One of my students wrote this insightful essay:

A Culture of Merely Adequate

I realize that merely adequate legal writing is disfavored among legal writing professionals, and that I should strive throughout my career develop my legal writing skills. However, continued development after law school requires not only a personal, proactive effort but also, and more importantly, a professional atmosphere that promotes legal writing development. While law firms may give “lip service” to continued development of legal writing skills, it has been my experience that partners are more concerned with meeting deadlines and providing writing critiques that shape an associate’s writing style to the partner’s style. Through this deadline-driven, partner-controlled culture, I feel that an associates striving to “make partner” have little incentive (or time) to proactively improve their legal writing skills beyond partner approval and meeting a deadline. The result of this culture, however, is limited personal development and an endless cycle of merely adequate legal writing.

I agree that “little incentive” may be a short-sighted, sophomoric statement. The obvious rebuttal to this statement might be, “Wouldn’t proactively improving your overall writing skills ultimately lead to becoming a better attorney and thus culminate in partner approval?” Maybe so, but answering that question requires further dissection of both legal writing and the legal culture that perpetuates merely adequate writing.

So how does the legal profession focus on writing skills? A primary focus of legal writing is presenting legal precedent that proves or disproves an argument. To do that, you must do legal research first. Legal research is an arduous task that requires a skill set separate from legal writing, although it ultimately shapes the arguments in an attorney’s final written work product. Before any writing actually occurs on a memorandum, motion, or brief, significant time is spent researching treatises and precedent to find the “best” legal argument. From my own experience, a research task may be assigned with the expectation of both a memorandum and a motion based on that memorandum--within a week. Finding the "best" answer is often not possible or time efficient given the looming deadline. Thus, there exists a constant time conflict between finding the “best” legal argument and actually producing written work product by the prescribed deadline.

This time conflict that results in “short-cuts” and form practice that ultimately impact a second focus of legal writing--persuasiveness. I can’t count the times I’ve heard, “What does the case law say?” followed by, “How does that help our case?” leading immediately into, “When can you have this to me?” In order to meet deadlines and keep a partner happy, associates often pull out an old memorandum or motion written by the assigning partner to use as a framework in constructing the new document. Although this practice may be frowned upon from an academic standpoint, it is actually advocated by peer associates within a firm. The result, however, is that the final written work product “borrows” the persuasive style of the assigning attorney, which in itself was probably “borrowed” from another attorney’s style. Final written work product may contain only hints of its author’s persuasive writing skills.

It is the constant time conflicts and the endless cycle of form practice that perpetuate the cycle of merely adequate written work product in the legal profession. While I firmly believe that all attorneys desire to improve their legal writing skills, I have yet to see the practical implementation of legal writing development through “practice, critique, and study” in the practicing legal culture. Incoming associates are saddled with billable-hour requirements and docket deadlines immediately upon entry into the legal profession. The recruiter’s representations of the firm’s commitment to associate development are lost and hollow with respect to legal writing development in the face of these deadlines and partners’ expectations. Practice is limited to associate development milestones tracked through  successful completion of tasks. Critique is administered when you make a mistake. And study is focused on the ever-changing legal precedent in your practice area.

Firms lack little incentive to change their culture and implement effective legal writing development programs--this might adversely affect their ever-important “prestige” or sacrifice the almighty billable-hour. Thus, merely adequate legal writing remains the course. I can adopt altruistic notions that I will be the “different” incoming associate who will set my own course for continued legal writing development. Yet family responsibilities and job security will likely produce an alternate result--assimilation into the ranks of the adequate. Changing this course must instead be initiated in a top-down manner beginning with professional organizations.

One top-down change could be to alter the framework of CLE requirements. Most states require at least one hour--and often more--of ethics training per year under their CLE guidelines. Why not mandate at least one hour for writing development? Seminars in modern contract, license, or transactional drafting could be one method for meeting this requirement. Submitting a 250-word client letter for critique could be another. Regardless of the method, the legal profession itself must initiate this cultural change toward continued legal writing development and break the course of merely adequate legal writing.