Thank you for sharing!

Your article was successfully shared with the contacts you provided.
It was Shakespeare’s Dick the Butcher, in “Henry VI, Part 2,” who so notoriously declared, “The first thing we do, let’s kill all the lawyers.” Why have these lines leapt out of an obscure play to hang as a dark motto over the legal profession’s head? One answer comes from the rebel Jack Cade, who seconds Dick the Butcher with a wry comment on legal writing: “Is it not a lamentable thing … that parchment, being scribbled o’er, should undo a man?” In Jack Cade’s irony we can detect the poet’s envy and the citizen’s grudge. Only in the law do words carry both a declaratory and performative force potent enough to do a deal or undo a man; and only in the law do words undo their own power, turning on themselves in fits of opacity, earning the public’s distrust. Among other things, “legal writing” means the opposite of “illegal writing,” but for many people it also means the opposite of writing that is concise and clear. We lawyers greet such statements with a weary resignation that will no longer do. As we rebuild from the wreckage of the World Trade Center, one major recovery effort, both private and shared, must focus on regaining the power of speech. Besieged by events characterized as unprecedented, unforeseeable, and even unimaginable, some of us have been struck dumb. Being at a loss for words seems natural when we confront the loss of someone we love or try to console another in grief. But now the loss of words signals something more profound. Words are not just tools that we use to express ourselves and to communicate with others; words are what we use to think our way into and through a problem or idea. Our bonds to each other and our place in the world turn on how we use language. In no other profession is this reality more compelling than in the law. Before this column continues to offer practical advice about legal writing, it makes sense to reconsider what lawyers really have to do with words. Our primary task as lawyers is to bring a sense of order and fairness to human affairs. Dealing with people and things, and the relations between them, requires putting our ideas into words and putting those words on paper. As a rule, law must be written before it can be done. As a result, no matter what your training or department, as a full-time attorney, you are now a full-time professional writer. TWO CHALLENGES Awareness of this reality can be daunting, because writing in the law is so challenging, in at least two senses: It is demanding and inspiring on the one hand, while on the other, beset with woe. Let’s start with the woe, building out and up from there. Obstacles to writing well first emerge in law school, where training in writing seems to carry little value. Courses in “legal writing” too often wind up as the orphans of the curriculum. Characterized as a skill, writing is taught apart from the “substantive” courses and staffed by instructors with limited experience, low salaries, and no hope of tenure. In many law schools, dedicated students or adjuncts still perform the crucial function of commenting on student papers. Meanwhile, casebooks and other law school texts come loaded with the products of less than gifted writers. Few judges are elected or appointed to the bench on the basis of a writing sample, and in the face of court backlogs, few judges have the time to revise and edit their work carefully. For help, some judges can turn to their clerks, but especially on the federal level, most clerks have never practiced law, and their writing experience is limited to what they learned in first-year courses and what they suffered on law review. As a result, for three years in law school, we do little writing of our own, while having to ingest a significant amount of bad writing by others. Once we land a job, the chances to strengthen our writing rarely improve. Many law firms recognize that new associates need an academic detox program, but meaningful training in writing is hard and costly to do. Writing is not a skill, but an art that involves habits of mind. It cannot be taught through imitation or the sharing of specific information. Nor do the conditions under which we work encourage careful, vivid writing. Rules passed on by writing instructors or journal editors soon collapse before the onslaught of multiple deadlines and the multiple expectations of an audience that can include a partner, the client, opposing counsel, and the district court clerk. Trying to write well can be even harder when we find ourselves on a deal or litigation team, assigned to one fragment of a giant case. Under such circumstances, how do we gain an understanding of the purpose or significance of our work? How do we manage to hold on to the sound of our own voice? Those of us who survive stressful working conditions still have to contend with negative attitudes. Dick the Butcher was hardly the first or the last to register the public’s distrust of the bar. It hurts to know that those who rely on us to define and defend their interests sometimes doubt our integrity because they cannot understand our words. Perhaps more damaging than public opinion are our own self-inflicted stigmas. “What I do is not really writing,” a corporate associate once said to me. And more recently a friend complained, “What’s the point of trying to write well? Where I come from, you either dumb it down for the