Legal Writing

I occasionally take advantage of my little megaphone here at Above the Law to vent about poor quality drafts. When I do, “commenters” or correspondents routinely suggest that I’m tilting at windmills: “If you receive a poor quality draft, send it back to the person who wrote it, and tell that person to make it better. There’s no reason why you, Mark, should be saddled with improving the thing.”

Wrong, wrong, and wrong again!

I’m absolutely saddled with improving the thing. It often makes no sense at all to return a bad draft to the author and ask for a better draft. In fact, I submit that there are only two situations in which it does make sense to ask the original author to improve a draft . . .

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Ah, the Bluebook. Some people love it, but even more people despise it. If you ask my colleague Elie Mystal about the Bluebook, he’ll tell you that it’s the only book in the world he’d actually consider burning in public. Even federal judges hate the Bluebook. In fact, when we held a poll about whether use of the Bluebook should be abolished, 51% of our readers agreed that it should be banished.

All that being said, is it any wonder that a student from a law school in Virginia is raging against the law review’s upcoming Bluebook exam? Several law students have written to us about this student’s “guerilla campaign” against the school’s annual exercise in “academic hazing,” and they have even provided us with copies of this kid’s manifesto. (Yeah, he’s got one.)

Who is this revolutionary, and why does he think the school’s Bluebook exam needs to go?

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Here’s my thesis: We create rules to hedge against ineptitude, and we thus institutionalize mediocrity.

Here are the examples. First, someone — the Administrative Office of the Courts? God? — creates rules to hedge against incomprehensible judicial opinions, and we thus discourage judges from writing exceptional opinions.

When new federal appellate judges attend what is affectionately called “baby judges’ school,” the judges are told how to write opinions. An opinion should have five parts, the judges are told: An introduction (which does not have to be preceded by a separate heading); a statement of facts; the standard of review; the legal discussion; and a conclusion.

Do we impose these rules because every judicial idea is best expressed in this format? Of course not. These rules impose a basic organizational structure on decisions, so that even the worst appellate decisions will be marginally comprehensible. The rules hedge against ineptitude.

Most judges follow the rules, and society generally benefits; we understand most of what’s written. I suspect that many judges who would be capable of writing better opinions if they were not bound by the rules nonetheless choose to constrain themselves, opting to do as instructed. Society may suffer in those situations, because the opinions are not as well-crafted as they might otherwise be.

A few judges ignore the rules. Whatever your politics, for example, you probably agree that Judge Frank Easterbrook often writes great opinions; he regularly ignores the mandatory structure. (This isn’t a high crime or misdemeanor, so he’s safe.) We don’t complain when Judge Easterbrook strikes out on his own, because readers understand what he’s saying and often delight in how he expresses himself.

On the other hand, if Judge Nobody were to strike out on his own, the law might become a muddle. We try to control that judge by imposing a structure. Bureaucratic rules discourage greatness, but they hedge against ineptitude.

Here’s a second example:

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week, we discovered that roughly six percent of our readers use — and will continue using — the word “irregardless,” despite the fact that it isn’t a proper word. Please God, make it stop.

Speaking of God, that brings us to this week’s topic: because people are so easily offended, should lawyers strike the term “act of God” and use the phrase “act of nature” instead?

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Suppose your firm has one incompetent partner, and our joint has the misfortune to be working with that person.

This guy consistently misses important issues. He sends us briefs that read (as did one draft I recently received): “In response to ALR’s motion to dismiss the OC, [plaintiff] added an allegation in the FAC that . . . .” We comment, over and over again (as we did recently), that briefs on our behalf must be written in English, not gibberish. Even if you’ve set up short forms, no reader sees “OC” and “FAC” and thinks “Original Complaint” and “First Amended Complaint.” Use words, not alphabet soup.

To no avail.

We suggest that the partner include on the litigation team a gifted writer (because we’re too nice to suggest that the partner include on the litigation team “a lawyer who’s worth a damn”). But nothing ever changes; the partner never hears us. Confronted with an avalanche of criticism and suggestions, no law firm partner has ever said to us, “Why, thank you. Now that you mention it, I realize that I am in fact inept. To better serve your legal needs, I’ll replace myself with a real lawyer.”

No, no, no. Instead, the partner continues to send us bad briefs, making the same mistakes over and over, but seemingly thinking that we may not care the next time around. It’s Einstein’s definition of insanity: “Doing the same thing over and over again and expecting different results.”

Up to that point, the fault is the partner’s. But then I personally make two mistakes….

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week’s vote was extremely close, but 51% of our readers thought that the Bluebook should be abolished. With the fall semester drawing to a close and brief deadlines approaching, we think that law students definitely had a hand in the outcome.

This week, we turn to a question of grammar. Have you been using the word “irregardless” instead of “regardless”?

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week, we found out that only 29% of our readers lie back and think of England when dealing with punctuation and quotation marks. Makes you proud to be an American, doesn’t it?

This week, we turn to a hotly-debated issue among legal professionals: the use of the Bluebook. At least one federal judge hates it, joining hundreds upon thousands of law students to date.

Should we consider putting the Bluebook on the backburner in our legal writing?

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In last week’s Grammer Pole, 60 percent of you supported forming the singular possessive of a noun ending in “s” by adding an apostrophe followed by an additional “s” — e.g., “Kansas’s statute” rather than “Kansas’ statute.” In this debate, you sided with Justice Souter over Justice Thomas (based on their dueling approaches in Kansas v. Marsh).

Today we call upon you to choose between nationalities instead of Supreme Court justices. When it comes to the placement of punctuation marks in relation to quotation marks, do you favor the British approach or the American approach?

Let’s review the differences….

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of English grammar and usage over to our readers for discussion and debate.

Last week, we found out that 52% of our readers thought it was acceptable to end a sentence with a preposition, but with the caveat that it should be avoided if possible. That’s pretty wishy-washy, folks.

This week, we’re going to focus on an issue with a supreme split in authority, and you’re going to have to choose one side or the other. You’re going to pick Clarence Thomas’ side (you’ll soon see why we wrote it that way), or you’re going to pick David Souter’s side, but that’s it. Ooh, that’s a little possessive….

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In last week’s Grammer Pole, you voted to overwhelmingly approve the use of split infinitives. Fifty-three percent of Above the Law readers said that splitting infinitives is acceptable, even if it should be done sparingly. An additional forty percent said, “Yes. It’s great to liberally split infinitives!”

This suggests to me that ATL readers are a pragmatic bunch when it comes to language. You’re not hung up on hoary rules that don’t serve a practical purpose in communication.

I think I can guess, then, what you think of the injunction against ending a sentence with a preposition….

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