In his baseball memoir Ball Four, former New York Yankees pitcher Jim Bouton tells a story about Yogi Berra. Berra, an all-time great, was taking batting practice with some of the other Yankees hitters. As the mortals sat and watched, Berra tried to impart some hitting wisdom. It didn’t work. Either Berra wasn’t clear or they just couldn’t understand. The lesson ended with Berra grabbing a bat and yelling, “Just watch me do it.”
In Bouton’s view, that breakdown in communication wasn’t anyone’s fault. Berra was just too good, too experienced, and therefore too instinctual. He couldn’t explain how to do what he was doing. He just did it.
If you often find yourself revising work product by recent law school graduates or summer interns, you might identify with Berra’s plight. A junior attorney gives you a draft that doesn’t work. You explain the problems and ask your inexperienced colleague to revise and resubmit it. The next draft falls short again. You repeat that process, perhaps a few times. In the end, you take the document and rewrite large portions of it yourself, as if to say, “Just watch me do it.”
We can’t avoid editing junior attorneys’ writing. It’s part of our profession. But we can make the process more effective. In the short term, of course, we want the particular brief or letter or discovery request to be the best it can be. Over the longer term, though, we want junior attorneys’ writing to improve as quickly as possible so we can spend less time editing their work and more time on the rest of our practices.
To accelerate that transition, do more than just show the junior attorney your finished product. That sort of “Just watch me do it” feedback puts too much emphasis on the result and too little emphasis on the process. It’s as if we opened a cookbook and the recipe page showed a picture of a beautifully frosted cake with only these directions: “Make this cake.”
That recipe would fail for the same reason that simply doing the rewriting fails. Both the novice chef and the novice lawyer likely understand that the final iteration is better than their own initial effort. But they haven’t learned how to achieve excellence on their own. The next time they bake a cake or write a brief, they’ll have to return to the expert for more help.
We’re always surprised and perplexed when our new hires struggle with simple writing tasks. After all, we hired them because they had good references, excelled in law school, and submitted good writing samples. How could the same person who crafted that well-structured and well-reasoned moot court brief now make so many mistakes in a draft summary judgment motion?
One possible reason: Even the best law students are novice attorneys. And novices often have difficulty transferring skills from one setting to another. Recent law school graduates have done a good bit of research and writing. They were likely pretty good at it to warrant getting hired. But the research and writing they will be doing now is different—sometimes entirely, sometimes subtly. They will likely need some time to figure out how to apply the skills they gained in law school to the new tasks before them. And they will need and benefit from some help. Real help.
Where to Start
So here’s a place to start: Provide new attorneys with general writing instructions. Adopting formal writing-related strategies at the outset of recent law graduates’ careers can help the new attorneys transfer their law school achievements into achievements that benefit not only the clients but also the firm. We want that new hire to become the experienced lawyer who supervises tomorrow’s novices.
The learning process starts right away, when the new lawyer comes on board. Whether you mandate a formal orientation program or simply show new hires to their desks, there should always be room for some writing-related instruction.
That instruction could be as simple as recommending some writing-related resources to provide new attorneys with a solid foundation. Pick a favorite style and usage guide or a trusted book on legal writing. Maybe you’ve collected bar journal articles that offer writing tips. Perhaps your organization already has an in-house style guide. If not, consider creating one; that process will be useful, not only for future hires but also for the attorneys who create it.
Consider including sample documents in your orientation materials. New attorneys crave good samples, because samples show how you want things done. And collecting samples can be fun, akin to creating a highlight reel of previous work.
Annotate and explain the samples, because providing samples comes with potential pitfalls. Samples can be limiting and, if not accompanied by proper guidance, can lead to confusion. Reviewing them, junior attorneys must distinguish among three kinds of guidance: (1) generally applicable sentence-level and structural choices, (2) the original author’s own idiosyncrasies, and (3) the original author’s strategic choices based on the specific context of the individual case.
