Lawyers need communication skills: especially the ability to research and write. Students conduct legal research at the master's seminar and, to a varying extent, can choose subjects related to writing of basic pleadings. However, is this enough to prepare an apprentice for the legal practice?
Academic courses on legal research in the USA date back to the turn of the 19th and 20th centuries. Regular, in-depth courses in legal writing have been conducted there since the 1950s. Professional pedagogy on legal communication was widespread in the 1980s. At the beginning of the 21st century, practicing lawyers in the USA were divided according to their generations - the elderly never underwent training in the field of specialized legal writing and never encountered problems that the academic education at that time just posed to law students. They acquired and honed writing skills at their work or not at all, just like contemporary European (or at least Polish) lawyers.
In 2001, a total of 926,000 lawyers were surveyed in the USA, including a large group of 11,000 judges. They were asked to evaluate lawyer’s ability to write based on the following criteria:
- simple and understandable language
- convincing tone
- using the active voice
- addressing the legal problem
- precision of expression
- reliable analysis
- proper argumentation from authority
- stylistic correspondence
- good organization of the text
- logic of the argument.
Almost 94% of the respondents were of the opinion that lawyers have problems with writing even uncomplicated texts.
Participants of the research indicated as the biggest problems:
- lack of ability to concentrate on the subject
- lack of ability to develop a theory for a given case
- lack of ability to apply composition rules
- lack of persuasion skills
- lack of ability to establish relationships between various bodies
- grammar, spelling and punctuation errors
- lack of citation skills
- lack of ability to follow the development of the law.
Subsequently, the respondents indicated the following problems:
- messy language
- lack of ability to justify the position
- incorrect reference to facts and law
- lack of ability to correctly edit the text
- insufficient research on the law
- using the passive voice
- excess of quotes
- poor linguistic correction.
How do you fall on this background? Which problems do you see in your surroundings?
Let's try to determine what limits students' ability to develop in a way that their teachers - and later their employers and clients - can expect the best results from them. Here are some possible explanations that are not mutually exclusive, and most likely the real answer is a package of several of them.
# 1. Lawyers do not writing at the school of law
Law faculties do not offer students the opportunity to learn legal writing apart from the already mentioned, substantively limited courses. Thus, students do not have enough opportunities to practice and improve their skills at university.
Writing is difficult and practice is the surest way to develop. Legal writing will never improve until the academy and law companies make it a priority. Good writing is one of the most important skills of every lawyer. Undoubtedly, the curriculum of every law school should include more courses focused on writing.
# 2. Legal studies underestimate the value of writing classes
Many people think that the academic writing classes do not go hand in hand with the basic purpose of legal education: law schools should be a place of passionate discussions about theories and legal principles, not instructions about mundane practical skills.
Legal communication is important for legal practice, yet universities treat legal writing with negligence, awarding a relatively small number of points for classes that, after all, require a lot of work. As a result, students neglect learning these skills because they receive a signal that the academy does not recognize writing as important.
Legal writing classes are not to be language classes, mainly focusing on grammar, punctuation and spelling. Instead, they teach analysis, reasoning and communication. In many ways, such classes are the only real opportunity for students to practice the writing skills they will need when they start working in the profession.
# 3. Poor writing favors economic interests
Not everyone thinks that lawyers' poor communication skills are the result of inadequate knowledge or practice. Some - maybe the ones who are more cynical - rather point to self-defense: advocates are said to deliberately use legal jargon and confused structure to justify the amount of their bills and enjoy the power of being the only ones who understand what they wrote. If I know something that the rest of the world does not know, then I deserve to be payed by the world generously.
# 4. Inertia rules
Perhaps legal writing is not improving because most lawyers have learned law by reading poorly written court decisions. The inevitable parroting of style means that change for the better is difficult. A lawyer is a profession that is based on the past to win in the present. The use of form banks and the almost manic use of direct quotes are the most impure practices that reinforce writing problems, including poor text organization, insufficient analysis and intricate language.
Also, fear of risk hampers the reform of writing. The younger lawyer in the office may not write clearly and succinctly just because his older colleagues write in a more intricate style. And some clients can even insist on the "traditional" style of writing. The simple language has been somewhat inhibited by this inertia. We should support good habits of law students from the very beginning. Replacing bad habits with good habits is much more difficult than shaping good habits while having a clean account.
