Robert H. Miller, Law School Confidential: A Complete Guide to the Law School Experience by Students, for Students 29-30 (2000).
It’s been said before, but it bears repeating. Words are the lawyer’s tools, and writing is the lawyer’s craft. If you don’t like to write, and if you’re not fully committed to becoming a master legal wordsmith, you’re in for a miserable three years, and an even worse career. At a minimum, all lawyers draft letters to each other and to their clients. Corporate lawyers spend a lot of their time drafting or amending contracts and other agreements. Litigators, however, can spend weeks on end crafting motions and memoranda of law to various courts.
Given the importance of writing in legal practice, you’ll have a first-year class that will teach you the finer points of legal research (where to find cases, statutes, legislative history, and the like in books and online), and writing (everything from how lawyers write, to proper legal citation form). You’ll do a lot of writing in this class, encompassing everything from an opinion letter to a client to a full-blown appellate brief to the United States Supreme Court. Your instructor will dismantle your current writing style, and hopefully, turn you into an economic, laser-sharp legal tactician. The conversion will likely be rough on you, because legal writing emphasizes precision. Every word must be chosen carefully to convey the desired meaning – nothing more, and nothing less. There is no room for flowery prose. Many students find this style arduous and frustrating. Further, the fact that the legal writing class is graded pass-fail at most law schools communicates a terrible message – encouraging student to relegate legal writing to "if I have time" status. Don’t make a critical mistake by taking this class lightly, because after graduation, your legal research and writing skills will define your aptitude as a lawyer more than anything else. How much real estate law you remember, however, may never matter to you again.
You’ll utilize your legal writing skills at almost every turn in law school – in writing essay exams, in the law review writing competition, in moot court competitions, in writing a law journal "Note" or "Comment," and in any externship you may pursue. Every employer will require a writing sample as a prerequisite for a call-back interview, and no judge will grant you a clerkship without first evaluating your ability to write.
I trust that you get the message here. If you don’t like to write precisely, and don’t think you can warm up to it, you might want to consider a different line of work.
Selected Job Listings, in Louisiana Bar Journal, April/May 2005.
These job postings illustrate the point made in the previous piece from Law School Confidential. I just grabbed the most recent copy of the Louisiana Bar Journal (April/May 2005) as a random selection of job postings. Notice that these postings represent the gamut of practice areas (insurance defense, oil and gas, corporate law, etc.) and call for excellent writing skills in both transactional attorneys and litigators alike.
Gerald Lebovits, On Terra Firma With English, N.Y. St. B.J., Sept. 2001, at 64.
Remember the first hour of your first-year legal-writing course in law school? You learned that legalese is a pejorative term and that good legal writers prefer English to romance languages. Then you spent the rest of law school reading cases that contradicted that good advice.
Those who distrust their writing teacher's advice not to use legalese should read Benson and Kessler's authoritative 1987 study. It turns out that nonlawyers, practicing lawyers, law professors, and judges believe that those who compose legalese are lousy lawyers - the more the legalese, the lousier the lawyer. Benson & Kessler also proved the reverse. Everyone believes that the less the lawyer uses legalese, the better the lawyer is.
Legalese - lawyers' jargon - is turgid, annoying, adds nothing of substance, gives a false sense of precision, and obscures gaps in analysis. From Judge Rosenblatt: "There is still a lot of 'legalese' in current usage, but the best writers have come to regard it as pretentious or bad writing." Legalese can be eliminated: "When legalese threatens to strangle your thought process, pretend you're saying it to a friend. Then write it down. Then clean it up."
Think of it this way, among other things. If you go on a date and your date asks you what you do for a living, would you answer, "I am, inter alia, a J.D."? If you would, plan to spend the next Saturday night in a law library - by yourself - studying texts on plain English for lawyers. If you somehow secure a second date, the only tokens of affection your date will expect from you will be an English-Latin/Latin-English dictionary and plenty of caffeinated coffee to help your date stay awake during your effervescent conversation. Instead of an affectionate "hello," your date will expect you to say "To All To Whom These Presents May Come, Greetings."
Justice Smith of the Arkansas Supreme Court said this in his classic lecture on opinion writing: "I absolutely and unconditionally guarantee that the use of legalisms in your opinions will destroy whatever freshness and spontaneity you might otherwise attain." Legal writing should be planned and formal, not conversational. Writing cannot emulate conversation. When people speak they use inflection, modulation, and body language. Nor should writers write as they speak, unless memorializing such pretties as umm, ah, I mean, and you know appeal to you. But Justice Smith explained that legal writers should not write words they "would not use in conversation."
