By Dr. John F. Sase
“[E]ven passable writing involves rewriting again and again and again.”
—Deirdre N. McCloskey, “Economical Writing” (Waveland Press, 2nd ed., 2000)
Prelude
This month, we will explore the art of writing for those who work at Law offices, such as organization of material and ideas, clear and accurate sentence structure, spelling, punctuation, and grammar. In my (Dr. Sase) work as a Forensic Economist, attorneys have often bemoaned about recent law-school graduates who flounder in writing basic documents such as the complaint and the brief for a case. In addition, lower standards of editing have spilled over into the work of Legal Assistants and other law-office staff.
As with many post-secondary instructors who review, edit, and grade the written work of students in associate, bachelor, and graduate degree students, I have witnessed the decline of basic writing skills. In the past, universities required these skills of college-bound high school graduates. As educators, we assess the written communication skills of our students because we understand the importance that students learn to write effectively and to demonstrate their communication skills, and critical thinking abilities. Though the written work of those who labor in a law office often contains excellent content, their weak grammar, inappropriate styles, and inaccurate spelling and punctuation may create an air of confusion and misunderstanding and
unprofessionalism among many readers. This lack of skills will no doubt negatively affect the practice, the courts, and beyond.
A sizable segment of law school applicants perform well on the graded, objective portions of the Law School Admission Test (LSAT). However, the testing company does not grade the thirty-five-minute writing sample administered at the end of the LSAT before sending the sample to selected law schools. Today, senior attorneys have grown more aware of this downturn in writing skills apparent to law professors three or more years previously.
Obviously, writing for a law review at school brings forth the best of student writers. However, what about the others? Established attorneys should not have to take on the task of teaching the
rudiments of professional writing for law offices to their staff. However, given the investment made to recruit and hire new talent, be they ones who have passed the Bar Exam or have earned a Paralegal Certificate, an open dialogue about office standards with an appropriate take-away may benefit the entire office. A test of basic writing and editing skills can be given in the spirit of professional development within the larger legal community, which includes attorneys, forensic experts in various fields. For all members of the office staff which keeps the firm afloat on a daily basis, we present the following submission.
Some attorneys, economists, and various other professionals do not take criticism about their writing very well. Many professionals rarely reread or rewrite their documents or utilize the skills of an experienced editor in the office or from the outside.
In contrast, professionals who take a personal pride in their writing will grow and develop through negative as well as positive critiques. Similar to advice in “The Joy of Cooking” (Irma S. Rombauer et al, Scribner, 2019 edition), one may find a joy in writing. Therefore, lawyers and staff who take the opportunity to revise their works multiple times before submitting them will help to ensure the creation of more effective documents.
Throughout the legal community and beyond, writing stands as the trade of professionals. Complacency with lower standards in professional writing can lead to problems that include lack of respect and confidence in the abilities of the firm. However, poorly written technical prose causes more documents to fail in achieving their purpose than does hasty research or sloppy statistics. We should remember that ninety-five percent of cases settle before going to trial. Much of the credit for the success of the attorneys involved goes to their well-written, correctly edited persuasive documents submitted to both the court and to the opposing counsel.
The Ground Rules
Almost all young attorneys or staffers can develop their skills to write well. Often, the traditional rules of writing can help. Nevertheless, the continuation of deficient writing habits rather than the pursuit of perfecting their skills will probably injure emerging practitioners and their firms. A copy of MLA Style should be on the desks of every professional who writes at all in their work. In recent years, I have suggested using tools such as Grammarly (www.grammarly.com) to pick off the low hanging fruit of poorly written text that lowers the quality of otherwise professional documents.
The first objective in writing any document remains Keeping It Short and Simple. With practice, professionals in any field can trim their initial drafts by one-third. However, this trimming means that the writer may need to commence with fifteen pages in order to draft a legal brief or similar document of ten pages. This process of writing resembles the work of baking, carving, and other crafts—Focus, Ability, and Discipline must occur in order to achieve the desired quality. Ignore the quote “Write Drunk, Edit Sober” as misattributed to Ernest Hemingway who wrote in the morning, but did not start drinking until the afternoon (or later).
As with music, painting, or any other art, competent writers naturally reflect their spirit and mood within their work and these remain an important point to remember when authoring any persuasive legal document. Writing that sells an idea needs to possess the greatest clarity for their readers to comprehend the intent of the author. Remember: For all types of documents, readers are sovereign.
Our Strange Language
Apart from numerous Latin terms used in the field of Law, the legal community does not communicate in the language of ancient Rome. Our Modern English in current use has evolved from a diversity of globally historic languages. As a result, established rules of English grammar tend to be factual rather than logical. These rules present a conundrum that befuddles many professionals working internationally or using English as their second language. The phrase “There are exceptions to every rule” could have been created for learning the English language.
