first-year legal writ-
ing to novices that legal writing faculty cant do much else espe-
cially if students are to have chances to practice and learn from
feedback. That is why Professor Laycock titled his article Why
the First-Year Legal-Writing Course Cannot Do Much About Bad
Legal Writing.
10
He was convinced, and I am too, that the first-
year writing program can do very little in direct pursuit of this

9. Douglas Laycock, Why the First-Year Legal-Writing Course Cannot
Do Much About Bad Legal Writing, 1 SCRIBES J. LEGAL WRITING 83, 83 (1990).
10. Id.

goal.
11
Thats because [f]irst-year students must learn a large
body of fairly objective information before they can write any-
thing . . . .
12

Let me explain. Here is a list I compiled of what I try to
teach in my first-year, first-semester legal-writing course. One
over-simplified description of the course would be to call it a
course covering the legal memorandum. I try to teach students
how to do each of the following:
Determine the question raised in a legal problem
and express that question in writing.
Determine the legally and contextually relevant
facts of a legal problem and express them in writ-
ing.
Determine the best course of research for a legal
problem and find relevant authorities to analyze a
legal problem.
Choose the appropriate authorities to use to ana-
lyze a legal problem.
Order the authorities to be used to analyze a le-
gal problem and explain them in writing.
Analyze a legal question in light of the authori-
ties and express the legal analysis in writing.
Recognize possible counter-analyses and express
them in writing.
Use correct citation form and placement.
Use correct and appropriate conventions of legal
writing.
With all these tasks to accomplish, the legal-writing teacher
doesnt have time to make the students into good stylists.
13

11. Id.
12. Id.
13. See Terry Jean Seligmann, Why Is A Legal Memorandum Like An
Onion? A Students Guide to Reviewing and Editing, 56 MERCER L. REV. 729,


And thats just the first semester. I hope youll see why I
havent much time for focusing on the things that would make
mediocre legal writing good or good legal writing great, like voice;
rhetoric; fine points of grammar, punctuation, usage, and style;
and sentence-level skills, like use of subordination, use of passive
or active voice, placement of modifiers and relative clauses, and
so on.
Ill frankly tell you that struggling to cover just the funda-
mentals of written legal analysis and then to be told that your
students cant write is a frustrating and maddening experience.
Yet it is an experience I have had, and one I try not to take per-
sonally. After all, the skill of written legal analysis is mostly
information of the sort the faculty [and lawyers and judges] has
forgotten it ever had to learn.
14

Compounding the problem that those who do not teach
first-year legal writing frequently do not understand or remem-
ber the nature of the course and its limitations is the second-
class status of the legal writing course. Professor Lisa Eichhorn,
who has taught civil procedure and legal writing, commented
that her students perceptions were that legal writing is not a
real law school course.
15

Then we doubly compound the problem because at most law
schools, those who teach the first-year legal writing course are
second-class citizens.
16
Often, those who teach legal doctrine, le-
gal theory, and substantive courses are tenured and well-paid,

732-37 (2005) (describing the depth and complexity of written legal analysis in
the traditional legal memorandum).
14. Douglas Laycock, Why the First-Year Legal-Writing Course Cannot
Do Much About Bad Legal Writing, 1 SCRIBES J. LEGAL WRITING 83, 83 (1990).
15. Lisa Eichhorn, Writing in the Legal Academy: A Dangerous Sup-
plement?, 40 ARIZ. L. REV. 105, 131-33 (1998).
16. See Jo Anne Durako, Second-Class Citizens in the Pink Ghetto:
Gender Bias in Legal Writing, 50 J. LEGAL EDUC. 562 (2000) (using salary survey
data to show that even within the so-called pink ghetto of legal writing, wom-
en directors of legal writing get lower salaries than male directors of legal writ-
ing. Women directors also have weaker titles, are more likely to be teaching
exclusively in the first year, and have less job security); See also Jan M. Levine,
You Cant Please Everyone, So Youd Better Please Yourself: Directing (Or
Teaching In) a First-Year Legal Writing Program, 29 VAL. U. L. REV. 611 (1995)
(describing teacher status, program design, and staffing issues for legal writing
programs).

while those who teach legal writing are untenured and poorly
paid:
[Law school] hierarchy is gendered, with the lowest
rank overwhelmingly composed of women and the
highest rank overwhelmingly composed of men.
The players in this status hierarchy are the facul-
ties and administrations of American law schools.
At the top are the tenured doctrinal professors,
roughly 70 percent of whom are male; at the bottom
are legal writing professors, roughly 70 percent of
whom are female.
17

A discussion of a second-class status of legal-writing faculty
is beyond the scope of this article. There are several authors who
have written extensively on the subject. For further reading, I
would particularly recommend the writings of Professors Kathryn
Stanchi and Jan Levine.
18

3. LAW SCHOOLS DO NOT ADEQUATELY TRAIN STUDENTS IN LEGAL
DRAFTING.
Of the many types of legal writing, legal drafting which I
call the creation of binding legal text,
19
is typically of the poor-
est caliber.
20
The legal drafting expert Kenneth Adams labels it
the dysfunctional language of mainstream contract drafting . . .
.
21
Its worth asking why this should be so if [l]ike other la-
wyering skills, drafting can be done well or poorly. Doing it well

