If you are a member of the legal profession, you almost certainly appreciate that written communication is a lawyer’s stock in trade. This is true whether you spend most of your time at a law school (as one of us does) or at a law firm (as the other does). And most legal professionals also know that good writing skills are frustratingly hard to come by; law students and young lawyers are every bit as smart as they’ve ever been, but (for a variety of reasons) many people see the gap between their legal acumen and their ability to deliver on their legal understandings through written work product as wider than it was a generation ago.
As a result, many law schools are paying more attention to helping junior lawyers write better. The University of Illinois College of Law, for example, where one of us serves as dean, has in recent years devoted a lot of time and energy into beefing up first-year and upper-division writing offerings and, perhaps more importantly, integrating writing exercises in the curriculum more pervasively. To be a good writer, one needs to write regularly.
And it’s not just law schools that are focused on writing skills. At least a few legal employers (including the one that the other of us works for) are investing significantly in developing the writing skills of summer associates, associates, and partners.
But how, precisely, can legal writing be improved on a large scale? That’s a big question, but as we explain in the space below, the first step in fashioning a good answer is to embrace the right starting point. For us, that means understanding that while legal writing draws on competencies that lawyers are already developing in the other aspects of their jobs or education, becoming a good writer also requires lawyers to tap into a different blend of skills and aptitudes. More specifically, we think good writing requires lawyers to integrate “soft skills” alongside their “hard skills.”
When each of us was in law school about three decades ago (one of us at Yale and the other at the University of Chicago), no one taught or even discussed soft skills. In fact, the term “emotional intelligence,” which underpins much of the soft skills realm and refers in significant part to good communication skills, was not yet widely known.
Back then, the assumption was that if you mastered the critical analytic techniques required to get good grades in torts, contracts, commercial paper, constitutional law, and the like, you had all you needed to be a good lawyer. But, today, anyone who has worked in the law knows that these capabilities aren’t by themselves sufficient to guarantee success as an attorney—or really as a professional of any kind.
Many people seem naturally to appreciate that legal tasks involving oral communication call for a mix of hard and soft skills. Take oral argument, for example. To be sure, you need high-level analytical skills—including the ability to rapidly synthesize rules and understand which facts are most important—to identify and develop the specific legal arguments that are most powerful. But you also need to intimately understand your audience—judges in general and also specific judges, courts, or panels—to be able to present your arguments effectively with an eye toward those most likely to succeed in that particular context. It takes the soft skill of becoming familiar with and understanding your audience to do that.
The same is true (perhaps even more so) for in-person negotiations; you need to fully understand the law, be completely familiar with the facts, and figure out how likely it is that judges would buy your claims if you end up in court, to know whether you should play hardball or take a softer approach. But you also need to be able to interpret the signals that your opposing counsel (or student, in a competition) is sending, and to uncover the incentives and objectives (often emotional rather than economic) that may be underlying the other side’s position(s) and definition(s) of success.
It turns out that legal writing requires a similar blend of hard and soft skills. The hard skills associated with legal writing include the ability to research deeply and widely; to think flexibly and creatively about how the law you find relates to the specifics of your case; to organize, sequence, and defend your points in a logical way; and to choose your words precisely and present them grammatically. But the soft skills associated with good legal writing are also undeniably important. Those skills will let you see your writing from your reader’s perspective. Here are some suggestions the two of us (who work for different institutions but share a common stake in producing lawyers who can write well) have found from experience to be particularly helpful:
Make Sure Your Introduction Does its Job: The ultimate goal of written communication (at least in the legal context) is to enable the reader to accurately understand what is in your own head (and to agree with you). But to appreciate what the reader might need to bridge the gap between your two brains requires that you get some distance from, and objectivity about, your own written presentation. (This is why there’s no substitute for a good night’s sleep between writing and revising and then another one between revising and proofreading). The first chance you have to draw a reader into your own thought process is your introduction, which is why everything you draft as a legal writer, whether it be a memo, a brief, an article, or an exam answer, should have some kind of introduction. Figure that you have 30-60 seconds to orient your reader and convince her that learning about the world from your perspective is going to be worth her while.
Your introduction should make it easy on your reader by first previewing where you are going. In a brief, that means telling the court on the first page what you want and why you should get it. And in a memo or article, it means telling your reader up front what your ultimate conclusions or prescriptions are going to be. After that, offer sufficiently detailed roadmapping or outlining of what comes next (e.g., identify the main analytic pillars of your argument or analysis). If you do these two things, your reader will then be prepared to read and understand the rest of your document.