# 5. There are no workshops to develop writing skills
Legal corporations do not focus on writing skills. Although they offer a number of training courses aimed at developing legal practitioners, and despite requiring them to attend a specfic numer of courses, the vast majority of training on offer deals with knowledge, not skills. It is difficult to say why there is a lack of training in writing. It is possible that participation in a writing course would be seen as an admission of writing problems. Perhaps practicing lawyers would rate them as unworthy of their time?
Maybe legal corporations would do the right thing, requiring practicing lawyers to participate in writing courses? Writing is after all a central element of the legal craft.
# 6. This is a waste of time because no one will pay for it
Most lawyers are extremely aware of time and costs - and rightly so. In an increasingly competitive legal market, everyone is looking for ways to improve their work. One of them is limiting the time spent on writing. Perhaps lawyers do this because clients are not ready to pay for it. It is difficult to justify spending hours on correcting letters when the value of the dispute is small or the client wants to keep costs low. The cost of writing can be particularly high if a lawyer has to get rid of old habits and make new ones. Unfortunately, clients are usually more willing to pay for hours spent in court or negotiating with an opponent than for hours spent on editing a document.
And as to the time constraints - sometimes writing is a challenge, because simply the day is too short.
# 7. Lawyers do not know that they write badly
In the absence of feedback on the quality, lawyers remain trapped in deep-rooted habits that may not be good. What's more, most lawyers work with others, and the others also cherish obsolete writing styles. In fact, you will not know that you write badly if you work alongside weak writers. There are also no reasons to improve: you may not see the connection between good writing and the desired results. If the current writing seems to realize the intention, why change anything?
Matters could look different if the judges more often commented on the quality of the pleadings. If senior lawyers and judges do not demand the appropriate quality of writing from legal practitioners, practicing lawyers will still work and write in the way they are used to.
# 8. This is today's generation
In the popular media, there have been many opinions about the X generation. Almost all of them are rather negative. It is said that representatives of this generation, especially those educated, do not have an ethos of work or motivation of older generations, they are impatient, sometimes disloyal and somewhat demanding. These features also apply to legal professions. Another point is that virtually every generation has been criticized as lazy and self-centered. Generation Y is, for example, criticized for a strong sense of independence and autonomy and the urge to achieve results quickly.
It is possible, however, that the cultural and educational experience of lawyers from these generational groups has not prepared them to consistently create high-quality written work. It is difficult to encourage lawyers to persistently work on their writing style if they have never had to make such efforts.
# 9. Technology bothers because it makes it easier
Technology has revolutionized our ability to communicate, but has had a negative impact on writing skills. Convenience and efficiency are associated with cost: copying and pasting fragments from databases is quick and easy, but you can simultanously lose the ability to write just as quickly and easily. The option of automatically checking spelling and grammar has led many writers to become lazy editors of their work. These tools are of course helpful but will not verify poor organization, inadequate analysis or a well-written but meaningless expression. Despite the technological advances of the last decades, still only careful, intelligent editing can provide excellent writing.
# 10. Lawyers do not write regularly
Writing is a skill that requires regular practice. Some lawyers simply do not have much opportunity to write and the need to write a text means a real challenge for them. As a result of the non-use of skills, they are rusting, which is why lawyers who do not work on a clear organization of writing are not really effective in written communication.
And you, why are not you writing well? And why do not you change it?
You may also like:
Kosse S.H., ButleRitchie D.T., How Judges, Practitioners, and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study, w: „Journal of Legal Education” 82/2003, s. 80-103.
Berger, Linda L.; Edwards, Linda H.; and Pollman, Terrill, "The Past, Presence, and Future of Legal Writing Scholarship: Rhetoric, Voice, and Community" (2010). Scholarly Works. Paper 11. http://scholars.law.unlv.edu/facpub/11
Elissa A. Greenwald et al., NAEP 1998 Writing Report Card for the Nation and the States, <http://nces.ed.gov/nationsreportcard/writing/
Reality Check 2002, http://www.publicagenda.org/specials/rcheck2002/reality5.htm.