For those who find the secondary (or historical) literature on legal writing barren of a tellable tale, legal writing "texts" appear, initially, to be a more fruitful source. The story told by this emerging genre of texts has not been told (and may never be told). I will not attempt to tell it here, but offer some preliminary observations. Consider what follows as observations of a small country as seen by a man on a train:
Legal writing texts are plentiful in number, if not variety; their production part of a new growth industry.
While insiders (teachers of legal writing) may find discerning differences among the profusion of legal writing texts, to an outsider they display a marked conformity.
Many of the major legal writing texts offer a one volume version of legal education. They purport to not only be an instruction manual for legal writing but a manual on legal thinking and positivist jurisprudence primer.
The Oates, Enquist, Kunsch text is an example of the phenomenon. The authors devote four chapters to the "foundation" for legal writing, including an overview of the United States legal system, an introduction to common and statutory law, an introduction to legal analysis, and an introduction to analysis of statutes and cases. [Oates, et.al., The Legal Writing Handbook] I had the distinct impression, reading the Oates text, typical it turns out, that legal writing text are holographic representations of legal education as a whole If the student could fully comprehend, respond to, and appreciate the legal writing text, they would have little need for other courses of instruction in law. (Assuming, as so many do, that legal education consists primarily of a master of reading cases and their application to solve particular problems.)
A legal writing text confronts the student with an awesome edifice (of exercises, steps, stages, structures, and rules. Those familiar with and who have managed to learn to use a word processing program like WordPerfect or Microsoft Word by reading the instruction manual will be comfortable with this kind of learning.
The texts appear to offer all anyone would need to know to write like a lawyer. Indeed, they suggest that if you complete the "exercises" associated with the "steps" and "stages" of legal writing presented in the text, you will be fully trained as a legal writer. Legal writing texts offer commentary and exercises for comprehending every possible writing task. Reading legal writing texts one gets the impression that legal writing is akin to planning and preparing for battle. Every move, every angle, every possibility is mapped out and practiced, every linguistic move contemplated and made into a strategy. Legal writing, from the perspective of legal writing texts, is not writing derived from a "deep" (tacit) understanding of law and the habitual practice of reading and analyzing law cases and legal doctrine, but rather a specific formulaic exercise of a rule-based competence.
Legal writing programs may, paradoxically, send the message that legal writing is a great mystery, not unlike nuclear physics, in contrast to a message that writing is a simple act of thinking and using words to express an understanding of how law might be used to solve a problem. [The surface message is the opposite: "I hope to eliminate any mystery in the study of law . . . . " Calleros, Legal Method and Writing, supra, at xxiii:] By making the simple complex, legal writing tells only half the story.
Legal writing texts assure the student that what lies ahead is a series of steps and stages, that learning legal writing is a matter of progressing, step at a time, from stage to stage. Legal writing texts are reassuringly methodical and hopeful in the assertion that by doing writing exercises one will become proficient as a legal writer.
The step/stage thinking in legal writing extends from the simplistic to the ridiculous. Charrow and colleagues, for example, assume that it will be of some value to students to identify the stages of writing. And what are these stages? Prewriting, Writing, and Postwriting. [Charrow, et. al., at 81-84]. The Charrow text proclaims: "[I]t it is valuable to begin any writing task by articulating the steps you plan to take. It is also worthwhile to place the steps in a workable order, even if you end up moving the steps around or omitting some of them as you create the document." [Id. at 207]
Underlying the edifice of a legal writing text is the fundamental assumption that it is possible to begin with the foundations of law and legal writing, identify basic components of legal documents produced by lawyers (briefs, memorandum, and advisory letters, among others), the skills necessary to produce one of these component parts, engage in exercises that articulate and replicate the skill, and the building-block skills, exercised, can be built-upon, and made into a progressive march toward making oneself into a legal writer.
Legal writing texts view writing as an industrial process. The legal writing portrayed in these texts is mechanical: the process/product can be understood by viewing it in its component parts, studied, the parts replicated, then reassembled. (It is something akin to a medical school version of gross anatomy, but with the added task of putting all the pieces back together at the end of the day.) In the world of legal writing texts, the idea is disassembly, part-by-part, and then re-assembly. A legal writing, like a machine, is known by classification and parts labeling. In legal writing, we proceed by labeling parts and practicing skills of assembly. In legal writing, nothing can be left out because, like a machine, every part of the machine must be properly assembled to run.
Legal writing texts would have the novice legal writer believe that writing a legal brief is like learning to operate a nuclear power plant; one must master, paragraph by paragraph the instruction manual. For authors of legal writing texts and nuclear power plant owners, no contingency can be left unanticipated, every action must be according to plan and structure. There is a procedural way of doing every thing that needs to be done.