Organize Your Points Not Just With Logic, But Also With Your Reader’s Interpretive Process, In Mind: To organize the body of your document successfully, you need to be mindful of your hard logical, analytical skills and also your soft communication skills. If your legal writing has an intuitive organizational structure (alongside a logical rigor), your argument or analysis will be easier to absorb. If, as a law student, you are making two arguments in your spring semester trial brief, think about whether one comes first logically (for example, a procedural argument before a substantive one) but also about whether one seems intuitively to belong first (for instance, a stronger or more sympathetic argument before a weaker or more controversial one). Relatedly, use your headings to guide and pull your reader through the document. Like an effective roadmap at the beginning of your memo or brief, headings telegraph to your reader where you are going and break up the interpretive journey in a way that makes long documents more manageable. Our general rules of thumb (which means that they are suggestions rather than absolute requirements) are that 1) you should include a heading at least every three or so pages; and 2) your headings shouldn’t run longer than two lines. If you’re having trouble following these two guidelines, you probably need more headings, or at least subheadings, to map out and break up your argument or analysis.
Follow The “One-Read Rule”: It’s a lot easier to get readers on your side if they know you respect them. That, in turn, means you should avoid anything that slows your readers down. Almost every reader is going to be busy and likely has many briefs, memos, or articles to read (and this is true whether your reader is a law professor, a partner, or a judge). Readers are forced to slow down when your writing is confusing or unclear, and when you cause people to slow down, your credibility suffers. Your goal should be that the final version of everything you submit satisfies the “one read” rule: that is, that your reader can understand what you’re saying the first time through.
One tip for writing smoothly so your reader does not have to double back is to start every sentence with a short, concrete subject. That means things like “the plaintiff,” “the Court,” or “the claim.” And not more convoluted formulations like “the plaintiff’s allegations on information and belief.” If you use a simple-to-understand, concrete subject, you are more likely to follow it with an active verb, increasing the ease with which your reader will be able to readily understand the point you are trying to make.
Your writing will also be more digestible if it is more precise. Many people struggle with precision when they enter law school, for example, by failing to understand that the words “should” and “may” have significantly different meanings and that terms like “negligence” are legal terms of art. One of us once read a memo that, in discussing liability for breach of contract, used the term “contract” sometimes, but also used “agreement,” “arrangement,” and “deal,” in ways that may or may not have been interchangeable. With each new word, the question arose, “Is this the same contract she was addressing above?” You can imagine how that confusion slowed down reading that memo. Avoid this problem by choosing your words with careful attention and by employing specific legal terms (though not “legalese”) where helpful.
And, of course, short sentences are always easier to process and less susceptible of misunderstanding than are long ones. Use the word-count feature on Word and shoot for sentences that average about 25 words and that rarely if ever exceed 40 words. Try to make the first sentence of each paragraph shorter still—perhaps around 15 words. It’s a great way to help your reader painlessly “enter” the paragraph. In this connection, make sure your paragraph-starting sentences serve as effective transitions; if your reader is reaching a fork in the intellectual road, you (the guide) need to make it very easy for her to know the direction to take and to understand how that direction relates to where you have just been. (Introductory roadmapping, effective use of headings, and transitional markers in paragraph starters all serve the same general purpose of helping the reader stay on the same intellectual journey as the writer.)
Be Mindful Of The Time A Reader Will Need To Invest In Your Document: Think of how much content (both work-related and fun) is out there nowadays. All of this content places demands your readers’ time. For this reason, instead of writing with the goal of using the entirety of your page limit, look hard at your writing to see whether it can be shortened without sacrificing any important substance or effect. Look at each point, each sentence, and each word to ensure that it deserves to be included. As former Supreme Court Justice Anthony Kennedy recently remarked at an event one of us attended, in answer to the question whether in retirement he missed reading legal briefs every evening (and we are paraphrasing from memory here): “Well, as good as the briefs I used to read were, I never read one that I couldn’t put down.” So less is often more. One suggestion here, though: you should write out your complete analysis or argument before you start editing for length, in the same way bodybuilders often bulk up for maximum size before they start chiseling down to achieve maximum and dramatic definition. If you start with a draft that errs on the side of overinclusion, you will have before you all the raw materials that might warrant inclusion before you take a step back and start cutting words.
Our bottom line is this: If you approach legal writing with a focus on both your soft as well as your hard skills, you will be thinking about the process in the right way—and be in a good position to become an effective communicator.
