University of Michigan Law School
University of Michigan Law School Scholarship Repository
Articles Faculty Scholarship
2012
What is "Good Legal Writing" and Why Does it
Maer?
Mark Osbeck
University of Michigan Law School, mosbeck@umich.edu
Available at: h<ps://repository.law.umich.edu/articles/938
Follow this and additional works at: h<ps://repository.law.umich.edu/articles
Part of the Legal Writing and Research Commons
;is Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has
been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more
information, please contact mlaw[email protected].
Recommended Citation
Osbeck, Mark. "What is "Good Legal Writing" and Why Does it Ma<er?" Drexel L. Rev. 4, no. 2 (2012): 417-66.
417
WHAT IS “GOOD LEGAL WRITING” AND WHY DOES IT
MATTER?
Mark K. Osbeck*
*
ABSTRACT
Law schools face increasing pressure to improve instruction in practice-
oriented skills. One of the most important of these skills is legal writing.
The existing literature on legal writing contains various rules and sugges-
tions as to how legal writers can improve their writing skills. Yet it lacks
an adequate theoretical account of the fundamental nature of good legal
writing. As a result, legal writers are left without a solid conceptual
framework to ground the individual rules and suggestions. This Article at-
tempts to fill the theoretical void in the literature by offering a systematic
analysis of what it is for a legal document to be well written. It starts by
examining a foundational conceptual issue, which is what legal writers
mean when they say that a legal document is well written. It argues that
legal readers judge a document to be well written if the writing helps them
make the decisions they need to make in the course of their professional du-
ties. The Article then provides an analysis of the fundamental qualities that
enable legal writing to do this, concluding that there are three such quali-
ties: clarity, conciseness, and the ability to appropriately engage the reader.
The Article explains why each of these qualities is essential to good legal
writing, and it examines the tools good writers use to make their writing
clear, concise, and engaging. Lastly, the Article examines what it is that
distinguishes the very best writing in the field, arguing that great legal
writing is not just writing that is especially clear, concise, and engaging,
but is instead writing characterized by a separate quality, elegance, that is
aesthetic in nature. The Article then goes on to explore what it is that
makes such writing elegant, and whether it is desirable for legal writers to
strive for elegance in their own writing. The Article concludes by briefly
considering the pedagogical implications of the analysis discussed in the
previous sections.
*- Clinical Assistant Professor, University of Michigan Law School. I am grateful to Ed-
ward Becker, Kenneth Chestek, Linda Edwards, Phillip Frost, Ryan Pfeiffer, Donald Regan,
Alex Sarch, Brian Simpson, Robert Smith, David Thomson, Melissa Weresh, and J.B. White for
their helpful comments. I also wish to thank the Legal Writing Institute for awarding me a
grant to work on this project.
418 DREXEL LAW REVIEW [Vol. 4:417
TABLE OF CONTENTS
INTRODUCTION ............................................................................... 418
I. WHAT IT MEANS TO SAY THAT A LEGAL DOCUMENT IS
WELL WRITTEN ........................................................................ 423
II. THE THREE FUNDAMENTAL QUALITIES THAT ENABLE
GOOD LEGAL WRITING ............................................................ 427
A. Good Legal Writing Is Clear ........................................... 427
B. Good Legal Writing Is Concise ....................................... 437
C. Good Legal Writing Is Engaging .................................... 440
1. The importance of engaging the reader ...................... 441
2. What makes writing engaging ................................... 443
3. The tension between engagement and clarity ............ 455
III. ELEGANCETHE HALLMARK OF GREAT LEGAL WRITING .... 456
CONCLUSION ................................................................................... 464
INTRODUCTION
On April 9, 2010, Chester Paul Beach, Jr., the associate general
c
Technologies Corporation, spoke at a high-profile conference in
New York that concerned the future of legal education. Addressing
the staffing practices of corporate law firms, Mr. Beach startled the
one of those firms who does not allow first or second year associates
to work on our matters without special permission
1
to practice law created something of a stir in the law school commu-
nity. Yet it was really just a poignant expression of an increasingly
common sentiment. During the past two decades or so, law schools
have come under increasing pressure from outside the academy to
improve the practice-oriented skills of their graduates.