17. Kathryn M. Stanchi, Who Next, The Janitors? A Socio-Feminist
Critique of the Status Hierarchy of Law Professors, 73 UMKC L. REV. 467, 467
(2004).
18. See generally Kathryn M. Stanchi & Jan M. Levine, Gender and
Legal Writing: Law Schools Dirty Little Secrets, 16 BERKELEY WOMENS L.J. 1
(2001); Pamela Edwards, Teaching Legal Writing as Womens Work: Life on the
Fringes of the Academy, 4 CARDOZO WOMENS L.J. 75 (1997); Ilhyung Lee, The
Rookie Season, 39 SANTA CLARA L. REV. 473 (1999); Mary Beth Beazley, Riddi-
kulus!: Tenure-Track Legal-Writing Faculty and the Boggart in the Wardrobe, 7
SCRIBES J. LEGAL WRITING 79 (1998-2000).
19. WAYNE SCHIESS, PREPARING LEGAL DOCUMENTS NONLAWYERS CAN
READ AND UNDERSTAND 25 (2008).
20. KENNETH A. ADAMS, A MANUAL OF STYLE FOR CONTRACT DRAFTING
xxvi (2d ed. 2008).
21. Id.

is something that can be taught and learned.
22
One answer is
that law schools arent teaching legal drafting. The legal drafting
expert Joseph Kimble has recognized the problem: [T]he schools
have neglected legal drafting.
23

The two areas commonly covered in legal-writing courses
are objective legal analysis in legal memorandums and persua-
sive legal analysis in briefs. Yet the lawyer and legal writing au-
thor John Phelps Warnock has asserted that [m]any successful
lawyers never write a brief or read one during their entire ca-
reers.
24
And the nationally known legal writing expert Bryan
Garner has asserted that every lawyer occasionally gets involved
in legal drafting of some sort even if its only a settlement
agreement.
25
Most practicing lawyers tell me that they did not
study legal drafting in law school. In an informal survey I con-
ducted of 330 practicing lawyers, seventy-nine percent said their
required course on legal writing did not cover legal drafting.
26

If many lawyers never write briefs and if nearly all lawyers
do legal drafting, then its unfortunate that so many law schools
fail to train students in legal drafting. Of course, its not a prob-
lem found only in law schools, according to Robert Dick: It is
difficult to convince the profession in general that drafting is a
special skill that requires intense application.
27
Maybe legal
drafting is not taught because many lawyers do not see a prob-
lem: We have served with hundreds of legally trained legisla-
tors, lawyers, and law professors in various drafting environ-
ments, say Robert J. Martineau and Michael B. Salerno. Of

22. THOMAS R. HAGGARD, LEGAL DRAFTING IN A NUTSHELL vi (1996).
23. Joseph Kimble, How to Mangle Court Rules and Jury Instructions,
8 SCRIBES J. LEGAL WRITING 39, 59 (2001-2002).
24. JOHN PHELPS WARNOCK & HAROLD C. WARNOCK, EFFECTIVE
WRITING: A HANDBOOK WITH STORIES FOR LAWYERS 35 (2003).
25. BRYAN A. GARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT WITH
EXERCISES 89 (2000).
26. Survey results on file with the author. Here are some typical com-
ments from survey responders: Legal drafting is essential to the practice of
many attorneys. I would have benefitted from a course in legal drafting. I do
not think law schools provide enough legal-drafting training. Most law stu-
dents that we see have had very little exposure to the real world of legal draft-
ing, and it shows. Providing more training in the fundamentals of legal drafting
would likely diminish the learning curve that now exists.
27. ROBERT C. DICK, LEGAL DRAFTING 4 (2d ed. 1985).

these, only a few have ever confessed an inability to draft any
type of legal document.
28

My own experience confirms that lawyers, as a general rule,
do not draft well. I look at the legal drafting I see in routine legal
documents and it is generally filled with archaisms, unnecessary
legalisms, and other drafting errors. Law students and lawyers
need drafting training, and most do not get it. That gap is one
cause of poor legal writing.
4. LAWYERS IMBIBE LOTS OF POOR WRITING FROM JUDICIAL
OPINIONS AND OTHER REQUIRED READING.
If lawyers write poorly, then [w]here did we learn such
stuff?
29
The author and writing expert Edward Good has the
answer:
We learned it from judges, legislators, regulators,
headnote writers, treatise writers, and editors for
C.J.S., A.L.R., and Am. Jur. 2d. We learned to spew
out poorly written judicial fluff, endless legislative
goo, brow-wrinkling regulatory ooze, and mounds of
words posing as sentences. We learned to build
those weighty sentences, stretching on forever,
with stuffy abstractions, piles of pillowy nouns, and
imprecise compound prepositions. We learned to
prefer the passive voice. We learned to proliferate
clauses. We learned to write like the stuff we read.
We learned, in short, to break every rule of style in
the book.
30

For three years, every law student reads that stuff. But
most of all, law students read judicial opinions, lots and lots of
judicial opinions. Let us remember that the judicial opinions in
our casebooks were not chosen for their writing style; they were
chosen for their content. But many judicial opinions are poorly
written, and most are mediocre at best. One commentator has