With the exclusive focus on technique, form, and structure in legal writing texts, one experiences an eerie absence of the soul of the writing enterprise--a person who writes.
Authors of legal writing texts always seem in danger of letting technique and the technical triumph over a focus on contextual thinking and persuasive argument (writing as a rhetorical activity). Gertrude Block, for example, gives grammar a prominent place in her legal writing text, providing detailed discussion on when to use a comma, when to use a semi-colon, when to use a colon, when to use a dash, when to use a hyphen, when to use a possessive apostrophe, when and where to use quotation marks--the list goes on. [Block, Effective Legal Writing: For Law Students and Lawyers, at 40-72 (the second chapter of the text is devoted to grammar)]
The triumph of technique is a corollary of the will to micro-manage writing. For example, in Oaks, Enquist, and Kunsch, The Legal Writing Handbook: Research, Analysis, and Writing, in addition to a "guide to correct writing," which is presented in three chapters, contains seven chapters consisting of 204 pages that deal with topics such as connections between paragraphs (pp. 527-534), effective paragraphs (pp. 535-566), connections between sentences (pp. 567-590), effective sentences (pp. 591-627), and effective words (pp. 629-689). One of the seven chapters on "effective writing" is, to the credit of the authors, devoted to eloquence (pp. 691-708).
Technique and micro-managing are all part of the heavy focus on planning. Planning precedes the writing and dominates as the writing is produced. The focus is on a planned production. [See e.g., Charrow, et. al. on prewriting: suggesting that there is much to be done before writing begins, a series of "steps" to be followed.] One must define purpose, audience, and constraints. [Charrow, et. al., Clear and Effective Legal Writing, at 81-83] "The more you work out these conflicts [that arise in the prewriting "steps"] before you write, the easier the writing task will be." [Id. at 81] Planning is the key to success. If you plan the steps and go through the stages in the right order you can "avoid the pitfalls that can destroy clarity and credibility." Id. Consequently, the recommendation: "It is valuable to begin any writing task by articulating the steps you paln to take. Careful thinking through each step will help you construct a complete, wellf-formed document. It is also worthwhile to place the steps in workable order.... As you write, you may end up moving the steps around or even omitting some of them." [Id. at 81]
One wonders how, in the enormity of structure and process, legal writing texts affect the novice legal writer. How can one learn to write, to experience legal writing first-hand, to know struggle, failure, and the wonder of words and rules of law made into argument, when the task(s) of writing are provoked by and connected to a lifeless instruction manual? (The most traditional of law school case books are filled with cases, and in turn, with people who have stories to tell, even if these stories have been severely "edited" by law.) What kind of invitation do legal writing texts extend to a student, or to any one of us, concerned that law be a humanistic and liberal art?
In reading legal writing texts, I had the oddest of feelings, a frightening sense of solitary existence. The reading left me feeling like one who ventures into a vast city, alone, walking down canyon-like streets lined with towering textual buildings. In these texts, there was no one, absolutely no one at street level with whom one might converse. (The traditional law school case book is designed for critical reading, for conversation/dialogue in a classroom. Law school case books are not legal instruction manuals.) The reading and writing life viewed from ground level seemed dwarfed by the heights sought in the authoritativeness of the writing text. I was left small, inconsequential; told to do exercises, follow the text step-by-step, in essence, do as I was told. Legal writing texts are not only joyless but authoritarian. Reading these texts, I experienced a strong desire to flee, to find a place where writing and argument, rules and conflict resolution, stand in a different relationship than that portrayed in legal writing texts. In this momentary feeling of being outsized, alone, and wishing to be elsewhere, I suspect a forewarning of the ways in which we isolate and disempower students who seek (in the most hopeful fashion) to learn the skills of writing associated with lawyering. [Legal writing texts do sometimes warn of such conditions. In the Oates, Enquist, and Kunsch text there is an admission that a student can be "overwhelmed." The authors contend that the antidote is analysis and synthesis. See Oates, Enquist, and Kunsch, at 127, 128-129] Where does the legal writing text leave a solitary law student to stand, to learn, to think, to dream?
N1. These comments are drawn from James R. Elkins, What Kind of Story is Legal Writing?, 20 Legal Stud. F. 95 (1996).
N2. In the opening lines, I make reference to "seeing" legal writing texts like the traveler who journeys by train. I have in mind the travel writings of Paul Theroux. See e.g., Paul Theroux, The Old Patagonian Express: By Train Through the Americas (Boston: Houghton Mifflin, 1979).