Section of Legal Education and Admission to the Bar formed a task
s-
connect between legal education and the practice of law. That task
1
. Chester Paul Beach, Assoc. Gen. Counsel, United Techs. Corp., Address at Future Ed:
New Business Models for U.S. and Global Legal Education, (Apr. 910, 2010), available at
http://nyls.mediasite.com/mediasite/Catalog/Full/ac401784b0234af89d50e059b4e95c3021
(fol- Panel 1).
2012] WHAT IS “GOOD LEGAL WRITING”? 419
force, headed by Robert MacCrate, issued what is now known as the
MacCrate Report in July 1992.
2
The heart of the report was its State-
ment of Lawyerly Skills and Professional Values. This identified the
skills the task force deemed essential to the competent practice of
law, one of which was effective oral and written communication.
3
The task force stressed that it was important for law schools to focus
indicate that practicing lawyers believe that their law school training
left them deficient in skills they were forced to acquire after
4
In 2001, the ABA stepped up its pressure on law schools to im-
prove skills education, mandating for the first time that law schools
the first year to supplement the traditional first-year legal writing
and research course.
5
reflect the importance of legal writing instruction to the law school
6
The judiciary has also weighed in on the importance of improving
the legal writing and other practice-oriented skills of law school
graduates. For example, in a widely discussed article entitled The
Growing Disjunction Between Legal Education and the Legal Profession,
Judge Harry T. Edwards of the United States Court of Appeals for
especially the so- have abandoned their proper
place, by emphasizing abstract theory at the expense of practical
2
. See generally AM. BAR ASSN SECTION OF LEGAL EDUC. & ADMISSIONS TO THE BAR, LEGAL
EDUCATION AND PROFESSIONAL DEVELOPMENTAN EDUCATIONAL CONTINUUM, THE REPORT
OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (1992).
3
. Id. at 13841. The Task Force Recommendations explicitly addressed the need for im-
provements in legal-
that new lawyers today are deficient in writing skills, further concerted effort should be made
in law schools and in programs of transition education after law school to teach writing at a
Id. at 332.
4
. Id. at 5.
5
. 201112 STANDARDS & RULES OF PROCEDURE FOR APPROVAL OF LAW SCH., Program of Le-
gal Education § 302 (a)(3) (2011), available at http://www.americanbar.org/content/dam/aba
/publications/misc/legal_education/Standards/2011_2012_standards_and_rules_for_web
.pdf (last visited Mar. 21, 2012). For a thorough discussion of this revision and its impact, see
Kenneth D. Chestek, MacCrate (in)Action: The Case for Enhancing the Upper-Level Writing Re-
quirement in Law Schools, 78 U. COLO. L. REV. 115 (2007).
6
. COUNCIL ON THE SECTION OF LEGAL EDUC. & ADMISSIONS TO THE BAR, MEMORANDUM
FROM JOHN A. SEBERT, CONSULTANT, ON 2000-2001 CHANGES TO THE STANDARDS, INTERPRETA-
TIONS, AND RULES (June 2001) (on file with the author).
420 DREXEL LAW REVIEW [Vol. 4:417
7
Judge Edwards faulted law schools for
not providing their graduates sufficient training in the skills they
n-
8
lawyers that is quite appalling. Many lawyers appear not to under-
stand even the most elementary matters pertaining to style of
presentation in legal writing
9
Judge Edwards is not alone among members of the judiciary in
his assessment of the poor writing skills of lawyers. One of the most
prominent and prolific federal judges, Richard Posner, has observed
10
Like Judge Edwards, he believes that
11
Other judges agree. One empirical study found
that approximately 94% of both federal and state judges surveyed
reported that basic writing problems routinely marred the briefs
they read, and that a clear majority of respondents thought that new
members of the profession did not write well.