28. ROBERT J. MARTINEAU & MICHAEL B. SALERNO, LEGAL, LEGISLATIVE,
AND RULE DRAFTING IN PLAIN ENGLISH 3 (2005).
29. C. EDWARD GOOD, MIGHTIER THAN THE SWORD: POWERFUL WRITING
FOR THE LEGAL PROFESSION xx (1989).
30. Id.

said that lawyers, in their reading, are exposed to the largest
body of poorly written literature ever created by the human
race.
31

Whats more, the content of judicial opinions is almost al-
ways laid out and displayed poorly: In contrast [to the user aids
in a West-published opinion], casebooks assigned to beginning
law students are stripped of even these convenient guides. In-
stead students are presented with pages of choppy, edited opi-
nions without headnotes, subtitles, white space, colored print, or
other textual highlights.
32

Once students finish law school and begin practicing law,
they continue to read judicial opinions and other legal documents.
So the pattern continues. It is not my intention to be hard on
judges. Their writing is not any worse than the writing of prac-
ticing lawyers or law professors. Its just that their writing is
subject to a lot more scrutiny and gets a lot more attention. And
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, and thats not
good: Lucidity does not come naturally to most law students,
perhaps because they have been forced in their legal studies to
read so much bad writing that they mistake what theyve read for
the true and proper model.
33

David Mellinkoff elaborated the effect of all this reading:
After three years of forced reading of opinions, law
students respond automatically to words by judges.
Good writing or bad writing, it is a judges writing.
This is the language of those who decide the cases.
This is how it is done. The recollection of how it
was said often outlasts the recollection of what was
said. For better or worse, the opinion affects the

31. John M. Lindsey, The Legal Writing Malady: Causes and Cures,
204 N.Y. L.J. 1, 2 (1990) (explaining the poor writing of American lawyers).
32. Janeen Kerper, Lets Space Out: Rethinking the Design of Law
School Texts, 51 J. LEGAL EDUC. 267, 268-69 (2001) (article discussing the im-
portance of design and white space in law textbooks).
WRITING WELL 30 (1989).

basic writing pattern of the profession. And that
pattern is inseparable from the law itself.
34

With judicial opinions as our earliest models of legal writ-
ing, its no wonder legal writing is not what it should be.
5. LAWYERS RELY ON FORM DOCUMENTS THAT ARE POORLY
WRITTEN.
If legal writing is not what it should be, then when lawyers
rely on, or copy and paste from, a previous document, they are
often relying on something that is not well written. Every lawyer
knows that relying on previous documents is common in law
practice. Lawyers refer to the use of previous documents as using
forms, although I have heard them referred to as templates
and precedents. All lawyers use forms, not just transactional
drafters. Many lawyers rely on forms for letters, court docu-
ments, and other types of nontransactional documents.
Why do lawyers use forms? To save time, to save money, to
give clients a better value, and to take advantage of previous
documents that have worked. Forms are a necessity. No lawyer
can get by in a typical practice today without them. The time and
expense that would result from writing everything from scratch
would be enormous. A busy lawyer cannot afford the necessary
time to engage in original drafting for all documents required by
a client.
35

Forms may be a necessity, but they have their problems.
[E]ven a good form followed blindly, without proper regard to the
factors of appropriateness of both style and content, can often
lead to stylistic monstrosities that utterly fail to accomplish the
desired purposes.
36
Here are four specific drawbacks of forms.
First, forms can lead to hurried, lazy writing because they
are easy to use. David Mellinkoff said that [t]hey are a quick,
cheap substitute for knowledge and independent thinking.
37
For

34. DAVID MELLINKOFF, LEGAL WRITING: SENSE AND NONSENSE 70
(1982).
35. ROBERT C. DICK, LEGAL DRAFTING 11 (2d ed. 1985).
36. SIDNEY F. PARHAM, JR., THE FUNDAMENTALS OF LEGAL WRITING 16
(1967).
(1982).

example, the form the lawyer used in an earlier document can be
quickly converted into a first draft for a new document. But just
because the lawyer can do this quickly does not mean it should be
done. Believing that a form can be quickly adapted to a new doc-
ument isnt in itself wrong, but it can lead the lawyer to compla-
cency. Complacency is a big drawback of using forms and contri-
butes to poor legal writing.
38

Second, forms are often out of date in language and style.
Professor Thomas Haggard says that [t]he best thing about
[form] books is often not the language they suggest for specific
provisions (which is usually atrocious), but rather the factual
checklists they contain.
39
Forms are well known for wordiness,
old-fashioned style, and unnecessary formality, all of which are
considered to be poor legal writing.
40

Third, forms usually have text and terms originally written
by several different writers. Forms are often a hodge podge re-
sulting in inconsistent style. Yet legal drafting is supposed to be
devoid of any writers voice,
41
so why is an inconsistent voice a
problem? The problem is more than voice: [V]erbatim inclusion
of a clause lifted from someone elses document can and will
create anomalies of style that not only offend the artistic sensibil-
ities . . . but frequently lead to confusion and ambiguity.
42

Fourth, forms can, and often do, contain unnecessary lan-
guage, irrelevant text, and extra stuff that isnt needed. In other
words, as Howard Darmstadter says, lawyers never seem to cut
language from a form; they only add: Forms tend to grow by ac-
cretion, with many persons adding paragraphs and clauses with-
out much understanding of what has gone before. The result is
frequently a form whose numerous intricacies and subtleties are

