If you’re a law student or lawyer, you know that writing is a lawyer’s stock-in-trade. This is true whether you work at a law school (as Dean Amar does) or at a law firm (as Julie does). Some legal professionals report that it’s difficult to find newer lawyers with good writing skills. This perception may be unfair, but some see a widening gap between how smart newer lawyers are today and how well they communicate in writing.
As a result, many law schools are working to help junior lawyers write better. The University of Illinois College of Law, for example, is devoting time and energy into beefing up first-year and upper-division writing offerings and integrating writing throughout the curriculum. Legal employers (like Schiff Hardin) are also investing in developing writing skills.
But how can we improve legal writing on a larger scale? That’s a big question, but here’s a starting point. While we know that legal writing draws on the analytical skills lawyers are already developing in other ways, becoming a good writer also requires something else: it requires lawyers to integrate “soft skills” alongside their “hard skills.”
When we were in law school a long (long!) time ago (at Yale and at the University of Chicago), no one discussed soft skills. The term “emotional intelligence,” an essential soft skill that refers in part to good communications skills, was not yet widely known.
Now it is. And lawyers must use their soft skills along with their hard skills in many contexts. Take negotiations, for example. Lawyers must understand the law, know the facts, and assess their client’s interests, to know whether to play hardball or take a gentler approach. But they also must interpret the signals that the other side is sending to understand the emotional and economic issues that may be motivating that party. It takes the soft skill of learning about and gauging an audience to do that.
Legal writing requires a similar blend of hard and soft skills. The hard skills associated with legal writing include the ability to research deeply and widely; to think flexibly and creatively about how the law relates to the specifics of a case; to organize, sequence, and defend points logically; and to choose words precisely and present them grammatically. The soft skills associated with good legal writing let you see your writing from your reader’s perspective. Here are some suggestions the two of us have found helpful:
Write An Introduction That Does Its Job
The goal of written legal communication is for the reader to understand what is in your head (and to agree with you). To appreciate what the reader needs, you need distance from your writing. (This is why there’s no substitute for sleep between writing and editing). Your first chance to draw a reader into your thought process is your introduction, which is why everything you draft as a legal writer, including memos, briefs, articles, or exam answers, should have an introduction. Figure that you have 30-60 seconds to orient your reader and provide that reader with your perspective.
First, preview where you are going. In a brief, that means telling the court on the first page what you want and why you should get it. In a memo or article, it means telling your reader up front what your ultimate conclusions or prescriptions will be. After that, roadmap or outline what comes next (e.g., identify the main points of your argument or analysis). If you do these two things, your reader will be prepared to read and understand the rest of your document.
Organize Your Points With Both Logic And Your Reader’s Interpretive Processes In Mind
To organize your document, use your emotional intelligence. If your legal writing has an intuitive organizational structure (alongside a logical rigor), your argument or analysis will be easier to absorb. If, as a law student, you are making two arguments in your trial brief, think not just about whether one comes first logically (maybe a procedural argument before a substantive one) but also about whether one seems intuitively to belong first (maybe a stronger or more sympathetic argument before a weaker or more controversial one).
Relatedly, use your headings to propel your reader through the document. Headings telegraph where you’re going and make long documents manageable. Our general rules of thumb (suggestions, not requirements) are that 1) you should include a heading at least every three or so pages; and 2) your headings shouldn’t run longer than two lines. If you’re having trouble following these two guidelines, you may need additional headings or subheadings to map out and break up your argument or analysis.
Follow The One-Read Rule
Readers will more likely be with you if they know you respect them, so do not slow your readers down by confusing them. Your goal should be that your document satisfies the one-read rule: your reader can understand what you’re saying the first time through.
In this vein, try to start most sentences with short, concrete subjects. That means things like “the plaintiff,” “the Court,” or “the claim.” Not “the plaintiff’s allegations on information and belief.” If you use a simple-to-understand, concrete subject, you will likely follow it with an active verb, which will help your reader understand your point without rereading.
Precision also helps. Precision can be challenging for newcomers to the law, who may not understand that “should” and “may” have different meanings and that words like “negligence” are legal terms of art. Avoid fuzziness by choosing your words carefully and by employing specific legal terms (though not “legalese”) where helpful.
And, of course, shorter sentences are easier to process and grasp. Use the word-count feature on Word and shoot for sentences that average about 25 words and that rarely, if ever, exceed 40 words. Make the first sentence of each paragraph shorter still -– perhaps around 15 words. That will help your reader painlessly “enter” the paragraph. Also, your paragraph-starting sentences should serve as effective transitions; if your reader reaches forks in the intellectual road, you (the guide) must communicate the direction to take and show how that direction relates to where you just were.
Be Mindful Of Your Reader’s Time
Think of how much content (both work-related and fun) is out there. Do not assume you should use the entirety of your page limit. Rather, look hard at your document to see where you can shorten it without sacrificing important substance or effect. Analyze each point, each sentence, and each word to ensure it belongs. One suggestion here, though: write out your complete analysis or argument before you edit for length. If you start with a draft that is overinclusive, you will have the raw material you need before you take a step back and cut.
Our bottom line: If you focus on both your soft and your hard skills when you are writing, you’ll be thinking about the legal writing process in the right way. And you’ll become an effective communicator.
Vikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at amar@illinois.edu.
Julie S. Schrager has worked as Schiff Hardin’s in-house legal writing coach for almost twelve years. In that role, she works one-on-one with the firm’s summer associates, associates, and partners to improve their legal writing skills. She also hosts workshops addressing common legal writing challenges, including writing persuasively, writing for business development, and revising and editing your own work. Julie also participates in Schiff’s recruiting efforts by hosting writing workshops for 1Ls at law schools around the country and through diversity programs.
Julie graduated from Harvard College in 1986 and the University of Chicago Law School in 1989. After graduation, she worked as an associate in the litigation and legislation practice areas at Arnold & Porter in Washington, D.C. and as an Assistant United States Attorney in the Civil Division of the U.S. Attorney’s office in Boston. Julie taught legal writing full-time at Chicago-Kent College of Law for several years and continues to teach there periodically.
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