In his recent column in the ABA Journal entitled Why Lawyers Can’t Write, Bryan Garner describes how lawyers generally think they’re great writers yet are in fact depressingly inept.
No news there. But what caught my eye was Garner’s suggestion that this delusion “is significantly higher among transactional lawyers than it is among litigators.” He goes on:
Transactional lawyers have little idea how little they know.
[T]ransactional lawyers go through their professional lives blithely unaware of the land mines they’re inadvertently planting in their documents—at least until litigation over those land mines ensues.
Again, we can partly blame the law schools here. …
And practicing contract-drafters rarely get their papers “graded” as compared with litigators. Consider the highly publicized cases in 2012 alone in which courts thoroughly excoriated litigators who filed subpar briefs. That’s a strong motivator to do better. Transactional lawyers rarely suffer this negative experience.
Sure, but Garner’s assessment doesn’t take into account that writing by litigators is very different from contract drafting. Litigators actually write; transactional lawyers copy and adjust.
That’s because it’s likely that any dispute will involve a measure of uniqueness requiring a fresh take by any litigator. By contrast, any transaction will closely resemble other, previous transactions, so it makes sense to copy. If your writing consists mostly of copying, it follows that your critical faculties never develop. And it follows that guidelines, and training, are irrelevant, so you’re free to just make sh*t up.
I take second place to no one when it comes to bemoaning the nonsense that the transactional world churns out relentlessly. But given how different litigation writing is from contract drafting, it’s unhelpful to rank them on the same scale.