38. WAYNE SCHIESS, BETTER LEGAL WRITING: 15 TOPICS FOR ADVANCED
LEGAL WRITERS 195 (2005).
39. THOMAS R. HAGGARD, CONTRACT LAW FROM A DRAFTING PERSPECTIVE
10-11 (2003).
LEGAL WRITERS 195 (2005).
41. Joseph Kimble, How to Mangle Court Rules and Jury Instructions,
8 SCRIBES J. LEGAL WRITING 39, 52 (2002).
42. SIDNEY F. PARHAM, JR., THE FUNDAMENTALS OF LEGAL WRITING 16-
17 (1967).

invisible to all sides.
43
Besides, as the form gets longer and long-
er, the writing gets worse and worse.
Given the economic necessities of forms, and the realities of
the four drawbacks, lawyers should be much more systematic
about forms and their use. Every office of lawyers should prepare
and maintain a database of up-to-date forms. The drafting expert
Kenneth Adams has recommended such a practice,
44
but it is spo-
radic at best.
45
Besides, forms are hard to keep up with:
They continue to be published, hundreds of thou-
sands of words pouring off the printing presses
each year, swamping the legal profession with sen-
tence upon sentence for pleadings, affidavits, decla-
rations, wills, leases, conveyances, notices, bills of
lading, mortgages, trust deeds, hire-purchase
agreements, assignments, bonds, highway agree-
ments, covenants and any other documents that
one lawyer imagines another might need.
46

Forms, although useful, contribute to poor legal writing.
6. IN WRITING LEGAL ANALYSIS, MANY DIGEST THE AUTHORITIES
SUPERFICIALLY; IN DRAFTING AGREEMENTS, MANY UNDERSTAND
THE TRANSACTIONS SUPERFICIALLY.
I teach first-year legal writing, and as has already been as-
serted here, that job is mostly about teaching written legal analy-
sis. I teach practicing lawyers in continuing-legal-education se-
minars. That too focuses heavily on written legal analysis. And I
also coach individual lawyers on written legal analysis. I there-
fore see, read, and comment on large amounts of written legal
analysis much of which is weak.
Putting aside sentence-level writing concerns like grammar,
punctuation, usage, and the conventions of legal English, I see

43. HOWARD DARMSTADTER, HEREOF, THEREOF, AND EVERYWHEREOF: A
CONTRARIAN GUIDE TO LEGAL DRAFTING 28 (2002).
44. KENNETH A. ADAMS, A MANUAL OF STYLE FOR CONTRACT DRAFTING
xxix-xxxi (2d ed. 2008).
45. Id.
46. PETER BUTT & RICHARD CASTLE, MODERN LEGAL DRAFTING: A GUIDE
TO USING CLEARER LANGUAGE 13 (2d ed. 2006).

analytical, structural, and organizational problems in the written
legal analysis of some law students and lawyers. I have a theory
about a significant cause of those problems, but first let me be
specific about the problems. Here are the main analytical and
structural problems I see in the written legal analysis of law stu-
dents and lawyers:
Failure to state the conclusion, prediction, or de-
sired result up front with reasons.
47

Failure to express early on the key rule, principle,
or concept that will guide the conclusion, predic-
tion, or desired result.
48

Failure to describe even in a succinct way the
authorities that support the key rule, principle, or
concept.
49

Superficial application of the rule, principle, or
concept to the specific problem at issue: Applica-
tion that is terse, abstract, general, and shallow in-
stead of specific, thorough, targeted, and convinc-
ing.
50

47. This failure is one of the greatest failings of all legal writing, and is
widely discussed in the legal-writing literature. Experts agree that you should
state the conclusion, prediction, or desired result up front. See generally JOSEPH
KIMBLE, LIFTING THE FOG OF LEGALESE 73 (2006) (All legal writing should be
front loaded. It should start with a capsule version of the analysis. It should
practice the art of summarizing.); FREDERIC G. GALE & JOSEPH M. MOXLEY, HOW
TO WRITE THE WINNING BRIEF 107 (1992) (By establishing the main points of a
document before launching into a detailed analysis of the points, you show read-
ers what information to look for.); STEVEN D. STARK, WRITING TO WIN: THE
LEGAL WRITER 144 (1999) (All briefs should have a first-page, introductory
summary, whether the rules require one or not.); IRWIN ALTERMAN, PLAIN AND
ACCURATE STYLE IN COURT PAPERS 97 (1987) (In each part of your legal analysis,
give the bottom line first, plainly and without fanfare.).
48. See WAYNE SCHIESS, THE LEGAL MEMO: A BASIC GUIDE 38 (2008).
49. See WAYNE SCHIESS, THE LEGAL MEMO: A BASIC GUIDE 61 (2008) (on
the importance of explaining authorities).
LEGAL WRITERS 173-74 (2005) (detailing the use of specifics in analogical analy-
sis).

