A partner at a very large law firm gave me an assignment once. It should have taken about 5 hours of research and writing and the result ought to have been a five-page memo. After I sent the five-page memo to him, he called me into his office and said: “Look, for good legal writing you have to remember just two Cs: concision and clarity…coherence. Concision, clarity, coherence. And it should be complete, obviously. So four Cs: concision, clarity, coherence, completeness… cogent, it should be cogent, as well.”
This sounds like a Monty Python sketch, but it actually happened. I’ve found that many (if not most) lawyers are terrible writers. Most are not particularly good at teaching legal writing, either.
After a month, a boatload of billables, and this one pseudo-Monty Python sketch, we had turned that five-page memo into a 90-page treatise that was too long and too complicated to be useful to the client. It was the most overwritten thing I’ve ever created and every sentence in it was caveated into meaningless. Ahem…
To the best of my recollection, and subject to further development of the factual record, all, or substantially all, assertions heretofore contained in the written product, but not to include legal conclusions not expressly stated, notwithstanding implied conclusions expressly incorporated in footnotes thereto, were made in conjunction with, and pursuant to, ongoing caveats to the effect that said statements were 1) applicable only to the limited facts set forth in the written product, 2) were subject to….
You get the point.
We’ve all been guilty of this kind of terrible writing. I have, at least. But it is bad writing and it will not help you in law school. So I’m going to paraphrase and improve on the wise words that partner attempted to convey to me many years ago:
The Three Cs of all good writing are clarity, concision, and coherence. And for legal writing, especially for law school writing, you have only to add one T to that list: Technical writing.
This means that your sentences should be easy to understand. Each sentence in a good written work should be as simple and clear as possible. Revise and simplify long sentences. Avoid run-on sentences. Take a step back and review your writing if you find yourself using a lot of commas or writing a caveat for every sentence.
Think about the sample sentence I gave you above – you should never have to write a sentence like that in law school. If you ever find yourself writing something like that, then step back and think about how to revise and simplify. Ten or even twenty clear sentences are better than one indecipherable sentence.
And avoid “legalese”. No one likes it, it’s difficult to understand, and it’s almost never necessary. So cut it out with the heretofore, theretofore, said, herein, hereinafter, hereafter, thereafter, et cetera.
A good guide is to pretend you are talking to a grandparent.
This means that both your sentences and your work as a whole should be as concise as possible. All writing is an attempt to momentarily take over somebody else’s attention, to actually commandeer some other person’s consciousness and mental real estate for a time. Respect that. Don’t overstay your welcome.
With legal writing it’s also important to strive for concision because concision requires you to stay within subject-matter boundaries. Legal writing shouldn’t leave loose ends, if possible. If you focus your writing on the simple, narrow issues before you, then you can more completely treat those issues. If you accidentally bring up irrelevant extra issues, then you’ll have to either analyze those issues or leave them as loose ends. The former takes time and words away from the relevant analysis you should be doing; the latter leaves you potentially exposed to risk of a ding on your exam score or, worse, legal malpractice!
This means that your written work as a whole has to make sense. Believe it or not, law is not the only world in which people write about complex issues and ideas. Whether you are writing about law or sports or cooking, you will eventually run into some concept that is difficult to write about in a way that makes sense. For longer form writing, this usually requires that you set the work aside for a few days and then come back to it with fresh eyes. Writing that seems clear on Monday might make zero sense on Wednesday. This should be no surprise: If you have the time, you should always review your work.
In shorter form, time constrained writing, this means first taking some time before you start writing to plan. Make sure you understand the rules you use and the arguments you make and make sure to lay them out in logical order. Second, it means slowing down, taking time to actually think about what you are writing, and making sure you are on track with your plan. And, third, it means giving your answers a quick review to see if anything is glaringly incoherent.
This is, in my opinion, the most important legal writing lesson that is not often taught in law school, and it is just this sentence: Legal writing is technical writing.
Legal writing is not poetry or literature. You might need a long, poetic pun-filled title for your law review note, sure. And you might, if appropriate, add some personality or even humor to a law school exam answer. But you almost certainly will not excel at law school exam writing or legal writing in general unless you begin with this understanding: Legal writing is technical writing.
In our profession, our format is usually IRAC. Issue, rule, application, conclusion. We identify an issue, we state the rule, we demonstrate how that rule is applied, and we reach a reasonable conclusion. We do that over and over again.
And what we do is truly step-by-step analysis in written form. Whether you are writing a memo or an exam essay, you must step the reader through each logical, analytical step from the issue all the way through the conclusion. At each point in the analysis you must show your work. Show your reasoning.
It’s never too early to start practicing the Three Cs and One T. Write clearly. Write concisely. Write coherently. And remember that this is technical writing.
Like everything in law school, it just takes practice.
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