By Bryan A. Garner
Bryan A. Garner is the author of The Elements of Legal Style (Oxford), The Redbook: A Manual on Legal Style (West), Legal Writing in Plain English (Chicago), and many other books on writing and grammar. He is the editor in chief of Black’s Law Dictionary. On Twitter, he can be found at @bryanagarner.
We’ll stipulate to a loss of writing confidence among many law students. But let’s investigate whether this self-perception of deteriorating skills is an accurate one.
Once praised for their writing, some law students find that commendation has turned into condemnation. They wonder what’s happened. Are they now engaged in a fundamentally different kind of writing? Are the legal-writing professors who now criticize them simply expecting something quite different from what they’ve been trained to do? Are the legal-writing professors perhaps wrong about what constitutes good writing? Or were the students’ past teachers wrong about it? What explains the contradictory feedback?
A Case Study
I asked one student to show me a paper that had gotten bad marks from a legal-writing professor. He said he felt certain that the same piece of writing would have earned high marks from his undergraduate English professor (he had been an honors English major). What follows was the introduction to his moot-court brief. I quote it at some length to give its full flavor:
Millard Rubik’s mouth was wired shut at the outset of his outré and ultimately inequitable trial due to a broken jaw, leaving him unable, within the confines of the cold marble courtroom, to speak up for himself. Hardly could Rubik have realized that nobody else would speak up for him: he would be mute—not voluntarily taciturn, mind you, but hopelessly mum. He was of necessity counting on his attorney, the agent of our legal system and an officer of the court, to represent him as his able mouthpiece, but Rubik’s counselor at law made a series of devastating errors, ranging from an ignominious failure to interview key eyewitnesses—those who actually witnessed the events that gave rise to the very criminal charges leveled against Rubik by ill-informed prosecutors—to failing to follow proper protocols for obtaining crucially important defense testimony from federal agents. He was counting on the State, through its prosecutory agents, to meet its constitutional obligations of providing a fair trial, but the State most unprepossessingly refused to produce exonerative evidence. He was counting, indeed, on the trial judge, entrusted to preside at what would become a travesty of justice, to protect Rubik’s constitutional right to a jury trial, which Rubik never waived nor abrogated, but instead the trial judge (remember, the sole safeguard now for the tongueless Rubik!) allowed Rubik to unknowingly waive this right while under the influence of prescription-strength pain medication—so necessary to the amelioration of Rubik’s excruciation. Finally, at the conclusion of this woefully unconstitutional trial, if it can be called a trial, Rubik could not have realized that all the agents of our legal system, supposedly the glory of Occidental Civilization, would condemn him to spend the rest of his life behind cruelly erected bars—a prisoner to a sentencing statute for which Rubik is ineligible. Alas, poor Rubik!
There are several serious problems here, the misuse of due to in the first sentence being the least of them. It is short on facts and long on impressionistic characterizations; it is embarrassingly verbose and flowery (for example, calling a lawyer not just a lawyer, but the agent of our legal system and an officer of the court . . . an able mouthpiece . . . counselor at law); it has a hyperbolic tone; and the allusion to Shakespeare’s Hamlet (“Alas, poor Yorick!” Hamlet shouts in the graveyard scene) does not fit here, apart from the coincidence of the client’s rhyming name. Worst of all is the obscure reference to a “sentencing statute for which Rubik is ineligible”—which makes no sense to a reader unfamiliar with the case.
This young man had also brought along his senior thesis, for which he’d gotten an A as a prelaw student. He had written, paradoxically enough, on the decline of legal rhetoric. The title was “Masters of the Pen? The Edifice of Lawyerdom as a Crumbling Ruin, or at Least a Seriously Chipped One, in the Marble Palace of Rhetoric.” It began:
Lawyerdom collectively, allegedly masters of the quill, have more trouble, it seems, than others who dip their scribal implements into the inkpot. While legal principles have stood the test of time, from time immemorial for the most part, clearly articulating them has not. Perhaps the dark, black, menacing ink of one word is encroaching on the territory of it’s [sic] neighbor, or that perhaps the ink is fading altogether on the acidic, deteriorating, decayed and further decadent paper on which it originally appeared. But how, perchance, to solve this irresolute problem? Like Spanish explorers we embark on a boundless journey over the ocean of legal writing to discover a brave new world (shades of Huxley a la Shakespeare) upon which we can establish our new foundational grammar, with it’s [sic] idiosyncratic techniques of style. Lest we forget, our roots remain in the tongue which sprang from the sceptered isle of England, so we have the linguistic tools at our very fingertips. We needs must merely reach for them. Bon voyage, one might say to the barristerial aspirant!