Failure to connect paragraphs.
51

These analytical weaknesses could be caused by laziness,
intellectual limitations, or haste. But I think the most likely
cause is the failure to understand the substantive material well.
Perhaps the writer relied too heavily on headnotes or other edi-
torial enhancements in the authorities. Perhaps the writer didnt
read the authorities carefully. Or perhaps the writer wrote in a
stream-of-consciousness style, filling up the page with a series of
loosely connected thoughts, without having taken the time to
plan or master the material and match that material to a sound
structure.
52
Naturally, the failure to understand the material
shows up as an inability to write effectively. In fact, in my expe-
rience teaching novice legal writers and tutoring young lawyers, I
can almost feel it as I read: When the description of the authori-
ties is rote, when the analysis is superficial, and when the con-
nections between ideas are weak or missing, I suspect one culprit
first: failure to understand the material.
Failure to understand can muck up written legal analysis,
but it hurts transactional drafting, too. Its not surprising that a
novice lawyer has a hard time understanding the intricacies of a
sophisticated transaction. I confess that as a novice transactional
lawyer at a large law firm, I often had little idea how the transac-
tions actually worked. I should have tried harder to gain that
understanding, and so should every novice lawyer. Bryan Garner
puts it this way: If you dont understand a form provision or

51. ANNE ENQUIST & LAUREL CURRIE OATES, JUST WRITING: GRAMMAR,
PUNCTUATION, AND STYLE FOR THE LEGAL WRITER 59 (2d ed. 2005) (Some legal
writers have a tendency to write as though others can read their minds. These
writers omit transitions because the connections between ideas are obvious to
them.). See also TERRI LECLERCQ, GUIDE TO LEGAL WRITING STYLE 15 (4th ed.
2007) (As the writer, it is your job to connect words and ideas so that your
readers dont have to do the mental work for you.); BRYAN A. GARNER, THE
ELEMENTS OF LEGAL STYLE 65 (2d ed. 2002) (Paragraphing should also show the
progression from one idea to the next.).
52. BRYAN A. GARNER, THE WINNING BRIEF: 100 TIPS FOR PERSUASIVE
BRIEFING IN TRIAL AND APPELLATE COURTS 4, 5 (2d ed. 2004) (recommending that
legal writers let the architect aspect of their writing personas do the important
work of making connections and planning the structure).

dont understand why it should be included in your document
try diligently to gain that understanding.
53

Why dont lawyers master their analytical and transaction-
al content more thoroughly? One reason may be that lawyers are
too busy.
7. THE TIME PRESSURE OF LAW PRACTICE DOESNT ALLOW ENOUGH
REVISING AND EDITING TO PRODUCE A QUALITY PRODUCT.
This is Bryan Garners idea: The modern practice of law
does not tolerate the type of revisory process necessary to produce
a polished product the well-managed law firm has more work
to do than it can complete in a given span of time.
54
Deadlines,
billable hours, and heavy workloads all prevent lawyers from tak-
ing the appropriate time to polish their writing. For example,
even if a lawyer has four weeks to write a brief, thats not
enough. The same lawyer has three other briefs, four memos,
and eight letters to write at the same time, not to mention the150
e-mail messages to read and respond to.
Revision, editing, and rewriting are what make mediocre
writing good and good writing great, but lawyers dont seem to
have enough time for them. The experts agree:
With a research memo or brief, [lawyers] want to
finish all the research first. As a result, the writing
and editing get crammed into too little time . . . .
Ideally, the schedule should force the writer to put
the draft aside for a while so that she can approach
it with a fresh eye when she edits. Some assign-
ments are too rushed for this scheduling . . . .
55

David Mellinkoff captures well the nature of the busy law
practice and its effects on legal writing:

54. BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 518 (2d
ed. 1995).
55. STEPHEN V. ARMSTRONG & TIMOTHY P. TERRELL, THINKING LIKE A
WRITER: A LAWYERS GUIDE TO EFFECTIVE WRITING AND EDITING 298 (2003).

Sometimes urgency forces precedence over every-
thing else. Get it done. Get something out. Weve
got to file. This is a rush. The writer is under
pressure to take shortcuts. This has become the
normal environment of most legal writing, and is
one of the principal reasons why so much of it is so
bad.
56

The unfortunate fact is that this kind of rushed approach
often gets the job done it is often good enough, or has to be.
One reason it gets by is that many of us have been writing this
way under a deadline and without sufficient time devoted to
polishing since college. Many young lawyers seem to have
survived writing assignments in college and law school (with the
exception of law-review writing) by turning in what were basical-
ly first drafts, lightly edited to fix glaring errors. They are un-
prepared to regard editing as a serious, laborious activity.
57
And
so we lawyers continue to churn out mediocre or poor writing; the
exigencies of modern life and law practice almost require it.
8. SOME LAWYERS HAVE A MISGUIDED SENSE OF PROFESSIONALISM,
LEADING TO A FORMAL WRITING STYLE THAT IGNORES AUDIENCE
NEEDS.
The kind of legal writing Im referring to is often called le-
galese. Definitions vary:
[L]egal jargon that has an everyday English
equivalent.
58

The type of jargon used in the legal profession . .
. .
59

(1982).
57. STEPHEN V. ARMSTRONG & TIMOTHY P. TERRELL, THINKING LIKE A
WRITER: A LAWYERS GUIDE TO EFFECTIVE WRITING AND EDITING 298 (2003).
59. DEBORAH BOUCHOUX, ASPEN HANDBOOK FOR LEGAL WRITERS 98 (2d
ed. 2009).

