What makes for good legal writing?
Let me preface by saying that if my Writing teacher from first year of law-school stops by this blog somehow, her reaction would be, “What the hell does this dude know about writing?” Minus the dude part. I did not perform well – grade wise – in that class.
I’ve come across the same link to the same promotional article for a lawyer’s guide to writing today. That doesn’t necessarily mean that this is a hot book, just that it seems to be marketed well. Or, I have too many legal marketers on my twitter feed and not enough substance. Either way, I’ve thought a lot today about lawyers and writing…mainly because, hey, that’s what I try to do here!
Oh, and in case you’re wondering, nope, we’re not going to talk about the “Lawyer’s Essential Guide to Writing” written by Marie Buckley. Sure, the links promoting that book got me thinking, but, I haven’t read the book and don’t know the first thing about what kind of legal writing techniques she is going to preach.
I don’t know if I’ve ever really considered myself a good writer. At one point in time, I loved to write. I attempted to write a novel, even. I studied journalism for my undergrad degree. But, I went to law school in part because I realized maybe I wasn’t as good as I wanted to be when it came to writing. I write this blog for the main purpose of trying to restore that love of writing. Sure, I may occasionally write a piece on here that is informative and helpful. But, for the most part, I’m going to write for myself.
Now, while I’ve said that I never considered myself a good writer, I do consider myself a good writer for a lawyer.
Which certainly would fly in the face of the training I received in law school. Which, generally, hated my writing. I did write a paper for Animal Law about sharks in my third year that was all-around awesome and the grade was reflective of such. But, that was the exception when it came to writing Briefs or motions. For the sake of this, exam writing would be excluding.
My trouble with legal writing in law school, and what I think is probably the norm with what makes bad legal writing is the way it gets taught. What was taught to me was IRAC…Issue, Rules, Analysis, Conclusion. For those that didn’t go to law school (Hi mom), that means that the memorandum/paper will move from Issue to Rules to Analysis/Application and ultimately to the conclusion.
To me, this creates bad writing.
You can’t teach writing based on boiling legal problems down to an equation, which is what IRAC attempts to do. Simply put, IRAC is a crutch for those that can’t argue. Meaning, IRAC does a decent job of turning someone from a bad legal writer into a passable legal writer. And, I guess, at the end of the day, when someone is practicing law, that’s all that matters. But, people shouldn’t fool themselves into thinking that IRAC is going to lead them to good writing. Law School doesn’t care about good writing, because they are trying to teach writing to everyone.
Good Writing is about emotion.
It may sound silly, but, I believe it. Good writing crafts a narrative out of whatever your given situation is. And, it seems silly to think that this will lend itself to a rigid formula. Every argument is different. Where you sprinkle the Rules and Issue into the Analysis to reach the Conclusion is a thought process that every writer should have. My law school experience attempted to remove that sort of thought process. I didn’t take to it well. I went in to law school thinking that writing was a strength. After my first year, I was broken in terms of my confidence in this regard. It took time to build that confidence back up again.
If you’re a good writer, you’ll have no problems moving away from IRAC and learning to persuade without training wheels. I’d also be willing to guess that most people writing outside of the IRAC formula will find a new confidence in their writing. Just write. Writing outside of comfortable barriers can be overwhelming, but, you have to trust your instincts that you know your clients story better than anyone else. Of course you’ll find that sometimes that slips into IRAC. IRAC is a formula that takes you from bad to passable for a reason. But, I believe it only gets you so far.
Good writing will come from traits that you learn from…GASP!…good writing! Foreshadowing, character development, plot and on and on. You know the strengths and weaknesses of your case better than anyone. Don’t handcuff yourself. Explore how you can best tell your story.
Tell the story you want to tell. Tell the story your client needs you to tell.