12
Voices from outside the bench and bar have also pressured law
schools to put a greater emphasis on legal writing and other prac-
tice-oriented skills so that their students will be better prepared to
practice law when they graduate. In 2007, the Carnegie Foundation
for the Advancement of Teaching issued an influential report called
Educating Lawyers (also commonly referred to as the Carnegie Report),
13
It
accordingly recommended that law schools make a greater effort to
intel-
ly complement the teaching and learning of legal doctrine with the
14
7
. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profes-
sion, 91 MICH. L. REV. 34, 34 (1993).
8
. Id. at 63.
9
. Id. at 64.
10
. Interview, A Conversation with Judge Richard A. Posner, 58 DUKE L.J. 1807, 1815 (2009).
11
. Id. at 1816.
12
. Susan Hanley Kosse & David T. ButleRitchie, How Judges, Practitioners, and Legal Writ-
ing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study, 53 J. LEGAL
EDUC. 80, 8586 (2003).
13
. WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION
OF LAW, SUMMARY 8 (2007).
14
. Id.
2012] WHAT IS “GOOD LEGAL WRITING”? 421
That same year, a committee of scholars and practitioners spon-
sored by the Clinical Legal Education Association issued a report
entitled Best Practices for Legal Education that was designed to en-
courage a dialogue on how to improve skills training in law
schools.
15
i-
a compelling need to change legal education in
n-
imum competencies required to provide effective and responsible
16
Not surprisingly, the increased pressure on law schools to im-
prove the legal writing and other practice-oriented skills of their
students has spurred a burgeoning body of academic literature on
practical lawyering skills. Indeed, just in the area of legal writing
(which is perhaps the most fundamental of practice-oriented skills),
commentators have produced literally dozens of articles and books
in recent years aimed at improving the legal writing skills of law
students and lawyers.
17
And yet, while commentators have generat-
ed many helpful works on legal writing and legal-writing peda-
gogy, they have largely ignored the theoretical underpinnings of le-
gal writing. Numerous books and articles offer advice on how to
write better or how to teach writing better, but none provides a sys-
tematic analysis as to the fundamental goals of legal writing.
18
This void in the literature hampers legal writers. Without an ade-
quate understanding of the fundamental goals of legal writing, legal
writers cannot make full and effective use of the individual rules
and suggestions they find in the existing literature. As with practi-
tioners in any discipline, legal writers require more than just rote
memorization of various rules and suggestions if they want to be-
come proficient in their craft; they need also to understand why they
are being taught to write a certain way. For only then do they pos-
15
. ROY STUCKEY ET AL., BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD
MAP 1 (2007).
16
. Id. at 1, 5.
17
. See Almas Kahn, A Compendium of Legal Writing Sources, 50 WASHBURN L.J. 395 (2011)
(summarizing the principal works in the field).
18
.
judges, and related professionals (e.g., judicial clerks) produce in the course of their work. The
prototypical examples of such writing are legal memoranda, letters, briefs, motions, and judi-
cial opinions. I do not mean to include in this analysis academic legal writing or the products
of transactional drafting (e.g., contracts), though much of what is discussed in this Article ap-
plies to these types of writing as well. Likewise, while the focus of this Article is on legal writ-
ing specifically, there is certainly a significant overlap between good legal writing and good
expository writing generally.
422 DREXEL LAW REVIEW [Vol. 4:417
sess an adequate conceptual framework to make sense of the indi-
vidual rules and suggestions they learn.
19
Furthermore, from a ped-
agogical perspective, it is difficult to see how legal-writing instruc-
tors can effectively teach their students how to write well if they
themselves do not have a clear understanding of what exactly good
legal writing entails.
This Article endeavors to fill the theoretical void in the existing
literature by providing a systematic analysis of what it is that makes
a legal document well written. Part I of the Article explores the con-
cept of good legal writing and what exactly legal readers mean when
they say that a legal document is well written. It concludes that
good writing is essentially writing that satisfies the needs and de-
sires of the reading audience, and in the context of legal writing, this
m-
portant decisions legal readers need to make in the course of their
professional duties. Part II then analyzes the fundamental qualities
20
that enable good legal writing to do this. It argues that there are
three such fundamental qualities: clarity, conciseness, and the ability
to appropriately engage the reader. It examines why each of these
fundamental qualities is essential to good legal writing, and it ex-
plores the various tools legal writers use to make their writing clear,
concise, and engaging. Lastly, Part III discusses a separate, aesthetic
the very best legal writing. Part III then explores what it is that
makes great writing elegant, and whether it is desirable for legal
writers to strive for elegance in their own writing. The Article con-
cludes by briefly considering two pedagogical implications of the
analysis discussed in the previous sections.
