When I teach legal writing to first-year law students, I surprise them with an in-class exercise around halfway through the first semester. I have the students break into groups, tell them to take out pen and paper, and pose this question: “What is the goal of legal writing?”
Puzzled, they just stare back. I ask the question again, “What is the goal of legal writing?” Still nothing. “I want each group to discuss the question and come up with a one-sentence answer. We’ll then write each group’s answer on the board and vote on whose answer is best. The winning group will get a prize. You can’t vote for your own answer.” The students begin murmuring and soon there’s a full-on discussion. This is serious—there’s a prize.
Most of the answers that make it to the board are pretty good. They range from generic—“The goal of legal writing is to write at a clear, concise, and professional level”—to ambitious yet somewhat misguided—“The goal of legal writing is to articulate the way people interact with the rules which govern society in an understandable and thorough manner.”
Before voting, I asked the students to critique each formulation on the board. What do you like about this one? Is anything lacking here? If you think this one is better than that one, why? Last year, in the end, the winning entry was, “The goal of legal writing is to inform your reader with competency, clarity, and brevity.” Not bad. Each member of that team received two free movie tickets. Then a couple of students raised their hands. “Professor Beck, what is your answer to the question?”
Here’s what I wrote on the board: “The goal of legal writing is to take something complex and explain it in a way that is easy to understand, without sacrificing substance.”
I arrived at my answer by way of a series of observations, one primary and three secondary. The primary observation is that, at its essence, legal writing is about effective communication. This includes communication to a colleague or supervisor (legal memorandum), client (client letter), a judge (trial brief), or a panel of judges (appellate brief).
The question then becomes, what is fundamental to the effective communication of legal concepts? My three secondary observations help probe this question: (1) the law is complex, which can make it difficult to understand legal concepts without significant time and effort; (2) an advocate’s audience generally does not have the time, effort, or understanding to grapple with these complex concepts; and (3) the law is highly technical, which means that oversimplifying legal concepts will risk losing meaningful information.
Effective communication, then, must take all of these observations into account. My formulation—“The goal of legal writing is to take something complex and explain it in a way that is easy to understand, without sacrificing substance”—is composed of three parts, seeking to give weight to all three observations, which in turn serve the primary observation that legal writing is about effective communication. Let’s take a closer look at how this works.
- Conceptualization: “to take something complex”
“To take something complex” refers to the process of conceptualizing a legal concept or principle. This is a two part-process: (1) coming to understand the legal concept well enough that it is internalized and explainable rather than simply memorized and recited and (2) having a strong sense of the “big picture”—i.e., how that concept relates to other legal concepts.
A legal concept is adequately conceptualized when an advocate can comfortably explain it in an understandable way and freely discuss its relationship to other relevant concepts. This process can be burdensome for law students and inexperienced lawyers, but, over time, as more legal concepts become conceptualized, it gets easier and easier.
An advocate can conceptualize through critical thinking and reflection. Instead of scanning an opinion for the court’s holding, focus closely on the court’s reasoning and think about how that reasoning led to the holding. Along the way, reflect on how the facts of the case could change to produce a different outcome while keeping the same reasoning.
If possible, find cases dealing with the same legal concept, through the same framework, that reach opposite conclusions and find a way to reconcile the opinions, if possible. If it’s not possible, look for further indications of a split between jurisdictions. Then, continue to reflect generally about how the cases fit together and, as more cases are encountered, incorporate them into this understanding. Over time, you will be able to think deeply about the law and place the impact of new legal developments almost immediately.
- Articulation: “and explain it in a way that is easy to understand”
The singular purpose of effective legal communication should be reader or listener understanding. An advocate should always write or speak to be understood. If the client, or partner, or judge does not understand—as quickly as possible—the point an advocate is trying to make, the battle is being lost.
A writer is always competing against the reader’s attention span; therefore, clarity is paramount because it is the quickest avenue toward effective communication. Students often come into a legal writing class with preconceived notions about “sounding smart” through the use of stilted language or jargon. This can be especially true for students who come from undergraduate programs, like business, that do not emphasize writing in plain English.
These bad habits can also be reinforced by an early focus in law school on reading older opinions, which tend to be less clearly written or more antiquated in their language than modern opinions. The irony about “sounding smart” in this way is that it elicits the opposite reaction from educated readers: frustration and a sense of “trying too hard.”
In Modern American Usage, Bryan A. Garner describes “linguistic simplicity” as critical to not only clear writing but also to sounding smart: “If the same idea can be expressed in a simple way or a complex way, the simple way is better—and, paradoxically, it will typically lead readers to conclude that the writer is smarter.”
George Orwell also warns in his 1946 essay “Politics and the English Language” of an “inflated style” and its tendency to obscure: “The inflated style itself is a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outline and covering up all the details.”
In short, the most confident advocate writes clearly and precisely, solely concerned with aiding the reader’s understanding.
- Retention: “without sacrificing substance”
While writing and speaking plainly about the law is critical, it is also necessary that the advocate not dull the sharp edges of technical concepts, which must retain their precision.
A delicate balance—between plain English and technical precision—is central to the struggle for effective legal communication. Two problems emerge when technical concepts are “dumbed down”: (1) information is lost; and (2) a danger arises of making a highly educated audience (colleague, partner, or judge) feel condescended to.
The best way to strike the right balance is to identify what is essential to the legal principle or concept being explained. In other words, how simply can you describe it before it starts to lose its necessary information?
Understanding that line, which separates necessary information from that which is more malleable, is the task at hand and one that requires thought and reflection.
Additionally, related to the second problem, do not confuse the demand for the simple and clear use of language with a license to write in an overly casual manner. To do so is inappropriate and sloppy. Always be professional in tone. Want an example? Read Orwell’s essays or a news column in the New York Times. Journalists really are the best at striking the balance between plain writing and information retention.
My in-class exercise about defining the goal of legal writing is fruitful, I think, because it forces the student to take a step back and assess the fundamentals of their task as advocates-in-training.
But this question can be just as important to a practicing attorney—even one with a great deal of experience—because it facilitates recalibration, which is necessary from time to time.
In fact, it is the attorneys that never reassess or recalibrate who get stuck in their ways and whose skill as advocates begins to plateau or even atrophy. Therefore, I hope you will ask yourself, “What is the goal of legal writing?”
Brandon Beck is an appellate attorney with the federal public defender for the Northern District of Texas. He has taught legal writing at Texas Tech University School of Law and is the editor-in-chief of West Texas Literary Review, which publishes poetry, fiction, and essays. In 2012, he was inducted into the National Order of Scribes.