Southerland, H P --- "English as a Second Language or Why Lawyers Can't Write" [2007] LegEdDig 51; (2007) 15(3) Legal Education Digest 44

English as a Second Language or Why Lawyers Can’t Write

H P Southerland

[2007] LegEdDig 51; (2007) 15(3) Legal Education Digest 44

18 St. Thom L R, 2005-2006, pp 53–76

For more than thirty years, I’ve spent a lot of time reading bad writing. By bad writing, I mean writing that fails of its essential purpose — so flawed in concept or execution that it can hardly inform, much less persuade. The writing is the sort that lawyers are routinely expected to produce: briefs, judicial opinions, essays dealing with law-related subjects, and the like.

The writing I am talking about is commonly referred to as ‘legal writing.’ It evokes images of the tortuous first-year obstacle course familiar to all — an obstacle course run for little credit and overseen by nontenure-track, second-class citizens called ‘legal writing instructors,’ whose impossible and largely thankless task it is to cram a bewildering array of research techniques, citation protocols, and analytical and compositional skills into the heads of students already overwhelmed by a heavy, equally bewildering load of substantive courses. These courses are intended to teach students to ‘think like a lawyer,’ whatever that odious expression means, and presumably to write like one as well. The second and third years of law school comprise almost exclusively substantive courses, and the writing most students are actually required to do consists largely of note-taking. What was learned in legal writing is soon forgotten.

The academy naturally has its explanation for this ineptitude. Most law students appear to have slept through the eleventh grade; they never learned to diagram a sentence. They gave up reading for television, video games, and other computer-driven diversions. There is undoubtedly some truth in all of this, but that fact should not obscure the root notion, which is that law students should have learned to write before coming to law school; if they did not, it is somebody else’s fault, and it is too late to do anything about it.

At some point, there is apt to be a shock of recognition: there are always two or more rules of law that have application to a case of any importance and that point in opposite directions. What they are left with, it seems, are only opinions and value judgements, dependent not on the logic of the syllogism or the analogy, but on the internal workings of judges’ minds — judges who are simply human beings and who frequently decide, whatever they say, on the basis of deep-seated intuitions of morality and public policy that are seldom voiced in the opinions and of which the judges themselves may not be consciously aware. It would be comforting if well-known and accepted rules were rigorously applied to the facts and some one-and-only conclusion reached as a result, but that seldom seems to be the case. Students are faced with a grim conundrum: why are cases decided as they are when they could just as easily have been decided differently? Law turns out not to be an exact science, but a complex political process in which there are no right answers, only value judgements.

They soon learn that it is a lawyer’s job to take whatever side of a case chance happens to deal him and to make the best arguments that can be made on that side. Any personal, individualised concern for what ought to be done, for perceptions of right and wrong, even for truth, must be subordinated to the task at hand. The facts — or what can be made to pass for them — have to be moulded into a plausible version of reality, and that version, in turn, made to seem more plausible than some other. For the rule-oriented student in search of certainty, all of this can seem surreal. Suddenly, the law stands revealed as just another human institution, as fraught with chaos, confusion, uncertainty, and politics as the world of which it is a part. Some students take to this inherent duplicity like ducks to water. But for others there is no place to hide, and for these, three years of law study is apt to be frustrating and disillusioning, more like a mandatory minimum prison sentence than an educational experience. They resent the inherent amorality of the law and its inability to bring order and certainty to an uncertain world, its insistence on answering every question with a question. Inevitably, their writing reflects their frustration, disillusion, and disappointment: it simply is not anything they want to be doing.

Legal education reflects the existing legal system, which in turn reflects the larger society. The idealistic students — at least those who do not expediently sacrifice principle to practicality along the way — understand very clearly that in writing something, anything, about the law, they more often than not are forced to fudge, hedge, dissimulate, or lie.

There is another more mundane way in which the culture of legal education exacerbates the difficulties so many students have with writing. Law schools train their students, quite literally, not to write. Apart from the first-year course in legal writing, crammed into the curriculum at the worst possible time, the typical law school experience requires almost nothing of its students in the way of writing. For more than a hundred years, law schools have trained their students in pretty much the same way.

This method of instruction has persisted for so long, I suspect, because those who teach in law schools and who control curriculum and methodology find it congenial. It is certainly economical. Imagine the cost of funding a faculty-student ratio of ten to one in most courses.

It is probably not fair to say that the faculties of law schools do not care about the writing abilities of their students, but it is fair to say that they do not care enough to do much about it. Scarce resources stand in the way; most of us are preoccupied with our own research and writing and cannot spare the time and effort required to grapple with the writing problems of students; and some are hardly competent to help even were they so inclined. It all comes down to a matter of priorities, and the ability of law students to write is far from the top of the list. Yet the fact remains that law is a house of words, utterly dependent on language.

