A student's comments on legal writing
One of my students wrote this entertaining essay:
I, like many of my peers, have always fancied myself a strong writer. It was not until recently that I was able to see how very wrong I have been. My first-year legal writing course showed me my stubborn side, and my inability to follow instructions. I’m a selfish writer. I began writing at a young age, as a way to vent emotion. I write because it feels good to write, and I have never really cared what other people think. But I’ve always kind of assumed that I was good at it. I didn’t know until recently that my shortcomings have been masked by good grades in all of my writing classes and near universal praise from friends and family.
In retrospect, I’ve never been good at writing outside of my comfort zone. If a teacher assigned something I wasn’t interested in, I would find a creative way to twist the topic into something that I did want to write about. In undergrad I took a class called “rhetoric of the blues,” and we were supposed to attend a blues show and then write a review of the show and a paper about themes common in blues music. I could have easily found a blues show to attend, but instead I saw a rock band. Then I wrote about the influence of blues upon other genres of music, this band in particular, and how the themes within blues music have made their way into other modern forms of American and British rock music. I completely disregarded the teacher’s instructions. It was actually pretty disrespectful because part of this professor’s goal was, I think, to get young people to appreciate actual blues musicians and support their music in the Austin scene. I got an A+ on the paper and some warm praise for my creativity. I got away with this behavior throughout college. I always bet that if I entertained the professor by standing out from the rest of the stack of papers, I would be rewarded for my effort. I was pretty much always right.
But now, I can’t twist the topic presented to me in order to make it suit my own interests. If a legal writing professor or employer asks a specific question, I must answer that precise question. This is the main difference that I see in legal writing, as opposed to any other writing I have ever tried. Legal writing is about precision, and there is no room for BS. This is why legal writing is in its own category. The goals are different from other writing. The purpose isn’t to entertain me or anyone else, and it isn’t merely to inform; the purpose of legal writing is to solve problems and answer specific questions.
With creative writing, I just start writing and see where I end up; later, I go back and pick out the good stuff and discard the rest. But that approach wasn’t right for legal writing assignments. I wanted to present a tight, concise, pretty package--but I always felt like I was spinning my wheels. I wanted a clean conclusion and a black-and-white answer to the question presented. But an easy answer is almost never going to be possible (or even desired) when writing for a law class or clerkship assignment. And my brain doesn’t know how to deal with that, so I’m left feeling just like a hamster spinning its wheel.
Last spring I began working on the research for my final legal writing memo the day we got the assignment, but I never felt myself making any progress. I might have been able to pull off the writing if I had been any good at the research. But alas, I was not. So instead I went off on the most glorious tangent about laches. I won’t tell you how many pages I spent on this tangent; it’s embarrassing. But I will tell you that the frustration of my professor was communicated to me on the feedback report via multiple exclamation points. It turns out that laches was something that you could have mentioned, but only in passing. It was not meant to be the meat and potatoes of your final paper. In retrospect, my professor practically led me to the proverbial water, but she could not make me drink.
In my defense, I have done some strong writing on the job. But in both of my jobs before law school, I was required to put my own spin on things, and I controlled the format. The writing I was required to do was not challenging for me, and it certainly didn’t require the type of research that a legal research and writing paper demands. The writing on those jobs didn’t teach me to work within someone else’s framework.
I’m not reveling in my bad behavior; I’m just trying to diagnose myself so I can get better. Developing my legal writing is important to me. Before law school, I worked with an attorney who was able to break down a massive piece of legislation (500 pages I think) into what we called the “Operational Overview” document. It was similar to the section-by-section analyses that the House Research Organization creates, but it was a lot better. It was sophisticated because it captured the far-reaching effects of the bill. But it was simple enough that we were able to provide it to all the employees who attended our statewide industry conference (including executive assistants, technicians, attorneys, public relations executives, etc. etc.). It answered the right questions, but was readable to anyone--even people who knew nothing about our industry. And years after the fact, people from all over the country would call me asking for a copy because similar legislation was percolating in their state and they’d heard we had this great document that explained it all.
That’s the kind of writing that I aspire to, and part of what motivated me to come to UT-Law in the first place.
I, like many of my peers, have always fancied myself a strong writer. It was not until recently that I was able to see how very wrong I have been. My first-year legal writing course showed me my stubborn side, and my inability to follow instructions. I’m a selfish writer. I began writing at a young age, as a way to vent emotion. I write because it feels good to write, and I have never really cared what other people think. But I’ve always kind of assumed that I was good at it. I didn’t know until recently that my shortcomings have been masked by good grades in all of my writing classes and near universal praise from friends and family.