[L]anguage that lawyers would not use in ordi-
nary communication but for the fact that they are
lawyers.
60

But most legalese has one or more of the following traits:
Use of Latin where English would do.
61

Use of archaic words where modern words would
do.
62

Use of elevated diction (ten-dollar words) where
everyday English would do.
63

Overuse of the passive voice.
64

Overuse of nominalizations.
65

Excessive sentence length.
66

Use of insider vocabulary or jargon even when not
addressing insiders.
67

Young lawyers I forgive: As neophytes who want to be ac-
cepted in the legal establishment and are afraid to be different,
most young lawyers sink deeper into the bad writing habits they
may have learned . . . . They coin long words and pepper their

60. PETER BUTT & RICHARD CASTLE, MODERN LEGAL DRAFTING: A GUIDE
TO USING CLEARER LANGUAGE 144 (2d ed. 2006).
61. RONALD L. GOLDFARB & JAMES C. RAYMOND, CLEAR
UNDERSTANDINGS: A GUIDE TO LEGAL WRITING 6 (1982).
62. CHRISTINE MOWAT, A PLAIN LANGUAGE HANDBOOK FOR LEGAL
WRITERS 287-88 (1998).
63. CARL FELSENFELD & ALAN SIEGEL, WRITING CONTRACTS IN PLAIN
ENGLISH 154 (1981) (stating that [i]n general, given a choice between simpler
and more complex language, the lawyer-writer veers toward the more complex.
The more official the writing, the more pronounced this choice. Letters may
usually be written with the most ponderous words available.).
64. ANNE ENQUIST & LAUREL CURRIE OATES, JUST WRITING: GRAMMAR,
PUNCTUATION, AND STYLE FOR THE LEGAL WRITER 139 (2d ed. 2005).
65. ADAM FREEDMAN, THE PARTY OF THE FIRST PART: THE CURIOUS
WORLD OF LEGALESE 11 (2007).
66. RICHARD C. WYDICK, PLAIN ENGLISH FOR LAWYERS 33 (5th ed. 2005).
67. See RUDOLF FLESCH, HOW TO WRITE PLAIN ENGLISH: A BOOK FOR
LAWYERS AND CONSUMERS 38-39 (1979).

writings with foreign cant and stuffy phrases . . . .
68
And [t]hose
new to a profession are prone to use its special vocabulary at
every opportunity, to show that they belong.
69
In mastering le-
galese, which they must, young lawyers dont always know which
words and constructions are necessary in legal writing and which
are fluff.
70
Besides, theyre learning a new language, and its the
goal of the novice to master the legal language, whatever it is.
Whats more, they are often guided, or misguided, by examples or
advice from senior attorneys: Too many law students report
back from their first jobs that the clear, simple style they were
urged to use in school is not acceptable to the older lawyers for
whom they work.
71
So when young lawyers, out of a misguided
sense of professionalism, try to sound like lawyers, I forgive
them.
But when an experienced lawyer writes in a fluffy, legalis-
tic, hyper-formal style, Im unhappy. Experts should shed lega-
lese.
72
Experts should try not to sound like a lawyer. Experts
should strive to communicate, not to impress. Almost no one is
impressed by traditional legal language:
[W]e outsiders are not persuaded. We suspect that
lawyers use the old language at times because it is
conveniently available in form books, or because it
makes them sound like lawyers, or because they
are blissfully unaware of how odd it really is, or be-
cause they think it will fill us outsiders with awe
and a willingness to pay handsomely for documents
beyond our ken. We even suspect that on occasion
lawyers themselves do not understand the lan-
guage of the law . . . .
73

UNDERSTANDINGS: A GUIDE TO LEGAL WRITING 4 (1982).
69. ROBERT GUNNING, THE TECHNIQUE OF CLEAR WRITING 259 (1968).
70. See BRYAN A. GARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT
WITH EXERCISES 34 (2000).
71. RICHARD C. WYDICK, PLAIN ENGLISH FOR LAWYERS 4 (5th ed. 2005).
73. LOUISE MAILHOT & JAMES D. CARNWATH, DECISIONS, DECISIONS . . .
A HANDBOOK FOR JUDICIAL WRITING xiv (1998).

Yet some lawyers tell me they need to write in a formal, le-
galistic style so clients are intimidated. The intimidated client
needs the lawyer, Im told. Some lawyers tell me clients prefer
and expect traditional legalese.
74
The legalese is said to reassure
the client. And although no lawyer has ever confessed it to me,
some lawyers seem to take pride in sounding stuffy and formal.
I reject those positions, and am not alone in suggesting that
writing in a way that requires a client to consult a lawyer to un-
derstand the document is bad. Over forty years ago, Sydney Par-
ham said that [w]e cannot in justice to our job expect the client
to employ us to interpret our own documents nor should we re-
quire him to consult our professional brethren for this purpose.
75

The busy-ness factor contributes to the problem of false pro-
fessionalism, too. Legal writers are usually busy, and busy writ-
ers often operate on automatic pilot without much thought to the
character they are portraying in their prose. And when legal
writers are on automatic pilot, most tend to drift into more formal
prose because they have read so much of it during their educa-
tion.
76