SEC or numb it up for the partner.” To withstand these bad vibes we can call upon more disciplined frames of mind, but some of these can wind up putting us in boxes. For example, much of our training and experience has taught us to write documents that present a set of arguments designed to validate a set of propositions. Such documents exhibit little doubt and little sense of shared inquiry. Our readers are simply expected to absorb the arguments, refute them if possible, and otherwise bow to their force. Early in our careers, when impressions cut deep, we often find ourselves torn between a voice that refuses to entertain any conclusion other than the one compelled by its own reasoning and a voice hesitant to advance its own reasoning against the ranks of judicial or law firm precedent. Alert to many of these oppressive elements, a partner in a big firm recently wondered aloud about the fate of new associates: “If so much litigation relies on established precedent, and if so much transactional writing involves transposing the terms of one deal to another, how and when does the message get through that original thinking really counts?” With this question we can move from woes to wonders, since the reasons that writing in the law is so hard also spring from the challenges that inspired us to become lawyers in the first place. As lawyers we deal with the unruliness of human affairs in the light of rule-bound reasoning. For us, each case is not only new and different, it is unique. We are continually claiming or resisting certain meanings for our clients, drawing upon a host of different discourses: medical and economic testimony, ballistic evidence, the client’s own narrative, interpretations of regulatory language, arguments based on a recent opinion from the Appellate Division, Second Department, and appeals to common understanding in the most uncommon of times. Whether drafting the initial complaint or our summation to the jury, we often find ourselves on the borders between discourses that are so diverse they seem like foreign languages. To shape these discourses into a coherent whole requires the discipline of the scientist, the invention of the novelist, and the vision of the poet. The result is writing that is highly creative while always constrained by relevant authority and the material world. No one needs to remind us that the stakes are high. The resolution of vital social and personal problems turns on the accuracy and persuasiveness of our prose. With experience, we come to learn that what matters most is being able to handle a plurality of perspectives, rather than stubbornly refusing to bend except under the force of superior argument. Years ago, when the philosopher Richard Rorty offered the metaphor of conversation — in place of argument — to describe the endeavors of legal reasoning, he gained many followers. But Rorty’s notion of the work of law as a kind of conversation denies the social reality of law that involves its coercive force. As Chairman Mao might like to remind us, a revolution is no tea party; likewise, the disruption in lives and property engineered by judicial or legislative decree is no conversation. And if the legal system does present a conversation, for some it is a conversation in which they feel they have no voice and from which there is no exit. The paradoxical situation of all writers, but especially those of us in the law, is that we must try to express the radical untidiness of human commerce in language that is arbitrary and subject to form. Where a judicial opinion is concerned, no maybes are allowed and no deferrals. A complicated mass of intentions and results must be reduced to a yes or no decision: judgment Reversed or Affirmed. A MATTER OF STYLE Gracefully acknowledging such paradoxes gives rise to what Robert Oppenheimer has memorably described as “style.” Style makes it possible to act “effectively but not absolutely.” Style is the “deference that action pays to uncertainty,” and, Oppenheimer concludes, “it is above all style through which power defers to reason” (“The Open Mind,” p. 54). What gives a legal document this kind of style? Sometimes, of course, the power of the writing comes from the genius of the writer, something that cannot be imitated or taught. But good writing is not reserved for the titans alone. Writing with care and style mostly involves matters of craft that, with some self-discipline and a talent for the trade, any attorney can learn. No matter what kind of legal documents we draft, we do ourselves an injustice if we reject as too ambitious or high-minded the notion of lawyers as professional writers. We are more than mechanics in the shop of words. Legal documents obviously differ from poems, but Robert Frost’s memorable phrase about poets also applies to us lawyers who attempt “a momentary stay against confusion.” Knowing that it is a momentary stay, and not a permanent injunction, we can also make our momentary stab at eloquence and precision, along with other writers who strive to express the complexities of our lives in human-bound words. So the next time someone re-sounds Dick the Butcher’s cry, dare them to provide a citation for the lines, and go on with your revising. Jane B. Malmo, a former appellate litigator and director of legal writing at Georgetown University Law Center, is the writing specialist at Cadwalader, Wickersham & Taft.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.