The Importance of Legal Writing
In the practice of law, few skills are more important than legal writing. Legal writing is the way in which we communicate with our colleagues and with those outside the profession. It is how we make our arguments, how we persuade others of our conclusions, and is an essential part of presenting our work product.
Whether you are drafting a memo, a letter, or a brief, the writing you produce should be clear, concise, and compelling. No matter how brilliant your legal analysis, if that analysis is poorly communicated, it will not have the intended effect. Clear, concise writing is both more persuasive and less likely to result in misinterpretation. The less likely your writing is to be misinterpreted, the less likely it is that you will be dragged into an unnecessary dispute with someone who has misread your message.
In addition to being the way in which we communicate with those outside the profession, legal writing also has internal implications. Those who write well are consistently promoted. Conversely , those who do not write well are often left behind. Bad legal writing may be the number one reason why junior associates and young attorneys find themselves unable to make partner or receive a favorable performance review. Even non-writing assignments (bad billing practices, failure to meet deadlines) typically follow on from written communications. Drafting an improper memo can and has been used as a basis for termination. The bottom line is that those who do not write well often struggle to keep up with their more articulate colleagues.
In light of the importance of legal writing, many law firms, bars, and solo/consulting opportunities are looking for individuals with demonstrated legal writing prowess. In terms of firm promotion, it is rare but not impossible to find a moot court victory or law review article on a resume; but law firms generally want their young associates to have published legal writing samples. This is more or less the same for consulting opportunities.
Given that legal writing frequently serves as the first impression that clients have of young attorneys, the first serious questions that judges and jurors have about attorneys, and the primary basis for firm promotion, it is clear that this is an area that warrants improvement and attention.
The Hallmarks of an Excellent Legal Writing Guide
To truly understand the value that a book can add to your legal writing toolbox, you have to know what a great legal writing book looks like.
First and foremost, a great legal writing book is clear. The beauty of legal writing is that it is enormously practical. Writing well and persuasively isn’t a genetic characteristic. It’s a skill. Books should make that clear from the outset. And then they should proceed clearly and straightforwardly through how to write well and persuasively.
Second, a great legal writing book uses practical examples. Theory is terrific. But in the real world, clear, practical examples make all the difference. A great legal writing book should have tons of them. Lots and lots of concrete illustrations of good legal writing and bad legal writing.
Finally, a great legal writing book features expert insights. When evaluating a book, it helps to know the author. Establishing the author as an authority at the outset helps quality. And expert insights about the writing process add tremendous value.
Beginner-Friendly Legal Writing Guides
If you are just starting your legal career, you would do no better than to start with The Legal Writer. It has everything you need to know about writing in a law office. It covers structure, organization, logic, and just plain good English. I don’t know how many copies of this book I have bought over the years. I find something new every time I pick it up. While a nice complement to it is Thinking Like A Writer, the former gives you a basic course in legal writing.
I previously recommended this book in my top ten books on writing legal briefs. I find it even better as a writing guide for those lawyers and writers who deal with issues other than appellate briefs.
Many appellate briefs today depend on some kind of standard language or template. This may be well and good, but it can also harm the process by burying the lawyer’s thinking under a mountain of recycled words and stock phrases.
If you were to ask me to name only one book to read, this book would be it. It is a little dated, but the essential issues remain the same. It will stretch your mind and help you with issues of all types, not just those that arise in appeals. The book looks at logic, analysis, persuasion, and writing. For those just starting out, it provides a fine introduction to the whole of legal writing.
All three of these books can help a new lawyer develop the discipline to write. But no book will replace experience. Every day in practice you will learn something new, both from your clients and the responses you get to the things you write.
Expert-Level Legal Writing Materials
Advanced-level legal writing books are for seasoned legal professionals who wish to take their writing skills beyond the fundamentals and enhance their legal writing to an even greater degree. Though there are fewer advanced-level legal writing books than essential-level legal writing books, that does not detract from their value. Here are some highly regarded and largely recommended advanced-level legal writing books:
- Richard Chetwynd, Legal Writing: Getting It Right and Getting It Written, Fourth Edition (American Bar Association 2005). – Totally updated and expanded 4th edition of the classic book used in countless law schools.
- Kim Lewison & Amanda Millar, A Practical Guide to Legal Writing (United Kingdom Law Society 2003). – Explore legal writing in English in this highly informative and instructional text.
- Robert J. Bates & Roger W. Cramton, Understanding Lawyers’ Ethics. (Lexis Law Publications 2000). – A comprehensive survey of disciplinary systems in the US and around the world.
- Robert Lanham, The Lawyer’s Essential Guide to Writing Well (Pacific Law Books 2005). – This easy to read, practical guide will definitely help lawyers become better writers.
- Louis Mirando & Patricia Hughes, Getting the Words Right. (American Bar Association 2009). – A quick and easy, practical guide that covers everything a busy attorney needs to know to draft high-quality legal documents.