The first category provides the most value. It can be used by the junior attorney as a model for future writing. That sort of generalizable advice can take many forms. Perhaps the sample illustrates a clear, plain-language writing style that the junior attorney can model when addressing other complicated legal issues. Or the sample might use headings to break up sections of a brief; illustrate how much space to give a brief’s introduction and conclusion as compared with its factual and analytical sections; or show something more specific, like a particularly effective way of dealing with adverse precedent or neutralizing a strong argument. Any of that is useful because it can be applied in a variety of contexts.
The other two types of guidance are a bit more slippery. Samples display some of the author’s own idiosyncrasies—style choices, word preferences, rhetorical devices, and other quirks that the author tends to use but the junior lawyer need not mimic. Those demonstrate an effective approach but not the only effective approach. To assist a junior attorney’s untrained eye, explain those aspects of the samples and provide samples from different authors effectively using different styles.
Samples also reflect specific strategic choices made in the unique context of specific filings in specific cases for specific clients that would not necessarily work in other settings. For example, the junior attorney might receive a sample brief that refers to the client, Petrochemical Conglomerate Incorporated, as “the Company.” In that instance, that choice may reflect the judgment that the client’s name might not evoke sympathy. But that shorthand naming decision may not be why that brief was selected as a sample. The junior attorney should not think that genericized client names are always preferable.
But the junior attorney can’t automatically know that and, from reading the sample, wouldn’t have any way to know that. So, from that sample, the junior attorney may learn the wrong lesson. Drafting a brief for the Little Orphans Charitable Trust, the junior attorney may unwisely choose to refer to that client as “the Trust” or, much worse, as “LOCT.”
This problem can arise in more important and complicated ways. A sample brief might present a theme that aggressively attacks the opposing party, but that strategy might be unwise against a more sympathetic opponent. A sample brief might address a counterargument by quickly brushing it aside, but that strategy might be foolish against more robust or pertinent material. A sample brief might begin with a fundamental constitutional argument, but only because that argument is the strongest, not because all briefs should start with constitutional arguments.
A shortcoming of samples is that they are, by definition, provided to junior attorneys who don’t already know how to write what we want them to write. They lack the judgment and contextual awareness to distinguish between, on the one hand, generalizable aspects of the samples that should be learned and, on the other hand, unique choices that should not be adopted. They don’t know the difference between always using plain language and sometimes starting with a constitutional argument.
Foundations Through Explanations
So samples should come with explanations—what is generalizable and why; what is unique and should not be repeated unless the specific circumstances call for it. Explanations can come through written annotations, direct conversation, or both. But the key to laying a thoughtful foundation is providing explanations.
Why is laying a thoughtful foundation for successful writing important?
For a moment, forget about law. Imagine you are learning to play music. Your teacher gives you a flute and asks you to play. You’re not very good and you struggle. You see how your teacher does it. You try to mimic your teacher’s technique. Then you practice a bit, just on your own, in preparation for your next lesson.
But at the next session, your teacher gives you a trumpet and asks you to play that instead. Your flute practice and all the work you did during the first lesson feel useless and unhelpful. You’re terrible at the trumpet. Will next time be better? Perhaps. But what if, when you arrive for your next lesson, the teacher gives you a clarinet?
That disconnected and haphazard process isn’t the most effective way to improve at playing music. Better to start with more foundational skills: notes, scales, keys, time signatures, those sorts of things. Then you could practice playing scales on the flute. And when your teacher hands you a trumpet instead, your flute practice won’t be worthless. That practice would have improved your understanding of scales more generally. And that improvement would transfer to the new instrument, making the scales on the trumpet a bit easier to understand.
The common foundation provides a connection between seemingly distinct and fragmented lessons. And it’s that connection that helps novices transfer their emerging skills from one setting to the next. By recognizing the common underlying skills, the novice can sustain learning momentum, more effectively improving with each iteration.