In retrospect, I’ve never been good at writing outside of my comfort zone. If a teacher assigned something I wasn’t interested in, I would find a creative way to twist the topic into something that I did want to write about. In undergrad I took a class called “rhetoric of the blues,” and we were supposed to attend a blues show and then write a review of the show and a paper about themes common in blues music. I could have easily found a blues show to attend, but instead I saw a rock band. Then I wrote about the influence of blues upon other genres of music, this band in particular, and how the themes within blues music have made their way into other modern forms of American and British rock music. I completely disregarded the teacher’s instructions. It was actually pretty disrespectful because part of this professor’s goal was, I think, to get young people to appreciate actual blues musicians and support their music in the Austin scene. I got an A+ on the paper and some warm praise for my creativity. I got away with this behavior throughout college. I always bet that if I entertained the professor by standing out from the rest of the stack of papers, I would be rewarded for my effort. I was pretty much always right.
But now, I can’t twist the topic presented to me in order to make it suit my own interests. If a legal writing professor or employer asks a specific question, I must answer that precise question. This is the main difference that I see in legal writing, as opposed to any other writing I have ever tried. Legal writing is about precision, and there is no room for BS. This is why legal writing is in its own category. The goals are different from other writing. The purpose isn’t to entertain me or anyone else, and it isn’t merely to inform; the purpose of legal writing is to solve problems and answer specific questions.
With creative writing, I just start writing and see where I end up; later, I go back and pick out the good stuff and discard the rest. But that approach wasn’t right for legal writing assignments. I wanted to present a tight, concise, pretty package--but I always felt like I was spinning my wheels. I wanted a clean conclusion and a black-and-white answer to the question presented. But an easy answer is almost never going to be possible (or even desired) when writing for a law class or clerkship assignment. And my brain doesn’t know how to deal with that, so I’m left feeling just like a hamster spinning its wheel.
Last spring I began working on the research for my final legal writing memo the day we got the assignment, but I never felt myself making any progress. I might have been able to pull off the writing if I had been any good at the research. But alas, I was not. So instead I went off on the most glorious tangent about laches. I won’t tell you how many pages I spent on this tangent; it’s embarrassing. But I will tell you that the frustration of my professor was communicated to me on the feedback report via multiple exclamation points. It turns out that laches was something that you could have mentioned, but only in passing. It was not meant to be the meat and potatoes of your final paper. In retrospect, my professor practically led me to the proverbial water, but she could not make me drink.
In my defense, I have done some strong writing on the job. But in both of my jobs before law school, I was required to put my own spin on things, and I controlled the format. The writing I was required to do was not challenging for me, and it certainly didn’t require the type of research that a legal research and writing paper demands. The writing on those jobs didn’t teach me to work within someone else’s framework.
I’m not reveling in my bad behavior; I’m just trying to diagnose myself so I can get better. Developing my legal writing is important to me. Before law school, I worked with an attorney who was able to break down a massive piece of legislation (500 pages I think) into what we called the “Operational Overview” document. It was similar to the section-by-section analyses that the House Research Organization creates, but it was a lot better. It was sophisticated because it captured the far-reaching effects of the bill. But it was simple enough that we were able to provide it to all the employees who attended our statewide industry conference (including executive assistants, technicians, attorneys, public relations executives, etc. etc.). It answered the right questions, but was readable to anyone--even people who knew nothing about our industry. And years after the fact, people from all over the country would call me asking for a copy because similar legislation was percolating in their state and they’d heard we had this great document that explained it all.
That’s the kind of writing that I aspire to, and part of what motivated me to come to UT-Law in the first place.
At least your legal writing professor tried to teach you something. Mine was one of the most worthless people that I have ever met. All he talked about was how the Michigan Supreme Court stopped and angels descended from heaven when he entered.
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I think the problem that this student has is about research and not writing. There is a structure to legal writing, for certain. But I find that poor researchers are poor or troubled writers because, lacking the proper research skills, they don't know what to write about. In non-technical writing (and legal writing is, at heart, just another genre of technical writing), an author can often overcome that problem by the use of pure creativity. Don't want to write about a blues group? Fine. Write about a rock band and find a creative way to associate it with blues music. But if you try to do the "creative spin" thing in legal writing, because you don't have the basic knowledge that only good research can provide, you end up with multiple page examinations of laches.
Improve your research to the point that you have an overabundance of good things to include, and the problem corrects itself.
Wayne says:
Yes, and I would add that even if the novice lawyer has found a good set of authorities, failing to fully read and understand those authorities can cause mediocre writing.
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