English Grammar and Usage, Small Law Firms, Solo Practitioners

What Is The Most Important Element Of Legal Analysis?

Keith Lee

Because I’m a glutton for punishment (I’m writing for ATL aren’t I?), every now and then I will trawl through SSRN to see if there is anything worthwhile to read. Usually there isn’t. Mostly it’s stuff like Harry Potter and the Law or whatever. It can be hard finding substantive, interesting material to read among the cruft. The other problem is that the authors are publishing articles in law reviews — which no one reads. It’s far better to submit an article to a blog (or set up your own), if you really want to reach people. I gather the point is not to be read, but instead to have an extra line on your résumé. But I digress.

I stumbled across an older (2003) article on the perceptions of various members of the profession on the writing skills of new lawyers entitled How Judges, Practitioners  and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study, by Susan Hanley Kosse and David T. Ritchie.

It is a rather broad study covering a number of issues that arise from the quality of legal writing among new lawyers. In particular how established members of the profession view the writing skills of new lawyers. So how did they fare?

Uh… not good. Asked to select common problems from a list of options, these are the problems most frequently cited by all those surveyed:

The survey the went on in an attempt to break down the elements of good legal writing. Of course, that’s a flawed premise from the start as people have different ideas as to what qualifies as good legal writing. Even further, I would propose that the premise of good legal writing is flawed. As others have pointed out, the focus should be on good writing period.

Yet I did want to break out what was perceived as the most important element in legal analysis. Read the below and choose what you think is the most important element before you read the results. The options provided in the survey were:

  • Distinguishes between authority
  • Defuses counterarguments
  • Substantiates all statements
  • Decision appealed from supported/criticized
  • Weaves authority
  • Uses precedential facts
  • Harmful cases are distinguished
  • Policy arguments are made
  • Rules set out before facts

Made your choice? Survey says…

Weaving the entire body of authority into the writer’s argument to give the reader a clear understanding of the applicable body of law was universally ranked as the most important element of legal analysis. Essentially, back up your arguments in a cohesive fashion. Supporting authority should not be tacked on at the end of a dense factual paragraph or the end of a section, but instead seamlessly weaved into the overarching structure of your writing so that the reader can clearly understand why authority supports your position and arguments.

Did you agree with the survey or did you pick a different element?

Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him at keith.lee@hamerlawgroup.com or on Twitter at @associatesmind.

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