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Reasons legal writing doesn't improve

By Wayne Schiess

A commenter writes:

Writing is a fundamental skill. Law schools should put much greater emphasis on this fundamental. Those students who didn't develop good writing skills before they got to law school should take more than one or two legal writing courses. At the least, they should demonstrate a mastery of grammar before they're awarded a law degree.

No one can really argue with any of these points. And some law schools are doing more and better writing training. But writing education in law schools will not rise to the level this commenter would like. I offer two reasons.

First, mastering professional writing takes too long and is too big a job for law schools. No matter how proficient a law-school graduate is at the moment of graduation, there will always be something someone considers "fundamental" that the graduate will not have mastered. Ultimately, the graduate-turned-lawyer must take responsibility for mastering professional writing. The law school can and will do only so much.

Second, law schools--especially top ones--turn out thousands of lawyers every year, and these lawyers get high-paying jobs doing sophisticated work for large clients who pay high fees. That these lawyers often lack fundamental writing skills doesn't seem to matter. That their writing, even if fundamentally sound, is not crisp, vigorous, and plain doesn't seem to matter. That they often rely on forms and precedents that perpetuate archaisms, formalisms, and wordiness doesn't seem to matter.

Sure, I think it's disappointing and sometimes disgraceful that shoddy or even mediocre legal writing is everywhere. But the shoddiness and mediocrity don't seem to be causing big problems. The work gets done, the deal closes, the case goes to trial, and the brief gets filed and wins the case. Either there's not much real cost from bad legal writing, or it's very hard to measure.

On a related note, this is why it's hard for me to sell my services as a plain-English reviser. Why would a bank hire me to revise its home-loan documents into plain English? Are consumers complaining about the writing? Not much. Are the regulators criticizing the bank's forms? Not much. Is the bad writing causing litigation or other problems? Not much. The current documents work, so why pay to have them fixed?

Frankly, the law rolls on quite lucratively for many lawyers, so there's little incentive to improve legal writing. But we still try.

Full post as published by Legalwriting.net on April 18, 2008 (boomark / email).