On the evidence presented here, the undergrad professor was wrong. This isn’t good writing. It’s essentially empty and confused. The passage suffers from roundabout wordings (for example, pens become scribal implements to be dipped into the inkpot, and the English language becomes the tongue which sprang from the sceptered isle of England); two instances of the contraction it’s (properly short for it is) being misused for the possessive its; flawed sentence structure (or that perhaps in the third sentence is erroneous and makes no sense); broad unsupported statements, such as the one in the opening sentence; vague ideas with no clear referents (the territory of its neighbor); misused words (irresolute, very likely decadent, and idiosyncratic [which refers to an individual quirk, not that of a whole field of study]); careless ambiguity (clearly might mean either “in a clear manner” or “obviously”); illogic (why is black ink “menacing”?); irrelevant allusions (Spanish explorers, brave new world [used originally by Shakespeare and later Aldous Huxley], and Shakespeare’s phrase sceptered isle); and an absence of real ideas. It all ends with an odd exclamation that simply cannot be appropriate to any thesis (which, of course, has yet to be stated because, seemingly, it does not exist).
It boggles the mind that such writing could be thought good—except perhaps by a reader so jaded by rampant illiteracy that encountering a piece of writing with plausibly formed English sentences, containing a smattering of pseudosophisticated vocabulary, makes it a relief to find someone with at least pretensions of competence.
The passage is so fundamentally flawed that it’s useless to try rewriting it. And it was the opening paragraph of the student’s thesis: whenever an opener is poor, there’s little chance that the rest of the writing is any different. One justifiably doubts that the writer even had a real point worth developing.
Of course, this case study is itself idiosyncratic. Few students have quite the effusive and emotive style here illustrated. But I have seen it before in others. It’s one manifestation among many of undisciplined writing.
What Actually Happens to Your Writing
Writing specialists have long known that when you’re thrown into a new discipline, your writing skills tend to backslide. You’re trying to master an unfamiliar vocabulary and analytical approach. The ideas are complex. If you write convoluted sentences, your style will become markedly worse. Even if you try to keep it simple, your style is inevitably going to get a little worse.
So the self-perception of deteriorating skill is probably correct—through no fault of law-school instruction. But the good news is that the deterioration should be quite temporary if you’re mastering the ideas. Handling them will soon come much more naturally.
What is also probably true is that many students, perhaps including you, have been coddled and overpraised about their writing. These students have gained a false confidence about their ability. They probably suffered from exaggerated self-assessment through grade inflation over the years, made too much of the kudos received for their flawed early efforts at description and exposition, and never developed skill in critical thinking. Less negatively, you might say that their teachers wanted spontaneity, personal reactions, and bold originality. They wanted expressive writing about the students’ feelings, impressions, personality, and experiences.
But most legal writing is a species of persuasive writing. It demands close attention to factual details that matter; a winnowing out of details that don’t matter; a reliance on concrete facts coupled with a disavowal of breezy generalizations and characterizations; a building up of facts into step-by-step arguments from which conclusions naturally follow; the marshaling of reasons that will earn the respect even of an opposing audience; a dialectical approach in which countervailing facts and counterarguments are carefully disarmed; a defense not of the first positions you might take, but of the best ones; and, at least in your early development as a legal writer, a stripped-down style that contains not a whiff of ornate embellishment.
And when you look back on it, that style is no different from what your undergraduate English textbooks counseled about good persuasive writing.
So here’s my thesis, my generalization—not breezy, I trust, but earned through the preceding argument: Although law students may have gotten a little worse as writers, the reality is that many who think they’ve lost skills they once possessed in fact never really had them at all. But please don’t despair if you’re in this group: you’ll find that your skills will improve with practice. Everyone, everyone, needs lots of practice.
Vol. 41 No. 9