But all lawyers can do better, not only by improving writing
skills generally, but also by thoughtfully considering the clients.
Most clients prefer and respect those who can write in everyday
English:
If the clients can read the contract more easily and
resolve contract questions themselves, doesnt that
mean fewer billable hours for the lawyer? My ex-
perience is that clients on both sides of a negotia-
tion respect the lawyers ability to express ideas
clearly. When they see good writing, they are less
likely to try to do it themselves. While most busi-
ness people can fake legalese, writing in plain
English takes practice. It takes real talent to ex-

74. See WAYNE SCHIESS, BETTER LEGAL WRITING: 15 TOPICS FOR
ADVANCED LEGAL WRITERS 128-31 (2005) (setting out and debunking the myth
that legalese attracts and retains clients).
75. SIDNEY F. PARHAM, JR., THE FUNDAMENTALS OF LEGAL WRITING 72
(1967).
76. Stephen V. Armstrong & Timothy P. Terrell, Understanding
Style in Legal Writing, PERSPECTIVES: TEACHING LEG. RES. & WRITING, Fall
2008, at 43, 45-46.

press complicated legal, technical, financial, and
commercial ideas in a straightforward way.
77

Thus, we must not write on autopilot; we must consider the
needs of our audience. We must consider how we sound to that
audience. We must break bad habits, as Thomas Murawski has
pointed out: Practice a hyper-formal, . . . legal style long enough,
and simple writing can start to sound simpleminded.
78
In fact,
whenever we sit at the keyboard, we need to decide what is the
appropriate degree of formality for that piece of writing, remem-
bering to base that decision on who our audience is, not what the
document is.
79
In short, we have to care:
Care enough to work at your craft. Become critical-
minded about words. Read the best books on writ-
ing. Pay attention to models. Keep at hand a
group of current references on grammar and usage.
Welcome good editing. Put yourself in your read-
ers shoes and resolve not to waste their time.
Above all, revere clarity and simplicity in a style
thats straightforward and lean.
80

Care enough to make your legal writing what it should be.
9. MANY LAWYERS ARE COMPLACENT, BELIEVING THEIR WRITING IS
ABOVE AVERAGE OR BETTER.
Lawyers have two common failings. One is that they do
not write well, and the other is that they think they do.
81
One
lawyer has said that he never met a lawyer who didnt think he
was a great writer; 99% of the time the lawyer is deluded.
82

77. David T. Daly, Why Bother to Write Contracts in Plain English?, 78
MICH. B.J. 850, 850-51 (1999).
78. THOMAS A MURAWSKI, WRITING READABLE REGULATIONS x (1999).
79. MICHLE M. ASPREY, PLAIN LANGUAGE FOR LAWYERS 87 (3d ed.
2003).
80. JOSEPH KIMBLE, LIFTING THE FOG OF LEGALESE 98 (2006).
81. Carl Felsenfeld, The Plain English Movement in the United States,
6 CAN. BUS. L.J. 408, 413 (1981-82).
82. THEODORE L. BLUMBERG, THE SEVEN DEADLY SINS OF LEGAL
WRITING 1 (2008).

When I say lawyers are complacent about their writing, I
hope I do not sound too critical. I was complacent about my own
writing while I was in law practice for three years and even for a
few years after I became a legal-writing teacher. I think compla-
cency about writing is a tradition in our profession. Here are at
least three reasons for it.
First, the writing-intensive nature of law practice surprises
some. For example, when I began law school, I did not under-
stand how important writing would be for my job. Once I arrived
at a law firm, all I did was research and write, and that surprised
me. Yet a journalism student, for example, understands from the
beginning that writing will be an important part of the job. Many
law students do not. They often assume, as I did, that oral skills
would be the most important.
83

Second, prior success in academics, or in writing specifical-
ly, often breeds unwarranted confidence. For example, I got good
grades in college and, to a certain extent, in law school. Many of
these grades were based on papers and written exams. I there-
fore concluded that I must be a good writer. Not so. I was an av-
erage writer. So part of the problem is that we believe that smart
people automatically write well. I later got a job at a major law
firm, where I was hired based in part on my writing. I therefore
concluded that I must be a good writer. Not so. I was still an
average writer, as I now know. So part of the problem is that job
success persuades us that we must be good writers.
Third, lawyers dont consult writing sources enough. For
three years in law practice, and for my first three years as a le-
gal-writing teacher, I owned no books on the subject of legal writ-
ing other than the textbook I used in my course. I owned no le-
gal-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. I was not alone.
In seminars I teach, I regularly ask participants what writing
guides they own or use. I get a moderate number of references to
The Elements of Style and a handful of references to Bryan Garn-
ers The Redbook. Thats usually about it; the vast majority of
lawyers does not own and never consult a writing source. Yet

83. Lisa Eichhorn, Writing in the Legal Academy: A Dangerous Sup-
plement?, 40 ARIZ. L. REV. 105, 109 (1998) (suggesting that an ancient oral tradi-
tion continues to have force in legal education).

attorneys need to consult the same dictionaries and stylebooks
that other professional writers and editors use.
84
If I were to ask
the same question of a group of journalists, every hand in the
room would go up and most would have multiple writing guides
to consult.
Thats right. We think were good. We dont take the craft
of legal writing as seriously as we should. Ask a room full of law-
yers how many consider their writing to be above average, and a
majority will raise a hand. Ask that room of lawyers what per-
centage of legal writing is above average, and most hands will go
up at about 25%. We seem to consider our own writing to be
above average but almost everyone elses as below average.
85