Receiving a similarly strong foundation in good writing is important for junior attorneys. They shouldn’t just be thrown into work with the hope that they’ll pick up writing lessons by working on disparate projects for different supervisors. Better to start with some general information that can provide a jumping-off point for comments, lessons, and improvement going forward. That general foundation is critical to facilitating the process of transferring skills from one project to the next.
It’s also helpful to provide both directive and facilitative feedback, perhaps the most critical tools for helping junior attorneys grow their writing abilities. Generally, editors provide two kinds of feedback—directive feedback, which either tells the recipient what to do or perhaps just does it; and facilitative feedback, which notes a problem but prompts the recipient to figure it out on his or her own.
For example, when a senior attorney reviews an introduction drafted by a junior attorney and then simply rewrites it, that is directive feedback. If, instead, the senior attorney points out some general problems, asks some questions, raises some issues, and recommends that the junior attorney review a sample and revise the draft, that’s facilitative feedback.
Both forms of feedback are necessary and helpful. Each has its place and value. If a junior attorney writes “summary judgement” with the e in “judgement,” better just to make the correction. Scribbling in the margin “Why did you choose that spelling? Please consider the differences in British and American English and perhaps consider revising” is unwarranted.
Directive feedback can also be useful at the start of a document, the first time you run into a repeated problem. Demonstrating a certain kind of revision and how to fix it can help the junior attorney independently make the rest of those revisions. As with sample documents, sample revisions work more effectively when we explain the first revision rather than merely make it. The reasoning behind that revision might seem clear and obvious, but it might not be clear and obvious to the junior attorney.
For more abstract, structural, stylistic, or strategic choices, facilitative feedback is far more useful to a junior attorney’s development. It can be particularly helpful when tied to the foundational material provided during orientation.
Compare these two possible revisions:
The intention of our client’s action was to help the puppy.
*No! Just say, “Our client intended to help the puppy.”
The intention of our client’s action was to help the puppy.
*See Williams on nominalizations.
The junior attorney may absorb the more generalized lesson from the first, more direct, style of feedback, but the second, facilitative approach makes future errors less likely. It suggests the junior attorney read a selection of Joseph M. Williams’s excellent writing text, Style: Lessons in Clarity and Grace, which should be on the onboarding reading list. That selection will provide a better and more effective explanation of the problem and its solution than any senior attorney could provide in the marginalia.
Perhaps most importantly, the facilitative feedback provides a helpful connection between otherwise discrete projects. By connecting the revision of this specific ineffective sentence to the improvement of a more general skill—here, avoiding nominalizations—the junior attorney more readily carries that improvement forward to the next writing project.
With facilitative feedback, junior attorneys don’t just get better at writing individual sentences about puppy intent. Instead, they learn how to write more effective sentences in any circumstance.
One common objection to that form of facilitative feedback is that it takes too long. That’s a valid concern. It does take time, especially at the beginning. But the time it takes is just one important factor. As a skilled writer, you can always rewrite the sentence—or the paragraph, or even perhaps the entire brief—in less time than it might take you to explain the general principles and prompt the junior attorney to improve the draft on his or her own.
But that extra time spent on feedback won’t be wasted. It’s an investment. The time spent training at the start of a new attorney’s career will pay off when that new attorney is more quickly and more effectively creating work product for clients. The goal isn’t to make any one document better. The goal is to make the junior attorney a more effective writer for future projects.
Providing facilitative feedback is itself a skill, one that takes a little time to learn. It’s often a struggle to craft generalizable feedback in response to a paragraph that doesn’t work. Writing “Make this paragraph better” is not particularly helpful, though that might be the first reaction that comes to mind.
Consider the situation from the junior attorneys’ perspective. Struggling to determine why a paragraph doesn’t work, how might they figure it out? If they don’t understand what the problems are, they won’t be able to avoid them in their next drafts. Time invested in the initial explanation will save time on the next revision, when the junior attorney is better able to avoid whatever problems he or she had writing the last one.
