LovelyLadyLaw7

Legal Writing Skills: A Tool of the Lawyer’s Trade

An Introduction to This Column: Time to Take Out and Sharpen Those Pencils​

I was in the seventh grade when it happened to me.  As a seventh-grade social studies student, I had volunteered to represent the State in a hypothetical criminal trial and ultimately stood up in front of a jury of my fellow peers to argue that "the man" sitting before them (meaning a fellow peer who had volunteered to be the defendant) was guilty of kidnapping and grand larceny.  Every jury member then voted "guilty," and that was when it happened to me.  As I received the news that I had secured a unanimous guilty verdict, I heard the legal profession call my name while my dream of becoming an actress slipped quietly into being a thing of the past.  Even though I later found out that defense counsel had erroneously decided to wait until closing arguments to introduce evidence of a defense (a tactic that wasn't ultimately allowed by the judge (meaning the classroom teacher) and that represented the unfortunate misunderstanding of those peers acting as defense counsel as to the function of a closing argument, all of which ensured my victory), I still decided, caught up in the excitement of the "win," to commit myself to someday becoming a lawyer—a commitment that has since become true.

Little did I know at the time I made that decision to become a lawyer that being a lawyer wouldn't mean standing up to give oral arguments in a courtroom all day long or even that there are some lawyers (i.e., transactional attorneys) who may never step foot in a courtroom a day in their professional working lives and who rightly work very hard to make sure that doesn't happen.  Perhaps the first clue, then, that something other than presenting arguments would be a part of the job—and that legal writing skills would represent a tool of the trade—came when I was instructed to submit an entrance essay to my law school even though I had already been accepted.  I remember thinking, "Why am I being asked to write yet another essay?  Didn't I already submit one in my application packet?"  In fact I had already submitted one when I applied, but this time the director of the legal writing program wished to assess my—as well as every other incoming law student's—writing capabilities.  That was a sign that legal writing was not and is not to be taken lightly.

The next clue that legal writing skills would be a tool of the trade was when I took a mandatory legal process class for two semesters during my first year of law school.  This time I remember being surprised the topic of legal writing took up even more class time than the legal research component of the legal process class.  Of course I've since found out that my law school's emphasis on legal writing was all for good reason.  As my law school makes clear on its website, "Lawyers are professional writers.  Whether it be a letter, a motion, a brief, a complaint, a contract, or any of the other multiple documents attorneys are frequently asked to prepare, lawyers spend much of their professional career writing.  A lawyer who cannot write effectively is greatly handicapped in his or her ability to represent clients."  (See http://law.utk.edu/centers/writing/.)

Truth be told, I wasn't really disappointed in learning that legal writing would constitute a large part of my eventual job because writing was a process I felt I had essentially mastered during my years of undergraduate school.  Some other law students, though, perhaps weren't so thrilled to realize that their days of college writing hadn't actually ended but rather were about to commence again on a whole new scale.  Fortunately for me, I completed those two semesters of legal process relatively unscathed and eventually accepted a position as a judicial clerk, which meant not only more time spent on legal writing but also time spent on editing.

Nothing quite taught me to pay true attention to the English language than when I was asked to edit and learn from draft judicial opinions.  During the course of my judicial clerkship experience, I spent countless hours editing draft judicial opinions.  At the same time, I was also tasked with learning my judge's writing style.  Through these processes of editing and learning how to emulate my judge's style, I became keenly aware of certain stylistic matters that I had otherwise been taking for granted, some unique to the clerkship experience (for example, whether to use "pleaded" or "pled") and others more general (for example, when the word "that" can be omitted).  Ultimately I realized that effective writing is based on the "C" principles I had heard of all throughout my formal education years—mainly, the principles of clarity, concision, cohesion, consistency, and (the state of being) convincing.  As a judicial clerk, I learned the meaning of these principles; I also learned of the importance of one more "C" principle that I'd like to add to the list—that of creativity.

In future installments of this column, I'll elaborate on and deliberate on this principle of creativity as well as other stylistic matters that arose during my judicial clerkship experience.  More specifically, my column will focus on the above-mentioned principles that became the most apparent to me during my clerkship experience as well as focus in on specific issues related to one or more of the principles, all with the intent of helping readers who are lawyers become more cognizant—and thereby stronger—legal writers.  By now I hope that the reader realizes the significance of legal writing to the legal profession and that it's well worth the time for a lawyer to invest in sharpening her or his legal writing skills tool from a blunt or even partially chiseled point to one that's fine and durable.

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