19
.
you learn what it is that goes into the making of a memorable sentence . . . you will also be
learning how to take the appreciative measure of such sentences. And conversely, if you can
add to your admiration of a sentence an analytical awareness of what caused you to admire it,
STANLEY FISH, HOW TO WRITE A SENTENCE: AND HOW TO READ ONE 89 (2011).
20
. I mean essential qualities that enable good writing and
cannot themselves be reduced to other, more basic qualities. As Charles Calleros explains:
CHARLES R.
CALLEROS, LEGAL METHOD AND WRITING 5 (5th ed. 2006). My claim is that the specific legal-
writing guidelines found in the literature are all geared toward producing writing that is
clear, concise, and engaging, as discussed in Part II.
2012] WHAT IS “GOOD LEGAL WRITING”? 423
I. WHAT IT MEANS TO SAY THAT A LEGAL DOCUMENT IS WELL
WRITTEN
Since the principal goal of this Article is to provide a systematic
analysis of good legal writing, it is important as a preliminary mat-
ter to explore what exactly it means to say that a legal document is
well
d-
ingly, this Part addresses that foundational concept.
As a starting point, it is tempting to look to the writer’s purpose for
guidance as to what it means for a legal document to be well writ-
ten.
In other words, it seems plausible to assert that a well-written
document accomplishes (or is reasonably calculated to accomplish)
21
If, for example, the
n-
der this criterion, the brief is well written if in fact it persuades the
intended audience (i.e., the court)
in writing a memorandum is to convey information to a client, then
the memorandum is well
intended message to the client.
This criterion has a certain intuitive appeal. After all, legal writers
do not write in a vacuum; they write in order to accomplish specific
objectives (e.g., to persuade a court of a certain position or to explain
a point of law to a client). Legal writing is an inherently social activi-
ty in which the legal writer puts pen to paper in order to have a cer-
tain effect on a target audience.
22
Thus, it would not be unreasonable
written simply means that
the writing enables the document t
purpose.
On closer inspection, however, this theory does not provide an
adequate account of the concept of good writing. For while it is cor-
s purpose is an effec-
tive
may well be the more important consideration),
23
such a conclusion
21
.
effect, and the success of a sentence is measured by the degree to which the desired effect has
FISH, supra note 19, at 37.
22
. I am indebted to J.B. White for his helpful comments on this issue.
23
.
brief succeeds in doing that, the advocate is not overly concerned with whether the court
thought it was a well-written brief. For that reason, some legal-writing texts appear to focus
more on the effectiveness of legal writing than on the writing quality per se. See generally ANNE
424 DREXEL LAW REVIEW [Vol. 4:417
does not necessarily mean that the document is well written. A doc-
ument can be effective even though it is not well written, and con-
versely, a document can be well written even though it is not
effective.
A document can be effective even though it is not well written be-
cause there are other factors besides writing quality that can enable
a document to
can be an effective document, even though it is poorly written; so
too can a brief that is deliberately unclear.
Consider, for example, a brief in opposition to a motion for sum-
mary judgment, where the lawyer preparing the motion has a weak
case and deliberately tries to obscure the material issues through
murky writing in hopes that the court will be too confused after
reading the brief to feel comfortable rendering summary judgment.
Rule 56, which governs summary judgment, sets a high bar, requir-
ing the court to find that there is no genuine dispute as to any mate-
rial fact.
24
If the court concludes that there is any material fact in
dispute that a reasonable jury could resolve in favor of the non-
moving party, summary judgment is not appropriate.