About said, as in aforesaid, Justice Smith asked whether one would say, "I can do with another piece of that pie, dear. Said pie is the best you've ever made." About same, he asked whether one would say, "I've mislaid my car keys. Have you seen same?" About the illiterate such, he asked whether one would say, "Sharon Kay stubbed her toe this afternoon, but such toe is all right now." About hereinafter called, he asked whether one would say, "You'll get a kick out of what happened today to my secretary, hereinafter called Cuddles." About inter alia, he asked, "Why not say, 'Among other things?' But, more important, in most instances inter alia is wholly unnecessary in that it supplies information needed only by fools .... So you not only insult your reader's intelligence but go out of your way to do it in Latin yet!"
Many who enjoy legalisms also enjoy Latin. They might better enjoy being understood. As the line from high school goes, "Latin is a dead language, as dead as it can be. First it killed the Romans, and now it's killing me." Unless, a fortiori, you have an acute case of terminal pedantry, Latinate only when the word or expression is deeply ingrained in legal usage (mens rea, supra) and when you have no English quid pro quo.
Using Anglo-Saxon (English) words, not foreign, fancy, or Old English words, is not jingoistic. It is, mirabile dictu, common sense. Seldom is the foreign word le mot juste. A foreign word, rather, is usually an enfant terrible, a veritable bete noire. Foreign words and phrases are rarely apropos.
A sine qua non of good legal writing: Do not use Latin and Norman French terms instead of (in lieu of?) well-known English equivalents. Example: "I met the Chief Judge in person," not "I met the Chief Judge in personam."
The legal writer may use stare decisis for precedent; sua sponte for on its own motion or of its own accord; amicus curiae for friend of the court; res gestae for things done; or pro bono for free legal work for the public good. The lay reader will not fully understand the English terms anyway. You and your alter ego will not be personae non grata if your modus operandi is to use bona fide foreign terms of art that have long been incorporated into the lingua franca of legal English and have no commonly known and well-understood English equivalent.
If you must use Latin and French, do not make errata. It is de rigor (really de rigueur) that you use foreign words correctly. Exempli gratia, misspelling Latin words is not de minimus (really de minimis). Inter alia, using foreign words may lead to redundancies, such as ordering chile con carne with meat while you cruise along the Rio Grande River. Quod vide "vis-à-vis," which means compared with, not about.
Legal writers are also entreated to forgo archaic words and expressions. It behooves you to eschew them. Store them in a file cabinet marked "Nice to Know" and forget them. A nonlawyer will never use archaic words. Methinks lawyers should quash them too.
Never use these old-English legalisms: aforementioned, aforesaid, by these presents, foregoing, forthwith, hereinafter, henceforth, herein, hereinabove, hereinbefore, hitherto, herewith, inasmuch, one (before a person's name), per (or, worse, as per), said (instead of the or this), same (as a pronoun), such (instead of the, this, or that), therein, thereto, thereat, thenceforth, thereof, thereby, hereunto, thereafter, therefor (which is different from therefore and means for that, as in "I need a receipt therefor"), therefrom, to wit, whatsoever, whensoever, whosoever, whilst, whereas, wherein, whereby, where-with, and all verbs ending in eth.
Deem and consider this: You may have wanted to eschew up and spit out your aforesaid first-year legal-writing course. But please acknowledge and confess that what you learned therein in your first hour will, inter alia, put you on terra firma to improve your practice, to wit, your career. More this writer sayeth not.
Andrew J. McClurg, The Law School Trip: An Insider’s Guide to Law School 141-47 (2001).
All law schools require first-year students to take Legal Research and Writing, a highly labor-intensive course. Usually, the workload for a law school course corresponds to the number of credit hours for the course. The more credit hours allotted, the more work required. But we reversed everything for Legal Research and Writing. We require a lot more work than other courses for fewer credit hours.
In this single course, a student is expected to master legal research, understand the bizarre Bluebook, compose at least two sophisticated legal memoranda and, in the second semester, write an appellate brief and present an oral argument to a panel of judges. Students are sometimes overheard complaining that allotting only two credit hours for legal writing is arbitrary and capricious. This is not correct. Everything is done according to a scientific, mathematical formula:
x/y = 2 credit hours
with x being the number of hours required to master Legal Research and Writing (rounded off to the nearest thousand) and y being the number necessary to make the answer = 2 credit hours.
Be kind to your legal writing instructors. They have the hardest job in legal education. Forget legal writing. Legal writing instructors are forced to spend long hours working with students who never learned regular writing. * * *