Lawyer as Writer

Can Writing Be Taught?

A writing workshop must begin somewhere. But where?

Can writing, of whatever kind, legal or otherwise be taught? And how is one to go about doing it, even if we assume it can be done? And what are the student and teacher to do about the fact that we come to the writing we do as lawyers with all sorts of notions, ideals, beliefs, values, sentiments, and feelings? Coming to this workshop you are already a "writer." How are we to teach and learn the stuff that we already claim to know and to be?

Some skills are difficult to teach. I suspect they are difficult because they cannot be reduced to their "technical" components. If writing involves an element of character or what might be called virtue--it is called "voice" in the literature on writing--this element of writing cannot be learned or taught as a "basic" skill. Legal writing, legal counseling, and legal ethics all entail this element of character, and something we associate with virtue. In writing we know it as "voice." Ethics, for example, is hard to teach and learn because ethics is another name for character, and character requires virtue. I hold to the notion that writing, and learning about it, and doing it, is as much a matter of character as it is skill in the technical sense.You may find that you are mistrustful of teachers who claim that what others call skills must be learned as acquired character. Teaching character--at least "about" character--can be done, but it's not done without resistance.

It is an open question whether we can actually teach the kind of character that writing and ethics require. And it is for this reason, among others, that we should expect some uneasiness, if not outright turmoil, when we try to learn skills that embody a significant element of character.

It is not clear how one "learns" to effectively, persuasively, and evocatively, embody a language they already "know" into a written text, whether the text be a legal brief, a fictional short story, or a novel. About the only thing we agree on when it comes to writing is that so-called "basic" or technical writing skills can and should be taught. And what lies beyond the technical "basics"? Good writing. Strong writing. Effective writing. Persuasive writing. Creative writing. Writing that reflects the "voice" of the author. It is when we move beyond basics and begin to write and make judgments about "good" writing, that we distinguish between writing that is powerful and weak, clear and fuzzy, writing that reflects the author's "voice" and writing that is so impersonal that the author's "voice" is hidden.


Our writing seems to have been a rather long-standing sore point in the profession, and so troublesome to the lay public and politicians that they have sometimes attempted to mandate that we lawyers write in "plain English." The assumption is that it takes an act of law to compel us to write to be understood, to produce documents and texts accessible to clients and lay readers.

In legal writing texts that we use in legal writing programs, I find an intensive focus on the mechanics of writing, and even an effort at jurisprudence, but not much recognition of the many ways we come to be writers, and the varied, defensive, and fearful human beings that set out to make themselves proficient in legal writing. Legal writing seems unwilling to ask how we gain power with words, how we become curious about the use of technical and instrumental languages, how we use words as an ordinary skill of everyday life, and how this ordinary, everydayness of language use can be translated into a professional skill.

For the student, the story-depraved world of legal writing contends that you must give yourself over to a legal mind that can push the pen, watch the movement of the cursor, shape the thoughts, in pursuit of life-less words and formal arguments and pre-determined structure, all so that you can have your writing read as a lawyer. Is this any way to make writing central to your craft skills as a lawyer?

Much of my work in the last decade has focused on narrative. Legal narrativists are interested in writing because stories depend on writing, on the literary power of language used well. And we are interested in the intricacies of writing, writing techniques, figures of speech, writing that communicates, and writing that changes minds. We are interested in stories and writing because we are curious about lawyers and their work, how they reason through a problem, and how they put their reasoning to work in the language and writing they use.

As Steven Stark observes, we get cut-off from the best avenue for conveying the meaning of law when we forego the use of stories.

[A]nyone who writes about rules and not facts is going to have a difficult time composing an appealing piece. What intrigues most readers are stories about people; a story is usually the development of a character. For example, what would make the story in Erie v. Tompkins interesting to the typical reader is what happened to Tompkins, not what happened to the doctrine of Swift v. Tyson. But the legal writer must ignore the attractive part of a story and be content instead to discuss the application of rules in a way that tells lawyers what doctrines they should follow. Even Joan Didion would have trouble doing much within those constraints. [Steven Stark, Why Lawyers Can't Write, 97 Harv. L. Rev. 1389, 1391 (1984)]

Linda Edwards, a legal writing teacher suggests that as lawyers narrative may play a larger part in our work than we realize.

[T]he practice of law will require skill in both rule-based reasoning and narrative reasoning. Rule-based reasoning values rational, analytical thought, while narrative reasoning values creative, intuitive thought. The best lawyers learn to integrate rule-based reasoning and narrative reasoning so they can harness the power of each.

Because narrative reasoning is more dominant in our culture than rule-based reasoning; however, the traditional law school curriculum concentrates on rule-based reasoning to the seeming exclusion of narrative. And because thought process is so fundamental to identity, law school's emphasis on rule-based thinking can be disturbing. During the first year of law study, many law students wonder whether they are losing vital parts of themselves. It seems as if the ways they have always thought and reacted are not valued in the law and indeed that law study is requiring them to become different people.

If this sounds like your experience, do not be discouraged. Not only will these other parts of yourself survive law school, but they will be vital to practicing law. They will deepen your analysis and strengthen your persuasion. They will serve you in other important lawyering tasks too, such as counseling clients, working with witnesses, and other third parties, presenting oral arguments to judges and juries, putting together business transactions, and resolving disputes outside the courtroom. [Linda Holdeman Edwards, Legal Writing: Process, Analysis, and Organization xxiv (Boston: Little, Brown and Company, 1996)]

"[E]xperiment with different writing strategies and observe your own writing process. What works well for you at each stage and what doesn't? Do you work better if you dictate a draft first? Does free-writing help you? How about charts or colored pens? Each writer's creative and analytical processes are unique. Part of your goal in your first few years of legal writing should be to observe as much as you can about your own process so that you can adopt writing strategies that work for you." [Edwards, Legal Writing: Process, Analysis, and Organization, at xxiii]

A student's hope: "I hope that the study of the law does not sway me toward becoming a slick, facile writer, writing to a legal audience of superficial tourists. I fear becoming the equivalent of a commercial potter, a weaver of bad baskets, a professional in the worst sense of the word--one who goes over the hurdles readily and cleanly but with no real flare or zeal, a proficient hack. I hope to be a thoroughbred, to live life as an adventure, an art form."


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