25
In these cir-
cumstances, a lawyer with a weak case may rationally conclude that
the most effective way to defeat a summary judgment motion is to
write an unclear brief so that the judge has a hard time determining
whether there are any genuine disputes. And while deliberately ob-
scuring the issues in an attempt to confuse the court may raise con-
ribunal,
26
it can
nevertheless be an effective litigation tactic. Yet this effectiveness
does not necessarily mean that the obscure brief is well written. In
fact, briefs of this nature are generally regarded as poorly written by
the legal community, since clarity is almost universally regarded as
the hallmark of good legal writing.
27
Therefore, it is certainly possi-
ENQUIST & LAUREL CURRIE OATES , JUST WRITING 5161
24
. See FED. R. CIV. P mmary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
25
. See -
of-the mill civil case moves for summary judgment or for a directed verdict based on the lack
of proof of a material fact, the judge must ask himself . . . whether a fair-minded jury could re-
26
. See MODEL RULES OF PROFL CONDUCT Rg-
ly make a false statement o
27
. See infra Part II.A.
2012] WHAT IS “GOOD LEGAL WRITING”? 425
ble for a document to be poorly written, even if the document ad-
Conversely, a document can be well written even though it does
u-
ments, for example, it is unlikely to persuade the court, even if it is
otherwise well written. Likewise, the particular predilections of the
target audience can influence whether a document is effective, re-
Suppose, for example, that a litigator is writing a brief to a federal
district court judge on an issue of statutory interpretation. Suppose
rgument is based on legislative
history, even though the judge has expressed an aversion to the use
of legislative history in statutory interpretation.
28
(This could just as
r-
sion to footnotes in briefs.)
29
consider the preferences of the intended audience plainly detracts
even though it is otherwise a well-written brief. Therefore, it is ap-
parent that a document can be well written, even though it does not
Thus, while there is significant overlap between a well-written
document and one that is effective, the two concepts are not coex-
tensive. Some well-
purpose, and conversely, some documents that do enable the writer
written. Consequently,
what it means for a legal document to be well written cannot be ex-
plained by reference to the purpose of the writer.
A more promising approach to understanding the concept of
good writing is to look to the needs and interests of the reading au-
dience. After all, whether a piece of writing is regarded as well writ-
ten is a judgmee-
reasonably determine after the fact whether a given document was
an effective document (d-
ed purpose). But it is the readers who determine whether the docu-
ment is regarded as well written, based upon their perception as to
28
. See, e.g., Zedner v. United States, 547 U.S. 489, 511 (2006) (Scalia, J.
use of legislative history is illegitimate and ill advised in the interpretation of any statueand
29
. See Richard A. Posner, Against Footnotes, 38 CT. REV. 24, 24 (2001) (taking issue with
writing briefs and opinions).
426 DREXEL LAW REVIEW [Vol. 4:417
whether the writing meets their expectations. If the readers deter-
mine that the writing style tracks their needs and interests, and
therefore advances their purpose for reading the document, then it
will be considered a well-
true not on-
means writing that fulfills the expectations (i.e., satisfies the needs
and interests) of the intended audience.
In the context of legal writing, the lawyers and judges who com-
prise the intended audience have very particular needs and interests
when they read legal documents. Unlike readers of fiction, they are
not looking for writing that entertains them or edifies them in some
way. Rather, lawyers and judges read legal documents because they
need to extract information from these documents that will help
them make decisions in the course of their professional duties.
30
For
to obtain information concerning the law and its application to the
facts. This in turn helps the partner decide how to advise the client,
or how to approach a strategic decision the lawyer needs to make
with respect to a case or a transaction. Likewise, a judge reads a
-trial brief in order to obtain information about the case
helps the judge decide how to rule on a motion. And similarly, a
lawyer reads a judicial opinion in order to obtain information about
the law and how it is likely to be interpreted or applied in a future
case. This information in turn helps the lawyer decide how best to
make an argument, structure a transaction, or advise a client as to a
proposed course of action.
In each of these instances, the le
the document is to extract information that will facilitate the read-
-making. And thus, the legal reader will regard a doc-
ument as well written if and only if the writing facilitates that deci-
sion-making. Good legal writing, therefore, is best understood as
writing that helps legal actors make decisions in the course of their
professional duties.
