What Supervisors Say and What They Really Mean
By Ross Guberman
Ross Guberman is the president of Legal Writing Pro and conducts writing programs for law firms, governmental agencies, and bar associations. He can be contacted at ross@legalwritingpro.com.
As a lawyer, you want to believe that your writing is as above average as the children of Garrison Keillor’s Lake Wobegon. So it can be a shock to hear a supervisor gripe that a draft is “unclear” or “unpersuasive”—generalities so frustrating that they’re all too easy to ignore. If you’re smart, though, you’ll find ways
to translate this mushy partner-speak into a hard-core writing battle plan.
Let’s tick off the most common criticisms and then consider what you can do to avoid them.
1. “You need to be more concise.” All lawyers endorse this advice in theory, but few do much about it in practice. Cutting just doesn’t seem worth the time: “Are twelve pages really so much better than fourteen?”
Such thinking is as dangerous as it is tempting. The point isn’t to shorten for shortening’s sake: a two-paragraph e-mail can be wordier than a 40-page memo. What matters is your bang-per-buck-per-line-of-text: If you gut every needless word and phrase, your prose will gain that rare tight, light quality that grabs the reader’s attention from the first lines of your draft.
Action plan: When editing, don’t just “look for things to cut” in the abstract. Instead, trim at least one word from every sentence.
2. “You need to write more clearly.” Great legal writers learn to abandon their worst law-school writing traits—intellectualizing, pontificating, navel-gazing—and adopt the style of a talented journalist who writes for a smart but impatient audience. That’s the quality associates sense when they tell me that certain partners have a great “style” or “voice” even when writing about dull or complex issues.
Yet when those associates face their own computer screens, they forget what they admire in their bosses’ writing. A morbid fear of “dumbing things down” trumps any fear of clumsy, convoluted prose. That’s backwards: As one judge put it, “If neither you nor anyone you know would ever utter a sentence like the one you have written, head back to the drawing board.”
Action plan: The popular “Would a twelve-year-old understand it?” test goes too far. But you should read your draft aloud and recast anything you wouldn’t say in a meeting with a colleague or client.
3. “You need to be more persuasive.” For many lawyers, persuasive writing has two ingredients. First, load your draft with trite, self-serving rhetoric (“The Plaintiff Is Egregiously Wrong Beyond Any Shred of Legal or Factual Doubt”). Second, for each authority, summarize as many facts as you can and copy as much of the original language as possible.
Here’s the problem: Name-calling and copying require no skill. If that’s all it took to be persuasive, we’d all be equally wonderful writers.
So what distinguishes the prose of the nation’s top advocates? Here’s a thought: The best writers rarely discuss a fact, case, or statute for its own sake. Instead, what they write reflects nothing less—or more—than how the authority proves that their client or analysis is right.
Action plan: List every authority you want to cite. Don’t proclaim that the authority is “relevant,” “instructive,” or “distinguishable.” And don’t allow yourself to summarize the facts or to copy a single word. Instead, write whatever you need to prove why the authority supports a point you want the reader to endorse.
4. “Your writing doesn’t flow.” According to Fred Rodell, once called “the bad boy of American legal academia,” there are two things wrong with legal writing: its style and its content. To those two enduring challenges, let me add a third: because the sentences in our paragraphs often stem from different sources, choppy prose is almost guaranteed.
That’s the main reason many of us are criticized for lack of “flow” in our writing.
Such a complaint can have an irritating I-know-it-when-I-see-it feel. Yet while “flow” may be hard to define in a novel or a poem, it’s easier to spot in a lawyer’s letter or brief. In documents such as those, well-chosen transition words and phrases—about one per sentence—should be your weapon of choice.
Action plan: The most abrupt breaks in lawyers’ prose occur between paragraphs. Use something from the end of each paragraph—a word, a phrase, a thought—as a link to the beginning of the next.
So there you have it. Is writing better easy? No. But are the solutions more science than art? Yes. Apply this four-step action plan to your next project, and you might get less red ink and even see a crack of a smile.
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