Perhaps it is too late. The society which law and legal education reflect is unlikely to change that much. And it does not seem likely that the young people of today will abandon television or their computers and return to the once-common practice of reading widely. That leaves the law schools, with their deeply ingrained, complacent, ‘it’s too late’ mentality, as the last, best hope, at least for lawyers.

A law school is a professional school. It is in the business of training its graduates for lifetime careers as practicing lawyers, charged with the awesome responsibility of representing people who will have entrusted their lives, liberty, and property to their lawyers’ care. Law is among the most active of professions. Lawyers are always doing something; they are forever talking, negotiating, arguing, and writing, all in the service of their clients.

Almost all instruction in the first year — and much of it thereafter — goes on in very large classes. Students prepare for each class by studying about twenty pages in a casebook, very large texts which contain a collection of materials dealing with the subject matter of the course. For the most part, students sit passively, listening and taking notes. Not until the end of the semester are they tested on their grasp of the subject matter, and then by a single three- or four-hour examination. The practice in many schools is then to ‘curve’ the scores on these exams — that is, to place them under a bell curve and arbitrarily raise or lower them as need be to produce the statistically expected distribution — a certain percentage of As, a certain percentage of Bs, and so on.

Perhaps that is why there is not a lot of camaraderie among law students. They quickly come to understand that they have been pitted against one another in a deadly serious competition. Class standing becomes the measure of everything — not depth of learning, curiosity, integrity, diligence and hard work, or anything else. Law school will not, cannot, be an open sharing of ideas, a collegial learning experience. It is a foot race.

It is not easy to have given your all only to discover that your all was not good enough: that at your best you are only mediocre or worse. Some students, of course, ignore this labelling process and continue to work hard at learning as much as they can. But far too many resign themselves to two more years of the same mind-numbing thing until they can escape into the ‘real-world’ — a never-never land out there somewhere, where it is at least possible to believe that things will be different, and better. All these students really want to know at this stage is how little they can do and still get by.

The effect of this hallowed methodology is to reinforce the mentality of a student, not that of a professional. Mesmerised by grades, they cannot grasp the critical difference between being taught and learning. They sit passively, waiting to be taught — the familiar process in which an omniscient teacher ladles out wisdom and measures consumption by exams and grades.

I am left with this modest proposal. If implemented, I believe it would improve the writing ability of law students and perhaps indirectly other aspects of the law school experience as well. The most obvious, hence most often overlooked, thing you can say about writing is that it takes practice. Most first-year students quickly abandon the practice because it is too time consuming and because cans are readily available for moral support in case they are called on in class. Does no one point out to them that briefing cases is the process of actively engaging legal materials? That there is no better way to learn than forcing oneself to distil in one’s own words what a court did in a particular situation? With this technique students absorb more than legal concepts. They also absorb the language in which those concepts are expressed. Writing about these things steadily improves facility in using and manipulating that language.

One of the most valuable skills a lawyer can possess is the ability to distil a case to its essence so that the nature of the dispute and how it was resolved are clear, even to someone who knows nothing about the law. Students who practice this skill usually find that something remarkable happens. They find that their interest in legal materials is heightened; that they are more confident in their ability to deal with them; and that their ability to express themselves quickly and accurately has magically gotten better.

Most first-year students feel overwhelmed by the volume of material they are asked to digest and either cannot or will not take the time to brief cases. Instructors could pick just one case from each day’s assignment for written briefs. From these, they could select, say, ten, critique them both for substantive accuracy and writing technique, and return them at the next class. Then another ten, and so on. If this were done in all courses, students would not only be getting a lot of writing practice on an almost daily basis, but over the course of a semester would have the benefit of individualised criticism on twenty-odd writing samples.

For this strategy to work, a significant number of faculty members would have to subscribe to it and be willing to put in the time required to read and critique ten short papers after each class meeting — not, in my opinion, an unreasonable demand.

Good legal writing should strive for accuracy, clarity, and brevity. The importance of these qualities follows from the nature of the audience for whom such writing will typically be done. Readers will be overworked, and harried, and busy people — judges, senior partners, department heads, and the like. They are not reading for pleasure or entertainment, but because they have to.

Good writing strives to put no unnecessary obstacles in the way of agreement. By unnecessary obstacles I mean anything that irritates or distracts readers, that makes their task of reading, comprehending, and deciding more difficult, or that gives them cause to question a writer’s credibility.

As matters now stand, law students do not have to work all that hard, although I am sure they do not think so. But a major component is missing for most, and that is the discipline of words. We do not always want to say what we mean, but it is nice to be able to when the need arises.