Ultimately, it is perhaps simply our attitude, as Bryan
Garner notes: As a whole, the profession disdains literary ac-
complishment within law . . . .
86
When Garner says literary ac-
complishment, I take him to mean high-level writing skill. But
even if we dont disdain it, we are certainly satisfied in falling
short of it. Too many take the attitude disparagingly portrayed
by Terri LeClercq: Never change your own writing style, even if
someone takes the time and has the patience to point out your
problems.
87

Perhaps it is more than not knowing how much writing law
requires, more than over-reliance on past academic success, and
more than failure to consult the best sources. Maybe its just that
were in a rut; maybe its just habit: Old hands train new ones,
old [documents] make convenient models, and old ways seem saf-
est. Precedent, important to substance, retards thinking about
style.
88
So what can we do?

UNDERSTANDINGS: A GUIDE TO LEGAL WRITING 55-56 (1982).
85. See Joseph Kimble, Lessons in Drafting from the New Federal
Rules of Civil Procedure (Part 3), 86 MICH. B.J. 44, 44 (2007) (noting that the
great disconnect is that while most transactional lawyers say that a very small
percentage of the legal drafting they see is of a genuinely high quality, almost
all of them would claim to produce high-quality documents.) (citing Bryan A.
Garner, Presidents Letter, THE SCRIVENER 1, 1 (Winter 1998)).
86. BRYAN GARNER, A DICTIONARY OF MODERN LEGAL USAGE 518 (2d ed.
1995).
87. TERRI LECLERCQ, EXPERT LEGAL WRITING 184 (1995).
88. THOMAS A. MURAWSKI, WRITING READABLE REGULATIONS x (1999).

CONCLUSIONS AND RECOMMENDATIONS
There are many causes of poor legal writing, and they arise
from several, separate institutions: colleges, law schools, the bar,
and the courts. Thus, even a dramatic change in any one or two
of those causes is unlikely to make any difference. Likewise, any
change must target so many institutions and individual lawyers
that the effort seems pointless. Still, I offer the following four
recommendations:
1. Law schools first-year legal-writing programs
should continue to focus on written legal analysis
intensely and thoroughly and should also include
mandatory instruction in legal drafting. (Fine
points of style, rhetoric, and plain language should
be left to upper-division writing courses.) Those
who teach these crucial skills should be treated like
serious professionals.
89

2. Organizations that hire new lawyers, like
courts, firms, agencies, and companies, should re-
quire that all new lawyers receive training in edit-
ing and the conventions of legal English.
90
They
could also hire editing specialists.
91

3. State bar associations should require legal-
writing training as part of the mandatory continu-
ing legal education. Many states require ethics
credit as part of continuing legal education,
92
so
why not the crucial skill of legal writing?

89. Wayne Schiess, What Plain English Really Is, 9 SCRIBES J. LEGAL
WRITING 43, 48 (2003-2004) (arguing that legal writing, legal drafting, and plain
English are legitimate fields worthy of scholarly research and study).
WRITING WELL 66 (2d ed. 2002).
91. Mark Mathewson, In-House Editors: Letting the Experts Do It, 1
SCRIBES J. LEGAL WRITING 152 (1990). See also Karen Larsen, In-House Editor,
84 MICH. B.J. 54 (2005).
92. Texas Minimum Continuing Legal Education Rules, STATE BAR
RULES, art. XII, at 6(B) (At least three (3) hours of the fifteen (15) hours shall
be devoted to legal ethics/professional responsibility subjects.).

4. Individual lawyers must take more responsibili-
ty for their own legal-writing skills and must con-
stantly seek to improve.
93
Lawyers should read a
book on writing or legal writing once a year, open
themselves up to honest critique, acquire and con-
sult the best sources on writing, and attend a con-
tinuing-legal-education course on legal writing.
94

Producing clear, effective writing is hard work, and produc-
ing clear, effective legal writing is harder still. In that way, legal
writing is like any other valuable skill: playing the piano, run-
ning a marathon, or performing heart surgery. It takes practice,
lots and lots of practice. The recommendations here aim to give
students and lawyers more chances to practice, more chances to
put in hard work. Thus, the first recommendation focuses on law
school and on taking advantage of the chance to teach more and
do more to emphasize legal-writing skills. The second recom-
mendation suggests that legal employers do more to enable law-
yers to get the crucial practice and training they need to become
proficient legal writers. The third, somewhat paternalistically,
imposes legal-writing practice and training on lawyers through
the state bar. Ultimately, though, the fourth recommendation
acknowledges we lawyers are responsible for our own legal writ-
ing. We are responsible for putting in the hard work and practice
necessary to master the skill of legal writing.

93. See Kathleen Elliott Vinson, Improving Legal Writing: A Life-Long
Learning Process and Continuing Professional Challenge, 21 TOURO L. REV. 507,
515 (2005).
94. See WAYNE SCHIESS, BETTER LEGAL WRITING: 15 TOPICS FOR
ADVANCED LEGAL WRITERS 15-22 (2005).

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