Is Good Legal Writing Inherited or Developed?

Are good legal writers born with writing ability, or does a lawyer become a good legal writer through mentoring, dedication to the craft, and hard work? This question isn’t new; many people have published their views on it, at least with respect to writing ability in general.

Jack Kerouac thought the question was important enough to publish a newspaper article on whether writing ability is inherited (he concluded that good writers are made, but genius writers are born).

In tackling the question whether good legal writers are born or developed, below I compare the expanded views of two authors on opposite ends of the writing spectrum—Bryan Garner (legal writing and usage) and Stephen King (fiction)—to discover their thoughts on this nature-versus-nurture controversy. I’ll then add my own take on the question, which is that most (but certainly not all) lawyers can develop good legal writing, but that they need to dedicate themselves to the task.

“[D]on’t ever believe that writers are born (not made). It isn’t true …”

Let’s start with Bryan Garner’s views on good legal writing. In a 2002 article in the Student Lawyer, which he later adapted for a chapter in Garner on Language and Writing, Garner stressed the importance of teaching good legal writing in law school. He says that if you think you’re a good writer when you start law school—because, for example, you studied English or journalism as an undergraduate—you’re deluding yourself. He cites Gorham Munson’s claim in The Written Word (1962) that “professional writers, discounting even marked talent, say that nobody can be called a writer until he has written a million words, the equivalent of ten good-sized books.” As to whether good writers are born or developed, Garner says that good writers are not born with the innate ability to write:

[D]on’t ever believe that writers are born (not made). It isn’t true, any more than the idea that golfers or violinists or cooks are born. The fact is that even those with talent—Tiger Woods or Itzhak Perlman or Martha Stewart—have worked extraordinarily hard to develop their technique. It’s no different for writers.

Stephen King approaches the question with more nuance. In On Writing: A Memoir of the Craft, King says that “[w]riters form themselves into the pyramid we see in all areas of human talent and human creativity.” At the bottom of the pyramid are the bad writers; above the bad writers are the competent writers; above the competent writers are the “really good writers”; finally, at the top of the pyramid, are the great writers:

the Shakespeares, the Faulkners, the Yeatses, Shaws, and Eudora Weltys. They are geniuses, divine accidents, gifted in a way which is beyond our ability to understand, let alone attain. . . . [M]ost geniuses aren’t able to understand themselves, and many of them lead miserable lives, realizing (at least on some level) that they are nothing but fortunate freaks, the intellectual version of runway models who just happen to be born with the right cheekbones . . . .

King claims that it’s impossible to make a competent writer out of a bad writer, and that it’s equally impossible to make a great writer out of a good writer. But he also believes that “it is possible, with lots of hard work, dedication, and timely help, to make a good writer out of a merely competent one.” If you want to be a good writer, says King, you need to do three things: read a lot and write a lot, then read a lot and write a lot, and then do it over and over again. King also maintains that becoming a good writer isn’t easy: “[I]f you don’t want to work [hard], you have no business trying to write well—settle back into competency and be grateful you have even that much to fall back on.”

I agree more with King than with Garner on whether good writing is an innate trait (though I stake this claim with some trepidation, as Garner has been known to visit this website). Based on my experience, as well as the anecdotes of others I know in the legal profession, there are lawyers who simply are innately talented legal writers. Ryan Scott, a law professor at Indiana University and former law clerk for the Tenth Circuit, is one example. As a first-year-law clerk at my former firm, his written work was far better than any writing I’d reviewed from other first-year-law-student clerks. Scott was gifted with an innate ability to write, and it was obvious to everyone who worked with him.

But like King’s assessment, I’ve also heard anecdotes about lawyers who, no matter how much a firm works with them to improve their legal writing, never seem to grasp even elementary concepts of good legal writing. So, for example, even if a superior repeatedly points out to the person that he should ditch the here-and-there words and other forms of legalese (as The Lawyerist’s Andy Mergendahl has advised here), or that nominalizations and buried verbs should be reworked into active voice, or that Enclosed please find (PDF) is silly and should be stricken from all correspondence, a month or two later the superior will see these legal-writing foibles in a letter, memorandum, or, worse, a brief filed with a court.

But I also agree with both King and Garner that there are “serviceable” and competent writers (I define “serviceable” writers as writers who are one level above bad writers and one level below competent writers. Unlike bad writers, their work doesn’t need to be completely re-done) who, with close mentoring, unwavering dedication, and tenacious hard work, can become good legal writers.