The most common complaint remains that so many rules make no sense. However, once accustomed to the language, one can find it easier to spot poor writing and determine where the work has strayed. When writers read the work of others, the former will find that they can sense it as well. As a result, experienced attorneys can articulate to their office why a poorly written document sounds awkward and unprofessional. When in doubt of your skills, hire an assistant who is an experienced editor.
Attorneys, experts, and others find and define standards of quality for style through the evolution of cumulative works by authors considered as excellent writers in the language of their respective fields. Furthermore, Legalese does not set its style standards through rule books. Such books rarely keep up as our language evolves. The absence of books that reflect current usage can lead to a noticeable lack of clarity and grace that leaves the reader frustrated. However, guides specifically written for attorneys exist. These include works such as “Master Legal English for Lawyers: English Writing, Grammar & Punctuation for Law,” by Marc Roche and IDM Law, Mar 16, 2022.
All professionals working in the field of Law need to remember that basic rules guide even the most technical of writers. A well-written document should meet the intended goal while stirring some degree of passion for persuasion within the author. Writers must either admire or admonish what they produce. In other words, “love it or leave it.” Otherwise, what reactions can an attorney possibly expect from a readership of judges and opposing counselors?
Tools, Techniques, and Fluency
The major challenge that attorneys and others face after reading, thinking, and strategizing comes through writing. If one over-intellectualizes the topic, fluidity may be eluded before even setting pen to paper. Therefore, one needs to ask themselves, “When should I start writing?” Experts on writing agree that it is better to begin earlier rather than later. Nevertheless, many writers feel dread when faced with the prospect of sitting down at the keyboard with a blank screen. As a result, the first draft is the hardest one.
Before drafting a document for Court, attorneys need to gather together the tools needed for this craft. These tools include A. general outlines; B. revision notes; C. scratch-paper, and IV. A word-processor program that remains open on your computer screen. Note: One needs to remember that some working in the legal arena prefer writing the initial draft using a pen and a pad of paper or index cards that can be carried around. However, when writers and editors commence the second draft, a good dictionary, such as a Merriam-Webster (www.merriam-webster.com), and a thorough thesaurus like the one by Roget (http://education.yahoo.com/reference/thesaurus) is essential. Words remain the primary tools of the work. Some readers may
want to look at “The Craft of Research” by Wayne C. Booth (Chicago Guides to Writing, Editing, and Publishing, 2016)
Research is writing, and writing is research; they are inseparable. Like lyrics and music, neither one needs to be linear or exclusive to one another. In research, a well-tested strategy for overcoming obstacles leads to scribbling snippets on Post-It Notes and jot down essential ideas on index cards or scraps paper. One can then easily arrange the notes, cards, and scraps on a convenient table, wall or bulletin board. The linearity that emerges in a document from assembling the mosaic of small pieces—the free-form jigsaw puzzle of sketches and phrases that evolves into a finished document with a well-written introduction and conclusion holding it together. For inspiration, one may watch the George Lucas documentary “Within a Minute: The Making of Episode III” (https://youtu.be/VgS3pt0yMvs).
Next, one begins to write. If only computer programmers knew how thought flows within the creative process, then computers could do our creative human writing. However, they do not—perhaps for the better. Though we seldom know for certain where human creativity comes from, it continues to survive. The act of writing forces the questions that should be asked about facts relating to our document. Some writers claim that their guiding torch comes through the question, “So what if it isn’t perfect?” If it isn’t, an attorney’s reputation as an intelligent, educated professional may suffer. Resultantly, our writing may improve the more we learn to ask and answer this preceding question.
Writers achieve flow—literary fluency—through work, grit, and sweat. Our path to fluency includes invention, arrangement, and style. Of these three, style may exist as the easiest to learn yet
hardest to perfect. Nevertheless, for each of us, style begins with fluency—getting our thoughts down on paper or into a computer. Style ends with our last rewrite, but when should we stop our revisions? After eliminating all of the muck, as well as careless mistakes in spelling and punctuation from our writing, our revision should reach an acceptable level of clarity, satisfaction, and confidence.
Takeaway
This month, I have begun a journey in the Art and Craft of writing in the fields of Law and Economics. This process includes organization of material and ideas, clear and accurate sentence structure, spelling, punctuation, and grammar, and a lot of focused work. Next month, we will address tools, techniques, and fluency, helpful hints for revision that include keeping the writing focused, clear, and interesting, a few words on presentation, coherency and rhythm, reading aloud, and fixing what is broken. Looking further, a discussion on what has transpired to erode the previously accepted standards of correct and meticulously edited written work will take place.
(Please feel free to copy and share with those in your office.)
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Dr. John F. Sase teaches Economics at Wayne State University and has practiced Forensic and Investigative Economics for twenty years. He earned a combined M.A. in Economics and an MBA at the University of Detroit, followed by a Ph.D. in Economics from Wayne State University. He is a graduate of the University of Detroit Jesuit High School (www.saseassociates.com).
