- To learn any skill, you need good models.
- In legal writing, there are special hurdles not faced by artisans in other endeavors.
The company we keep is crucial to who we are—in all sorts of ways. For example, imagine that you aspire to be a first-class figure skater, but you don’t ever see one perform, much less skate with one. If you aspire to master any challenging skill at all, your progress will suffer if you don’t learn from others who’ve already become proficient. Left to your own devices, you could stay mired in mediocrity.
When it comes to writing, there’s a community of writers that you needn’t know personally. You must simply observe what they do to make their writing so readable and effective. Some people actually teach themselves by resorting to good models. For example, when Robert Louis Stevenson decided that he wanted to learn to write—really write—he invented an exercise. He’d take a passage from a writer of acknowledged standing, he’d read it twice, and then he’d turn it over and try to replicate what he’d just seen—word for word, punctuation mark for punctuation mark. He’d fail to come very close at first, and so he’d repeat the exercise. Over time, he got better and better. And he seems to have been motivated enough to have continued that exercise for many years.
So what would that exercise have taught him? Undoubtedly he
With time, he must have found more and more instances in which his own work outshone the passage that he was trying to replicate. That is, there were times when his rewritten passage was shorter, bolder, more striking, and altogether more pleasing.
Part of what Stevenson can teach us—and most people have already figured this out—is that learning a skill begins by imitation. Hand a young girl some golf clubs, let her watch good golfers on a practice range, and soon she’ll be making a pretty good swing. Do it again and again, day after day, and people will marvel at the move she makes when striking the ball. Much learning occurs by osmosis.
And although you begin by imitating, by the time you master a skill you develop your own distinctive technique—based in part on what you’ve admired in your predecessors. That’s true of writing, painting, playing a musical instrument, or whatever the endeavor might be.
I was reminded of this truth recently while interviewing three federal judges at each level of our judicial system—Chief Justice John G. Roberts of the US Supreme Court, Chief Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals in Chicago, and Chief Judge James M. Rosenbaum of the District of Minnesota. I asked, as I usually do in my judicial interviews, “How does a law student or lawyer who wants to improve actually do it?” In their separate interviews, all three emphasized the importance of reading more attentively.
Chief Justice Roberts responded: “You develop a lot as a writer the more you read. . . . People lose a lot of writing ability when they get to law school because they tend to read a lot of stuff that isn’t well written, and they tend to stop reading other stuff that is well written because they don’t have the time. They’re focused on some badly written cases, from whenever, or some badly written statute. And they’re not reading anything good.”
The phrase “badly written cases, from whenever” stuck with me. Even today, the most heavily represented period in our casebooks is 1880 to 1920, which was the nadir of judicial writing in this country. That was the period in which opinions were most abstruse, diffuse, and verbose. The students forced to read those cases have their style polluted.
Chief Judge Easterbrook suggested remedies. He was discussing what second-year lawyers, as opposed to law students, could do to improve. His diagnosis was similar to the Chief Justice’s, and he followed it with a prescription: “Spend more time reading. And stop reading what lawyers are writing, because mostly lawyers read what other lawyers are writing . . . and that’s mostly bad. Start reading Hemingway and Faulkner. Their styles are different, but they’re both wonderful writers. Read the Saul Bellows of the world. There’s a lot of good and interesting writing out there.”
But Judge Easterbrook went further, perhaps for those who don’t have a literary bent and would prefer not to make the leap of adapting a novelist’s style to what legal writers do. He touted good modern journalism: “Start reading good magazines. Pick up a copy of The Atlantic or Commentary, where people write intelligently about important issues in short compass, using real English sentences. The magazines have good editors who edit down the pieces, but generally, they choose good writing.”
Then came his most pointed observation: “The best way to become a good legal writer is to spend more time reading good prose. And legal prose ain’t that! So read good prose. And then when you come back and start writing legal documents, see if you can write your document like a good article in The Atlantic, addressing a generalist audience. That’s how you do it: get your nose out of the lawbooks and go read some more.”
And what does an eminent trial judge say? In his off-the-cuff response, Chief Judge Rosenbaum evoked shades of Robert Louis Stevenson: “One of the ways you learn to be a painter is to study paintings. It’s not for nothing that when you go to the Louvre or the Metropolitan Museum of Art there will be art students sitting there copying. Nobody is going to mistake what they’re doing for Matisse or Picasso or Delacroix. What they’re doing is learning the techniques that the artists used.”