How do serviceable or competent writers make the transition to being good legal writers?

It’s simple: By actually caring about improving their writing.

Emerging good legal writers show that they actually care about becoming good writers by:

  • Getting legal dictionaries and usage and grammar books and actually referring to them when they need to resolve a thorny language, usage, or grammar question;
  • Accepting constructive criticism of their work and internalizing the concepts raised by that criticism. In other words, once emerging good writers learn a legal-writing concept or rule from others’ criticism, rarely will you find the same error in future work.
  • Not filing briefs, submitting memoranda to a superior, or sending letters to a client or opposing counsel containing obvious typographical and grammatical errors that could have been caught on one final close review;
  • Abhorring the recent phenomena of “making sausage,” even under incredible time constraints, and making sure that they have budgeted sufficient time to thoroughly revise their work before submitting it to a superior or a court;
  • Being excited about attending legal-writing CLEs like Garner’s Advanced Legal & Writing & Editing seminar, and welcoming the opportunity to learn new or refresh old legal-writing concepts at those seminars;
  • Having the confidence and assertiveness to explain respectfully the correct grammar or usage rule when a superior wants to lacerate their prose (Example: a superior deleting the hyphens in phrasal adjectives like breach-of-fiduciary-duty claim or common-benefit doctrine); and
  • Taking every opportunity to improve their legal writing by constantly seeking new writing projects, even those outisde their day jobs. Indeed, in The Careful Writer, Theodore Bernstein correctly observed that “[w]riting is one art form that can be practiced almost anywhere at any time.” And echoing Gorham Munson’s view above, Ray Bradbury apparently once said, “Anyone who wants to be a writer should write at least 1,000 words a day.” Not many lawyers can come close to Munson’s and Bradbury’s long- and short-term writing goals without actively seeking outside writing projects.

So I don’t agree with Bryan Garner that any lawyer can become a good legal writer, a competent one, or, perhaps, even a serviceable one. There will be bad writers who cannot be saved from themselves no matter how hard they or their colleagues try. I also agree with Stephen King that great writers are in an untouchable class of their own. But I agree with both of them that if a lawyer is a serviceable or competent writer, there may be some hope for him to become a good legal writer if he steadfastly dedicates himself to becoming one.

(photo: http://www.flickr.com/photos/snail/4924635571/)

Lawyering Skills

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  • Dan Durocher

    I truly enjoyed reading this, and I couldn’t agree more. You simply have to care if you want to get better.

    I read King’s “On Writing” at a very young age (I was a sophomore in high school when I bought the book the week it came out). I took the lessons to heart and decided that I was going to be the best writer I could be. Since then, I have read many books on the subject of writing (most recently, Garner’s “The Elements of Legal Style”). I wouldn’t dare claim that I am a great (or even a good writer). As a second year law student, I’m probably a poor legal writer. But I do know that my general writing skills have improved over the years with practice. I am hopeful that, with hard work, my legal writing skills will improve as well.

  • http://atcounseltable.com/ Alex Craigie

    I find it kind of unfortunate that so many in our profession, after so many years of education and so much reading and writing practice, remain poor writers. I agree that some writers are so challenged that no amount of help will make them good. I also agree that you can take most mediocre writers and improve their skills with some training and practice. Two changes that are easy to master and make a HUGE improvement right away are (1) strive wherever possible to use active voice; and (2) try to say the same thing with fewer words.

    I also agree that, even among well-published authors, the true geniuses really are “divine accidents.”

  • http://www.passthebaton.biz/ Susan Gainen

    Great post! And thank you for recommending that legal writers READ. Writing without wide-ranging voracious reading habits leaves writers with limited vocabulary and plodding style.

    Eyes often rolled when I would tell prospective and admitted law students that if they didn’t care about writing, or where a comma would need to be, or whether there was a two-place-decimal-point typo on page 354 of a 600-page contract, that they would be better off finding another profession.

    Clients live (and, sadly, sometimes die) on the quality and clarity of a letter or a brief. If writing greatness isn’t an option, super diligence may lead to some level of competence. Work at it.

    That said, legal writing is hard. There are pesky facts to understand and wrangle, and cases and statutes that must be cited to their actual meaning, not to a figment of someone’s imagination. Litigation-related legal writing also requires that lawyers get to the point and cover their bases within page limits. It is neither long-form fiction nor twitter, and it is a skill that requires practice, practice, and more practice.

