All about good legal writing

As the second function of this blog is following its webmaster in her quest to finish a PhD thesis (the first function being merely blogging about pdp and privacy), I find that a post about good legal writing is in place.

I recently found an article called “What is good legal writing and why does it matter?”, published by Mark K. Osbeck in the September issue of University of Michigan Law School Public Law and Legal Theory Working Paper Series. As I am starting to write more and more, I was genuinely interested in what the article brought new to the theory of legal writing.

Even though the article clearly focuses on legal writing in practice, I consider that all of the main points are as valid for academic legal writing as they are for professionals in practice.

I will share the main ideas, adding that you can find the entire article HERE:

Good legal writing is best understood as writing that helps legal actors make decisions in the course of their professional duties, which can also make sense in the academic field as the research work is aimed ultimately in changing or bettering the practice.

A. Good Legal Writing is Clear

In their book Making Your Case, for example, Brian Garner and Justice Antonin Scalia claim that “one feature of good writing style trumps all others. Literary elegance, erudition, sophistication of expression—these and all other qualities must be sacrificed if they detract from clarity”.

B. Good Legal Writing is Concise

Concise writing conveys the writer’s points succinctly, without superfluous words, and with an appropriate level of detail.

Conciseness is fundamental to good legal writing because it helps readers make effective use of their limited time.

But the answer is actually more complicated. For concise writing is not principally about brevity; rather, it is about efficiency and conveying the appropriate level of detail. Concise writing is writing that is as succinct as possible without unduly restricting the amount of information conveyed. As Strunk and White put it, the writer must eliminate all unnecessary words from sentences, and all unnecessary sentences from paragraphs.

C. Good Legal Writing is Engaging

Lord Denning, a well-known British jurist, describes the importance of engaging the reader as follows:

No matter how sound your reasoning, if it is presented in a dull and turgid setting, your hearers–or your readers–will turn aside. They will not stop to listen. They will flick over the pages. But if it is presented in a lively and attractive setting, they will sit up and take notice. They will listen as if spellbound. They will read you with engrossment.

Far too many legal writers disregard storytelling altogether, merely reciting factual material in a dry, mechanical way, as if the “facts” were simply data points rather than stories about real people. But in doing so, these writers lose a powerful persuasive tool. For a growing body of literature indicates that most people, including judges, make decisions more readily on the basis of stories that they can relate to their own experiences than they do through argument, statistics, or logic.

Ruth Anne Robbins, for example, argues that “[b]ecause people respond–instinctively and intuitively–to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients’ goals by subtly portraying their individual clients as heroes on a particular life path.”

ELEGANCE–THE HALLMARK OF GREAT LEGAL WRITING

The best legal writing is not just writing that is especially clear, concise, and engaging; what characterizes great legal writing is a separate, aesthetic quality, which I will refer to as elegance.

I will put here an absolutely beautiful example of elegant legal writing, also excerpted from the article. The fragment belongs to Judge Easterbrook in the case Miller v. Civil City of South Bend:

Pervading this opinion is a belief that states may draw no lines where art is concerned. Sophisticates go to the museum and see Renoir’s Olympia or to the opera and see a soprano strip during the Dance of the Seven Veils in Strauss’ Salome. If the First Amendment protects these expressions, the argument goes, Joe Sixpack is entitled to see naked women gyrate in the pub. Why does this follow? That a dance in Salome expresses something does not imply that a dance in JR’s Kitty Kat Lounge expresses something, any more than the fact that Tolstoy’s Anna Karenina was a stinging attack on the Russian social order implies that the scratching of an illiterate is likely to undermine the Tsar. Rembrandt applied paint to a canvass; a bucket of paint hurled at a canvass also deposits paint. A conclusion that Rembrandt’s paintings are speech would not imply that all paint is expressive. Juvenile delinquents who deface subway cars with spray paint may be “expressing themselves” in a colloquial sense, but they are not communicating ideas beyond their disdain for the sensibilities of others. The First Amendment does not let a government draw lines based on the viewpoint the performer expresses; it does inquire whether “entertainment” is “expression” in the first place. The Constitution does not protect “the freedom of entertainment.” “Speech”—by implication “expression” of thoughts through conduct—is the foundation for its application.

That being said, I hope style will gradually make its mark in legal writing, being it in practice or academic. I will sure take the advice into account.

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