How does that relate to legal writers? “Language,” he said, “is the tool that we use. And learning to write takes work. When you read really well-written, beautiful prose, it leaves an impression. And that impression can matter.”
A good writing style is rewarded so automatically that you hardly notice what’s going on. You think that it’s the merits of the case or the soundness of the thought that matters, and that’s true as far as it goes. But it’s the style, the technique, that makes the thought so transparently powerful. The same thought, in shabby dress, appears much less compelling.
So read widely and attentively. My own highest recommendations for newsweeklies go to The New Yorker and The Economist. Reading through them will be a tonic for your style. And if you’ve been researching legal points and you’re preparing to write something, take a few minutes first to read a short piece in one of those magazines. Over time, your writing will benefit enormously.
To learn any skill, you need good models. For example, you can’t learn to paint well without studying the work of good painters. You can’t learn to play the piano well without watching and listening to good pianists. You can’t learn to hit a golf ball well without seeing good golfers. And you can’t learn to write well without closely observing the work of good writers. Mere observation isn’t enough, of course—copious practice is also necessary—but it’s surely a prerequisite.
In legal writing, there are special hurdles not faced by artisans in other endeavors. It’s no trouble to find out where to find good paintings, good pianists, and good golfers. No one is likely to be misled. And it’s not hard to find good writers. But in legal writing, things get tricky. If you’re looking for a model research memo, motion, brief, or contract, where do you go? If you go to just any senior lawyer, even in a major firm, and ask for an example of the last such document the lawyer prepared, odds are slim that you’d get a model worth following. More likely, you’d see a document with many blunders that expert legal writers would disapprove of.
Why? Because we’ve had bad models for a long time, and in our precedent-bound field, they tend to be perpetuated. Even our very method of legal education—using the casebook method of teaching mostly from old, badly written judicial opinions—tends to send lots of bad signals to each new generation of law students about what a legal document should look like. That’s a pervasive problem.
And then finding particular models of excellence can also be a problem. Some years ago, one of my professorial colleagues at a law school where I was teaching audited my upper-division course and saw that I showed my students examples of first-rate research memos. He also noted that I was critical of the sample memos in most first-year legal writing texts. He took me aside and said that in the first-year program at that particular law school, the legal-writing professors were carefully avoiding showing the students examples of good memos for fear that they’d slavishly copy the format. The advice to first years was: research well, think clearly, and write it up clearly. Now go do a research memo!
That’s hardly useful advice. Law students need models. They need to see what a good executive summary looks like, with a question presented and a brief answer—not the typical question presented but one that can actually be read and understood by any intelligent reader in one reading. They need to see a statement of facts that is neither too sparse nor too detailed. They need to see how the body of the memo states the law, develops the analysis, and applies the law to the facts at hand to prove the conclusion that was stated clearly on page one. And they need to see several strategies for closing well. Summer associates need the same thing.
And newly minted lawyers need to see samples of good motions and briefs. But as I say, looking in files in a law office is likely to turn up nothing but mediocrities—documents with a fair amount of credibility destroying legalese, slow windups, slow deliveries, confusing factual statements, weak analyses, and rote conclusions. I know this because I see these documents week in and week out in law firms and legal departments all across the nation.
On the transactional side, the problem is even worse. Most forms are riddled with elementary mistakes that can have serious consequences down the line: poor organization, inconsistently stated duties, insufficient headings, prodigious amounts of vague and ambiguous legalese, improper punctuation, confusing design, and so on. All these things detract from the substance of contracts and other types of legal instruments.
The problem, then, is finding good models. I’ve been aware of the problem for a long time, and I’ve tried to remedy it in my own books, especially in Legal Writing in Plain English and in The Redbook: A Manual on Legal Style, both of which contain plentiful examples that it has taken a career to collect from some of the best legal writers around the country. But let’s assume you want more examples than can be found in those two books. Where should you look? Here are my recommendations.
Excerpt reprinted with permission from Garner on Language and Writing by Bryan A. Garner. ©2014 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.