  • Vincent

    As it relates to trial practice, a jury is not going to care how well the attorney–whose client they ruled in favor of–wrote his/her briefs and motions. In addition, Stephen King is a science fiction novelist, and his kind of writing is different from legal writing. This isn’t exactly software development here; legal writing is a skill that any attorney can become proficient at if the necessary time is put in to develop the craft.

  • Jeff

    Thank you for the advice and the follow on links. I’m currently striving to rise above competent and I am happy to see there is hope!

  • http://roskylegaled.com/ Dianne Rosky

    I know exactly where I come down on this! Good legal writers are made — not born. But that means there are no excuses for lousy writing.

  • http://www.linkedin.com/in/matthewsalzwedel Matthew Salzwedel

    Thank you all for your comments. I have to respond to Vincent’s, though.

    I hear this claim all the time from criminal lawyers, namely, that since they are in court all day, good writing matters less than it does in civil practice. I don’t buy it. It’s an excuse for poor writing, nothing more.

    90+% of civil and criminal cases don’t go to trial, and most cases are won and lost through pretrial motion practice, like motions to suppress (in the criminal context) or motions to compel (in the civil context). I don’t think there’s any dispute that good legal writing is essential to good motion practice. So even though a civil or criminal jury won’t care about good writing — because it doesn’t read the briefs — that really isn’t the point.

    As to Vincent’s critique that, because Stephen King isn’t a lawyer, we shouldn’t heed his writing advice, I also couldn’t disagree more. Good legal writing, above all, is the ability to tell the story of your client’s case in a concise, clear, and colorful manner. King’s views apply equally to legal writing as they do to fiction writing.

    I’ll add one more authority to support my view of the importance of good legal writing, no matter what type of law you practice.

    The legendary Charles Alan Wright, the authority on federal practice and procedure, said that “[t]he only tool of the lawyer is words . . . Whether trying a case, writing a brief, drafting a contract, or negotiating with an adversary, words are the only things we have to work with.” Indeed. If a lawyer can’t articulate the theory of his client’s case in a well-written brief, I wouldn’t put my money on him to convince an advsersary or a jury of it.

  • Daren

    My belief is that good writing skills are not something you are born with, but rather are developed at a young age. Think of it in terms of the spoken language; when you learn your first language, or even a second language as a young child, the process is completely different from when you try to learn a second language later in life. As children, we learn to speak by listening to others and emulating. A child’s mind is like a sponge, and is particularly tuned to this manner of learning. I think you would find that most people who are good or great writers were voracious readers as young children. Extensive exposure to the written word at a young age puts one on a path to being a great writer.
    Unfortunately, even such exposure to writing can be sabotaged by teachers in elementary and high school who are themselves poor writers, or do lazy things like putting an “A” on the top few papers from their class, without taking the time to edit them. Unless a child is a bona fide prodigy, ANY paper turned in by a student in elementary or high school should be returned covered in red ink. This is how writing skills are improved, and it is much less effective once we reach adulthood.
    So parents: Make sure your children read (and by read I mean actual books), and don’t take for granted that their teachers will do what it takes to make them great writers. It will be much harder to move up the “pyramid” later in life.

  • http://personalinjurylawyerstpaulmn.com Patricia Hartmann

    I believe that good writing reflects practice more than any native skill. I think that Truman Capote was known for having to force himself to write so many words each day when he was working on a story. I saw an interview he gave where he revealed that rarely did the words “just flow.” He worked hard to convey what he was trying to say. Many people assume that good writing comes naturally to the author that excels. Most respected authors would tell you it was work for them to produce any writing–especially the simple, concise examples.

  • R Beal

    Interesting article, and one that is of professional interest. I’m surprised that Ken Adams wasn’t also mentioned above somewhere given his highly practical contribution to improving legal writing as a whole. That aside, one of the biggest problems that continuously affects legal writing is an unrelenting desire to add a rhetorical flourish to prose so that the writer can demonstrate how adept s/he is at unnecessarily complicating the otherwise remarkably simplistic.

    • http://samglover.net/ Sam Glover

      I see what you did there.

  • Joan

    I believe the theme should be that every writer has room to improve and he or she CAN always improve. No matter you are a bad writer, competenent one, or a great one, or even a genius, there is always a next level. For the legal profession, writing is a must and conscious efforts to improve are essential.