Law firm leaders, judges and even clients have complained for years about the lack of solid writing skills in the legal profession, where huge decisions often turn on the written word.
And despite the development of software gizmos that have helped catch a cockeyed spelling of “egregious” or flag an incomplete sentence, observers say that much of the more sophisticated electronic finery is thwarting attempts at clear and concise prose.
“Attention Deficit Disorder is not just a made-up phenomenon. Sometimes I feel it,” said Bryan Garner, editor-in-chief of Black’s Law Dictionary and president of LawProse Inc., a legal writing consultancy based in Dallas.
Like other writing coaches, Garner sees the influence of technology in attorney writing, and, in many ways, he is not amused.
“They are losing concentration with what they’re writing about,” said Garner, who also is co-author with U.S. Supreme Court Justice Antonin Scalia of Making Your Case: The Art of Persuading Judges, which was released last month.
Many law firms over the years have hired Garner and other consultants to help polish the writing skills among attorneys in their ranks. Still other law firms have appointed their own in-house experts to work with incoming associates and even seasoned partners to boost their writing proficiency.
These professionals note that some aspects of lawyer writing have improved. On the whole, motions and briefs have shed much of their legalese. Organizational skills — getting to the point quicker — also are better.
New challenges, however, are rooted in the bombardment of electronic person-to-person communication and the instantaneous availability of information that now are part of nearly every lawyers’ workday.
“It’s a problem of distraction,” said Jennifer Murphy Romig, a legal writing and research instructor at Emory University School of Law and a writing coach to law firms.
She notes that interference with writing has always been present. A few years ago, it was computer solitaire, she said, and before that it was the old-fashioned crossword puzzle. But she describes today’s distractions — including texting, e-mail on a desktop computer, Blackberry messages and online news alerts — as “more aggressive.”
In addition, most of those distractions involve human communication, which makes them all the more attractive to attend to rather than drafting a brief on, say, jurisdiction.
The upshot is that writers lose their “groove,” she said, which can affect the continuity and even the accuracy of their product.
“If you’re getting a text message every few minutes, you never achieve flow,” she said.
Achieving flow may be important, but Craig Jeffrey, an eighth-year associate in Bryan Cave’s Chicago office, said that he needs to respond to the outside distractions that come his way when he is drafting contracts or memos.
“There’s an expectation on the sender’s side that I’m going to respond instantaneously,” he said, adding that he has encountered co-workers who respond only to e-mail once an hour or at other designated times.
“I haven’t been able to exercise that kind of restraint,” said Jeffrey, who practices real estate and banking and public finance law.
In many ways, technology has improved writing skills, Romig said.
Word processing basics, such as spell-check, passive-voice detection and subject-verb disagreement prompters can make more time for “what’s really hard about writing,” she said.
Advances in legal research also have improved writing, she said. Before online research, Shepardizing a case, for example, required a trip to the library to page through creaky volumes.
But the use of electronic research can create problems, especially for beginners, she said. All cases in electronic form look basically alike, she said.
A student or new lawyer might find a case clearly on point, but without the benefit of actually seeing the case in print, and where it sits on the bookshelf, the researcher may neglect to notice that it is from the 1920s or from a nonbinding jurisdiction.
“Holding the book reinforces the learning,” she said.
At Bryan Cave, Jeffrey, like all of the law firm’s associates, has participated in writer training provided by the firm’s own coach, Douglas E. Winter, who is of counsel to Bryan Cave’s Washington office.
The simple approach
The best advice Jeffrey said he received was to write as simply as possible and to edit and re-edit his work.
“I’m there to teach them how not to write,” said Winter, who trains summer interns, new associates and partners. As a litigator, he has served as lead counsel in high-profile air disaster cases and also has written hundreds of short stories and articles for major magazines and newspapers.
His books include the authorized biography of Stephen King.
Young attorneys, in a misguided attempt to make their writing more sophisticated, often try to imitate the kind of writing they have read in law school, which is a mistake, Winter said.
“Most of us would be far better writers if we’d never gone to law school,” he said.
He reminds the attorneys he coaches that they are using the telephone less and less and instead are relying on the written word to communicate.
“Some of the most clearheaded people come across on paper as people with the most convoluted reasoning,” he said.
Besides e-mail and quick hits on the Internet, or perhaps because of them, people in general are reading good writing less, he said. The consequence is diminished writing skills, since the biggest influence on writing is what the writer is reading.
Garner, with LawProse, advises lawyers wanting to improve their writing skills to read a book on writing or language “once a quarter.”
He also suggests that attorneys buy a usage book — he has written a few himself — and consult it 60 to 90 seconds each day, even if by merely browsing.
“That’s not a huge commitment,” he said.
In addition, he suggests that lawyers keep a daily diary and devote about five minutes each day to identifying three high points of the day.