Succeeding in Legal Writing
Legal writing might differ from other writing that you’ve done.
It’s not about you.
In other situations, you may have been asked to write creatively, expressively, and expansively—to explore an idea and let your mind range. The writing may have served as a record of a mind at work, a personality shining forth, or a narration of your unique experiences.
Those goals for writing have their purposes and their places and should not be denigrated. Different situations call for different kinds of writing.
But in legal writing, the writer’s personality, feelings, and uniqueness are not very important. What matters are the client's purposes, the reader’s needs, the context, the facts, the law, and the expectations of a particular genre. Legal writing of the kind that you will practice in this class is intended to be precise, methodical, and practical. It is supposed to tackle a problem facing a client and provide clear support for everything it asserts. The number-one motivation for writing is to help the client.
But take heart: this does not mean that legal writing has to be dull and formulaic. Legal writers are expected to make effective choices about clarity, particular shades of meaning, or rhetorical punch. Effective legal writing is a pleasure to read because the adept writer can balance purpose, analysis, communication, argumentation, use of legal authorities, genre knowledge, voice, and tone.
No mimicking a thesaurus, no padding
Using stuffy, elliptical, airy, elevated diction is not effective, though of course legal writing requires writers to use specialized terms from time to time. Specialized terms are not, by themselves, "jargon."
Legal writers have to connect the dots, anticipate the reader’s needs, and build complete communication that doesn’t have holes or omissions. But “padding" is out. Effective legal writing balances completeness and concision. Every syllable has to earn its keep. Sweat the details.
No suspense
Suspense may be great in fiction writing, but the rule in legal writing is to tell the reader where you are going or what you are asking for right away.
Readers of legal writing want to first know where you are taking them before they agree to go on the journey with you.
Remember that legal writing exists to get things done; those things are more likely to get done if you orient the reader right away so that they have a mental map of the writing as it unfolds for them in reading it.
The features of effective legal writing
As explained by legal writing professors Miriam E. Felsenburg and Laura P. Graham, effective legal writing results from how the writer manages three sets of expectations:
Content
Structure
Appearance
Effective Content
Felsenburg and Graham explain that effective content means that the legal writing provides:
(1) a concise, precise statement of the issue (the legal question being addressed); (2) a clear, precise, correct explanation of the rules of law that govern the resolution of the issue; (3) a thorough, well-reasoned, concise analysis of how the rules apply (or, in the case of a persuasive document, how the rules should apply) to the facts of the case; and (4) a short, helpful conclusion as to how the legal question will likely be, or should be, resolved.
Put another way, effective content in legal writing
zeroes in on what is at stake,
is clear on what the applicable law is,
explains methodically how the law applies to the facts, and
gives the reader the information that they need to make a decision in light of the fact and the law.
Effective Structure
Legal writing that uses structure well presents all of the content “in a logical order” and gives the reader an experience where “the writer takes pains to transition clearly and smoothly from one element to the next.” Effective legal writers imagine what a reader will need so that they can follow the train of ideas and arguments from one sentence or paragraph to another.
Effective Appearance
Felsenburg and Graham note that readers of legal writing require
(1) that the document will conform to the required format, if one is prescribed; (2) that it will contain adequate, correct legal citations; and (3) that it will be free from grammatical, spelling, and typographical errors.
You can see that the features of effective legal writing are similar to the features of any sort of analytical or argumentative writing done in a formal context. So you do have some experiences that you can use in the new situations of legal writing. You might also have other experiences that served you well in other writing situations but are less helpful in the specific contexts of legal writing.
Thus, learning legal writing is a lot like learning any other skill: you build on transferable experiences and learn new ways of thinking and doing.
Tip: Dedicate time to early drafting and getting feedback from class processes
You need to allow plenty of time to work and rework a legal writing text before it’s due. As Brian Larson, a legal writing professor, explains:
Every year, thousands [of students] admit . . . that they did not believe their professors at the beginning of [the class] when they said, “You will need to spend a long time writing, re-writing, editing, revising, and proofreading your legal writing—far more than you imagine."… You simply cannot succeed in legal communication by doing it at the last minute.
Larson was writing for beginning law students, but his comments are equally applicable here in the undergraduate context. Waiting to write until just before a submission was due and pulling an all-nighter may have worked for you in the past.
But the defer-binge-submit method absolutely will not work in this course. The course is set up to allow you to build your understanding and iterate your writing little by little, but that requires a lot of input from you in terms of active participation, early drafting, asking questions, etc.
Turning in a submission that is basically an unedited first draft is a likely to result in your receiving a 0. You can, of course, take advantage of the course’s “do-over” revision policy, but why not revise from a position of strength rather than one of triage and starting over?
Tip: Ask Questions and Seek Help Continually
Nobody was born knowing how to do legal writing: not me, not you, not the most accomplished lawyers or judges you can think of. But you can learn, just as they all did and just as hundreds of previous students in this class have done.
One of the best strategies to learn legal writing is to ask questions continually. Confusion always precedes learning. Indeed, it must precede learning. So confusion is good; it means that some learning might happen soon. Don’t hide from it; identify it and bring it to the surface.
There is no limit to the type and number of questions you can ask. There is no limit to the type and number of confusions you can identify throughout the semester. I will ask you to ask me questions and to identify confusions, but get used to raising your hand, consulting with me in class workshops, coming to visiting hours, emailing, etc. Ask, ask, ask. Students who ask questions in this course on their own initiative tend to outperform their peers by a significant margin.
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