Avoid Using Track Changes
One counterintuitive way to impose a more effective feedback and revision process is to avoid using Track Changes on your word-processing program. Of course, Track Changes is convenient and wonderful for specific uses. But for junior attorneys who are experiencing the revision process as a learning tool, the convenience of Track Changes is a bug, not a feature.
A sentence revised with Track Changes is the worst kind of directive feedback—it’s directive feedback that requires no thought to accept. The junior attorney sees his or her sentence all in red with a line through it. Next to it, the junior attorney sees your sentence, also in red, which apparently is better, but for some unarticulated reason.
The junior attorney has two options: stare at those sentences and think about why your version is more effective than his or her version; or just click Accept and, in less than a second, be done with it. For a junior attorney under time pressure with multiple deadlines to meet, guess which option will be more likely chosen.
By contrast, comment bubbles or even handwritten notes on paper force the junior attorney to think a bit more about those changes. The decreased efficiency creates more time to think, to evaluate, and to understand the feedback. Most of us benefit from the act of reading a handwritten addition and then using our own judgment to incorporate it into the document, sometimes with slight modifications. Even in the short time that takes, some learning and understanding can occur.
One of the goals for the senior attorney is to facilitate that learning and understanding, though perhaps not on every writing project. Sometimes the filing deadline looms, and there’s no time for facilitative feedback. In those cases, what needs to be done must be done right away. But if you want to encourage the development of your junior attorneys, you can improve their writing by improving your feedback methods.
In the midst of all that directive and facilitative feedback, include some positive feedback. As with the other types of feedback, explain why the good parts are good. Positive feedback isn’t just for encouragement or to protect the junior attorney’s ego—it’s practical. If a junior attorney has difficulty understanding why ineffective aspects of his or her draft are ineffective, then the junior attorney will also have difficulty understanding why the effective parts are effective. Point out the successful aspects of the draft, not to make the junior attorney feel good but to encourage more of that writing in the future. Positive feedback reminds the junior attorney that he or she is capable of doing what needs to be done, and it helps the junior attorney understand what makes good writing good.
A first draft from a junior attorney is somewhat like a garden overrun with weeds. Constructively critical comments help the junior attorney weed the garden. But highlighting the good stuff helps to ensure that the junior attorney doesn’t pull up the kale with the dandelions.
Beyond feedback, take the time to familiarize new attorneys with your revision process. Regardless of what form your feedback takes, your newly hired attorneys will be receiving a lot of it. Receiving and responding to all that feedback will be a new experience, another new skill they will need to develop.
Compared with real-world practice, law school offers fewer opportunities for intense cycles of writing, feedback, revision, feedback, more revision, and more feedback, repeated until completed or the filing deadline arrives. Even with the expansion of clinical programs, externships, and upper-level writing courses, law schools still can’t match real-world practice when it comes to the intensity and expectations of the revision process.
Engaging in that process is itself a skill. Help junior attorneys learn how to do it.
As part of the orientation process, explain the revision process. How do you want them to think about your comments and recommendations? Should they accept them unquestioningly? Should they occasionally push back? Can they make revisions to your revisions? If so, how should they indicate those changes? Remind them that every revision should be considered as a potential global revision—an invitation to find similar problems elsewhere and to fix them too.
Yogi Berra wasn’t wrong to show his teammates how he hit the baseball. The difficulty for his teammates was what to do with that demonstration. If they simply tried to do what he showed them, they wouldn’t succeed half as well as he did. For those hitters to improve, Berra couldn’t just tell them how to hit, and he couldn’t just show them how he hit. Rather, he needed to show them how to work, how to practice, how to focus.
Do the same for your junior attorneys. Don’t tell them how to do it. Don’t just show them how you do it. Rather, show them how to do it for themselves. And then, in time, they too can be writing like an all-time great.