- Philip C. Kissam, Shaping Legal Language: More than 50 Ways to Clarify Legal Writing. (William S. Hein Co. 1999). – This 2nd edition manuscript offers timesavers and tips for improving legal writing.
- Lisa___,. Li, Demystifying Legal Writing: A Practical Guide to Clear and Persuasive Briefs, Motions and Memoranda. (Thomson Reuters 2010). – Dedicated to the proposition that all lawyers should be able to write well, this book contains practical guidance for achieving clear, concise, comprehensive and compelling legal writing.
Legal Writing Books for Specific Practice Areas
Going a step further, after you get comfortable with the basics – the general writing tips that apply to every area of law, consider these books, which are more tailored to specific practice areas:
Corporate — The Corporate Kit for Dummies (ISBN: 1118015020):
This book is designed for people starting a business from the ground up — and that often includes outside counsel. It covers all aspects of starting and running a corporation, including:
Criminal — Gideon’s Trumpet by Anthony Lewis (ISBN: 0814606197)
Written in 1964 , this book has stood the test of time as the leading account of a huge turning point in the court system — Gideon v. Wainwright. This Supreme Court decision led to the right to court-appointed counsel for criminal defendants.
Employment — Representing Plaintiffs in A Discrimination Lawsuit by Steven F. Bender (ISBN: 0314212709)
If you’re interested in employment law, this book is a must. Published in 1993, it’s still used by many litigators — and can give you a good idea of what’s involved in a discrimination case.
Intellectual Property — Practical Guide to Intellectual Property Issues (ISBN: 1405161531)
Unless you’re a specialist, this one’s going to be more useful as a reference than a guide. But if you run into intellectual property issues regularly, it’s worth owning.
Top Legal Writing Authors to Follow
Peter Martin and David Frost. The new 4th edition of Guidelines on Style and Usage in the Judicial Branch, published August 1, 2018, is a great treatise on judicial style, much of which is applicable to legal writing in general. Peter Martin, who unfortunately passed away this year, was a renowned legal writing professor and specialist in legal writing. David Frost has taught legal research and writing for several years at the University of Oregon School of Law. Along with other professors from the University of Oregon School of Law, they have updated and revised the book, which is published by the federal judiciary.
Bryan Garner. He is the go-to guy on plain English writing. Garner, a professor at Southern Methodist University Dedman School of Law, has written several books – including How to Write Short: Word Craft for Fast Times, Legal Writing in Plain English, and Modern Legal Drafting: Clearer Rules, Better Contracts – that go a long way in making good legal writing simpler. He also publishes a monthly newsletter called the Garner on Language that is a great source for tips on how to do better writing, including legal writing.
The late Wayne Schiess. The former Texas legal writing professor and current freelance writing consultant wrote Writing with Clarity and Style: A University Professor’s Guide to Rhetoric and Modem-day Style, in which he emphasizes clarity and persuasion, and provides practical advice. Even though you can see some of his political leanings through his writings, he comments, "I also believe in increasing the quality of the legal product delivered to clients: more clarity, fewer errors, more persuasive writing, and better service. I believe in using our precious resource of time wisely, efficiently, and even creatively. Every writer can increase the quality of her or his writing, and practicality is no substitute for clarity . . . What is a lawyer’s chief stock in trade? To persuade." (Schiess, p. xii).
Bryan Garner and Mark Herrmann. Their fable, The Curmudgeon’s Guide to Practicing Law, is a humorous story about a young lawyer who finally decides to take the advice of his mentor and turn off his gadgets, stop multi-tasking, cut back on E-mail, not look at the Internet, stop texting and instead, pick up the telephone. Through the experiences of the lawyers in the fable, the authors explore such topics as keeping your focus, managing your time, and encouraging your clients to think through a problem before calling you. Although this may not seem to be a book on legal writing per se, it does a great job in educating attorneys about the importance of knowing your audience and thinking through a problem.
Bryan Garner. The founder and editor-in-chief of Black’s Law Dictionary and a leading authority on legal writing, is an excellent resource. His most recent book is Verbal Bluebook: A Manual of Technical Style for the Legal Professional.
Identifying the Right Material for You
Not every book may be appropriate for you and your experience level. Consider your area of focus and choose accordingly. There is much overlap in law between different practicing areas and even more intricacies when it comes to writing. If you are an experienced attorney with a specific niche, it may be best to choose a book that covers the nuances of that particular field. Likewise, if you are a new attorney or law student interested mostly in writing for criminal law, it is probably better to pass on any civil law or general writing books you may have stumbled across.
Pay attention to the author’s background and credentials as well . Understanding where the author has practiced, where they have taught and what they have published can help you determine whether their writing experience is relevant to you. For example, Matthew Butterick does a tremendous job distilling his knowledge and has an excellent resource on the topic, but his background is mostly in intellectual property law and he is, at least in his writing, representing a different audience than federal litigators.
Finally, check to see if the book you are considering has received accolades or awards. If a book has won an award in any capacity, it is likely a good choice. With something as sensitive as legal writing, you cannot be too cautious. Don’t just take my word for it; do your research before spending (money or time) on a book.