Find and use the best models of legal writing

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"Find and use the best models of legal writing"1
by Garner, Bryan A2
To learn any skill, you need good models. For example, you can t learn to
paint well without studying the, work of good painters. You can t learn to
play the piano well without watching and listening to good pianists. You can't learn to
manage a soccer ball on the field without seeing good soccer players. And you can't learn to
write well without closely observing the work of good writers. Mere observation isn't
enough, of course--copious practice is also necessary--but it's surely a prerequisite.
Legal writers face unusual hurdles not faced by those seeking to master other skills. You
see, it's no trouble to find out where to look for good paintings, good pianists, and good
soccer players. No one is likely to be misled. And it's not hard to find good writers, either.
But in legal writing, things get tricky. If you're looking for a model research memo, motion,
brief, or contract, where do you go? If you go to just any senior lawyer, even in a major firm,
and ask for an example of the last such document the lawyer prepared, odds are slim that
you'll get a model worth following. More likely, you'll see a document with many blunders
that expert legal writers would disapprove.
Why are good models scarce? Because in law we've had bad models for a long time, and in
our precedent-bound field they tend to persist. Even our very method of legal education-using the casebook method of teaching mostly from old, poorly written judicial opinions-tends to send lots of misleading messages to each new generation of law students about
what a legal document should look like. That's a pervasive problem.
But finding particular models of excellence can also be a real problem. Some years ago, one
of my professorial colleagues at a law school where I was teaching audited my upperdivision course and saw that I showed my students examples of first-rate research memos.
He also noted that I was critical of the sample memos in most first-year legal-writing texts.
He took me aside and said that in the first-year writing program at that particular law
school, the professors were carefully avoiding showing the students examples of good
memos for fear that they'd slavishly copy the format. The advice to the students was to
research well, think it through, and write it up clearly. Now go do a research memo!
That's hardly useful advice. Law students need models. They need to see what a good
Student Lawyer 36.7 (2008): 14+. LegalTrac. Web. 5 June 2011.
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2 Bryan A. Garner ([email protected]) is the author of many books on legal writing,
including Legal Writing in Plain English and The Elements of Legal Style. He is also editor in
chief of all current editions of Black's Law Dictionary. To see video clips from his interviews
with judges, visit www.lawprose.org.
1
executive summary looks like, with a question presented and a brief answer--not the
typical meandering, unchronological question presented but one that can actually be read
and understood by any intelligent reader in one reading. They need to see a statement of
facts that is neither too sparse nor too detailed. They need to see how the body of the
memo states the law, develops the analysis, and applies the law to the facts at hand to
prove the conclusion that was stated clearly on page one. And they need to see several
strategies for closing well.
Newly minted lawyers also need to see samples of good motions and briefs. But as I say, a
search through files at a law office is likely to turn up nothing but mediocrity--documents
with a fair amount of credibility-destroying legalese, slow windups, slow deliveries,
confusing factual statements, weak analysis, and rote conclusions. I know this because I see
these documents week in and week out in law firms and legal departments all across the
nation.
On the transactional side, the problem is even worse. Most forms are riddled with
fundamental shortcomings that can have serious consequences down the line: poor
organization, inconsistently stated duties, insufficient headings, prodigious amounts of
vague and ambiguous legalese, improper punctuation, confusing design, and so on. All
these things detract from the substance of contracts and other types of legal instruments.
Worse, they can lead to needless litigation.
The problem, then, is finding good models. Where should you look for them? Here are my
recommendations.
For the most immediate concern for readers of this column, you need some model exam
answers for law-school courses. The best resource now available is Charles R. Calleros's
Law School Exams: Preparing and Writing to Win (2007). Get it and study it.
If you work on a law journal, you'll need to see excellent, readable legal scholarship. The
answer here is pretty easy: get a subscription to The Green Bag (www.greenbag.org). Here
you'll find some of the best, most interesting legal articles anywhere to be found. It's a law
review that defies most law-review conventions. You'll actually enjoy reading it. And while
we're talking about legal scholarship, I should recommend the best book on the subject:
Eugene Volokh's Academic Legal Writing (3rd ed. 2007).
For several other types of legal writing, The Green Bag Almanac is your best choice.
Published for the last three years, it gives awards for excellent legal writing of various
kinds, including short pieces in law reviews, long pieces in law reviews, op-ed pieces,
judicial opinions, briefs, motions, and books. The almanac reproduces most of the winning
pieces in full, and all the nominated works are listed as recommended reading. It's an
extraordinarily useful compendium of good legal writing--and it comes free with your
subscription to The Green Bag.
For briefs, there are outlets many legal writers hardly ever think of. Have a look at the
solicitor general's website (www. usdoj.gov/osg/briefs/search.html), which contains every
brief the SG has filed in the federal appellate courts since July 1998 and selected briefs
going back to 1982. Mostly, the briefs are astoundingly good--on the whole, markedly
superior to what other lawyers file in those courts. Also worth reading are any Supreme
Court briefs you can find by Walter Dellinger, Miguel Estrada, Theodore B. Olson, or Evan
M. Tager; you can find them on Westlaw and Lexis.
It's much harder to find standout exemplars of research memos, motions, and contracts--I
mean actual examples prepared by practicing lawyers, as opposed to law-school exercises.
Yet these are the types of documents that new lawyers are most likely to need to prepare.
For these types of documents, books are the best resources. In The Redbook: A Manual on
Legal Style and in Legal Writing in Plain English, I reproduced some of the best practitioner
memos, motions, and contracts that I've been able to find in two decades of collecting, after
examining thousands of examples within each genre. It's a shame that I can't point to other
resources--certainly I couldn't find any online ones--to provide additional worthy
specimens.
A final tip: once you start practicing law, actively maintain files of exemplary documents.
Whenever you see an especially effective motion, brief, or contract--or whatever you
happen to work on--add it to your collection. Add and cull from time to time, upgrading
your collections. And when you come to write a new document, look through your files for
ideas about how to approach the subject. In time, you'll find that you've created an
invaluable resource for yourself.
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