Lawyers as Writers

In this item that he posted on his blog last November, Wayne Schiess mentions that when he was a full-time practicing lawyer, he thought he was a good writer. He says he now realizes that he was quite mediocre and unaware of his limitations. He poses the following question: “Many practicing lawyers today believe themselves to be good writers, above average within the profession. Are they? Or are they as I was—ignorant and uninformed?”

Given that something of an industry has built up around the subject of lawyers and writing, I’m wary of offering any off-the-cuff thoughts on the subject. Nevertheless, here’s my riff on Wayne’s question:

If you were to do a survey—and I’m sure someone has—I suspect you’d find that a majority of practicing lawyers do in fact consider themselves to be above-average writers. In my law-firm days, I’d routinely hear someone stressing, in a self-assured manner, how important it is for associates to be able to write well. By contrast, I can’t recall anyone volunteering to me their inadequacies as a writer. (Not that I invited such confidences!)

Conceivably most of those lawyers who think they write well might in fact be good writers. But that would seem untenable as a general proposition, given the overall quality of lawyers’ work product. With respect to my area of study, I’ve not been shy about proclaiming that, across the board, the quality of mainstream contract drafting isn’t great—most drafters have little cause for complacency.

But from my perspective, what’s interesting about Wayne’s question isn’t so much the answer—which I think is apparent enough—but rather why there should be a disconnect between how lawyers perceive of themselves as writers and how well (or poorly) they actually write. I suggest that to find the answer, you can’t consider lawyers in isolation.

In an article entitled Think You Have a Book in You? Think Again, in the November 22, 2002 issue of the New York Times (click here to go to a copy; you’ll probably need to be a member of TimesSelect), the writer Joseph Epstein noted that in a survey sponsored by a small Michigan publisher, 81% of the 1,006 respondents had said that they wanted to write a book. I can’t imagine that this survey was particularly rigorous, but it’s consistent with my own sense, developed over the years, that a surprising number of people think they have a book in them.

The notion that one wants to write a book necessarily includes the notion that whatever one has to say, one is capable of expressing it in writing and with some fluency. Given that lawyers’ exaggerated notions of their writing skills would therefore seem to be shared by a large sector of the population, I think it makes sense to look for factors that encourage all would-be writers.

Presumably one such factor is that you don’t need any specialized equipment—for the most part you could get by quite happily with a pad of paper and something to write with. And you don’t need any specialized training. The result is that—to use venture-capital lingo—there are no barriers to entry.

And the nature of writing lends itself to delusion. Singing is a self-contained talent—if you’re told that you can’t sing, it would be hard to read much into that other than that you can’t in fact sing. But writing is touted as “thinking on paper,” and the idea of being a good writer brings with it the notion that one is in all likelihood smart, too. And maybe imaginative. Even insightful. And being told that you can’t write can inflict significant collateral damage on one’s ego. Furthermore, to learn that you can’t sing, all you have to do is open your mouth and sing a few bars in the presence of a reasonably disinterested observer or two. Before you can learn that your writing needs serious help, a decent writer has to spend some time reviewing your writing and discussing it with you—something that can’t be taken for granted.

To my mind, these factors are sufficient to explain any given lawyer’s unreasonably high regard for his or her writing skills. But if you also take into account that lawyers are by reputation competitive and self-assured, and that writing is fundamental to a lawyer’s livelihood, it may well be that lawyers are afflicted by a particularly virulent form of this delusion.

I’ll close by considering my own experience with this phenomenon.

In term of my own susceptibility, from college onwards I’ve harbored the notion that I’m not too shabby a writer. And from college onwards, teachers and more senior lawyers have routinely dismantled my writing. This suggests that once it takes hold, the I’m-a-great-writer delusion is tenacious. By now, I think I’ve gotten the message—whereas I’m comfortable regarding my writing, I’m acutely aware that tomorrow will bring further opportunities for me to feel foolish.

In terms of the susceptibility of others, I’ve noticed, in the course of my proselytizing about modern and efficient contract prose, that sporadically I’ll encounter a sullen resistance that goes beyond simple indifference or rational disagreement on specific issues. I get the sense that for many lawyers, how they draft is part of how they view themselves, and they don’t take kindly to any suggestion that change would be beneficial.

Posted in Uncategorized | 4 Comments

  • http://plainlanguage.com Cheryl Stephens

    I suspect that you have never watched American Idol, where many people display delusions that withstand professional critique.

    My own experience is that the worst writers will assert that their writing is good. Perhaps it is just bravado covering insecurity.

    In focus-group testing fifteen years ago, our CLE found that some lawyers would hesitate to attend a writing workshop. To be seen there would suggest to observers that the legal writer was admitting to a deficiency–a verbotten concept.

  • http://www.myshingle.com Carolyn Elefant

    I think lawyers believe that their writing is good because generally, legal writing is quite mediocre. So much of what is written is heavy and dull; it pounds home points and pummels the other side rather than making robust affirmative arguments that really sing. I’ve been told that my legal writing is pretty good. But more accurately, I’d describe my writing (and that of most lawyers) as “serviceable,” it rarely transcends to sublime or superior. And that’s what most legal writing is – serviceable or workmanlike.

  • Otto Stockmeyer

    “If you were to do a survey….” Bryan Garner has surveyed lawyers attending his CLE seminars. They say that 95% of lawyers claim to produce high-quality drafting, but only 5% of the legal drafting they see is genuinely of high quality. Source: Bryan A. Garner, President’s Letter, The Scrivener (newsletter of Scribes – the American Society of Legal Writers) 1,3 (Winter 1998), quoted in Joseph Kimble, Lifting the Fog of Legalese 46 (2006).

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