30
. See RICHARD K. NEUMANN, LEGAL REASONING AND LEGAL WRITING 51 (6th ed. 2009)
-
2012] WHAT IS “GOOD LEGAL WRITING”? 427
II. THE THREE FUNDAMENTAL QUALITIES THAT ENABLE GOOD
LEGAL WRITING
The previous Part argued that a legal document is well written if
the writing facilitates legal decision-making. This Part advances a
theory as to the fundamental qualities that enable legal writing to do
this. It concludes that there are three such qualities: clarity, concise-
ness, and the ability to engage the reader. It then discusses the na-
ture of these fundamental qualities, examines how these qualities
x-
plores the tools good legal writers use to incorporate these qualities
into their writing.
A. Good Legal Writing Is Clear
While the existing literature on legal writing lacks a systematic
analysis of the fundamental qualities of good legal writing, there
does appear to be a consensus in the literatureas well as in the
practice of lawthat the chief hallmark of good legal writing is clari-
ty
in matters of literary style the sovereign virtue for the judge is clear-
31
Likewise, most contemporary commentators on legal writ-
ing exalt clarity above all else. In their book Making Your Case, for
feature of a good style trumps all others. Literary elegance, erudi-
tion, sophistication of expressionthese and all other qualities must
be sacrificed if they
32
So what accounts for the exalted status of clarity? If, as discussed
in Part I, good legal writing is writing that facilitates legal decision-
making, the answer becomes apparent. The legal reader picks up a
document in order gain information that will help the reader make a
decision: an associate reads an opinion in order to better understand
the law and to better predict what a court is likely to do in a given
gain a better understanding of the legal challenges facing the client;
and a judge reads a brief in order to better understand the facts and
b-
jective will be frustrated if the reader cannot unders
31
. BENJAMIN N. CARDOZO, LAW AND LITERATURE (1931), reprinted in LAW AND LITERATURE
AND OTHER ESSAYS AND ADDRESSES 7 (Fred B. Rothman, & Co.,1999).
32
. ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING
JUDGES 107 (2008).
428 DREXEL LAW REVIEW [Vol. 4:417
message. As Bryan Garner puts the point,
mind that the purpose of communication is to communicate, and
or listener
33
Clarity, therefore, is the most basic quality of good
legal writing. For it is only when writing is clear that the reader can
r-
mation to facilitate professional decision-making.
34
oal, then the next ques-
tion is: what makes writing clear? Here, the legal-writing literature
is fairly well-developed. As a starting point, clarity requires proper
(i.e., conventional) grammar and punctuation.
35
And while there is
not a lot of discussion as to why writers need to follow conventional
grammatical rules in order to be clear, it is apparent that language
has to have certain agreed-upon rules to govern its basic function-
ing. Otherwise, there would be no possibility of shared meaning,
and therefore no possibility of language itself.
36
To be sure, language speakers can debate the wisdom of certain
minor rules that reside around the periphery of a system of linguis-
tic rules. For example, rules such as not ending a sentence with a
preposition, or requiring that commas and periods be placed inside
quotation marks, are certainly not essential to understanding the
33
. BRYAN A. GARNER, THE REDBOOK: A MANUAL ON LEGAL STYLE 183 (2d ed. 2002).
34
. See CALLEROS, supra
obvious: Your legal memorandum will not enlighten, nor will your brief persuade, unless the
35
. See generally Lillian B. Hardwick, Classical Persuasion Through Grammar and Punctuation,
3 J. ASSN LEGAL WRITING DIRECTORS, 75, 75107 (2006). See also JOHN C. DERNBACH ET AL., A
PRACTICAL GUIDE TO LEGAL WRITING & LEGAL METHOD
do not want in a lawyer. Minor errors distract the reader from the message to be conveyed.
Major errors may distort the LAUREL CURRIE OATES &
ANNE ENQUIST, THE LEGAL WRITING HANDBOOK 607 (5th ed. 2010) (noting that effective and
NEUMANN,
supra note 30, at 224 (stating that correct punctuation and grammar make writing clearer and
easier to understand); WILLIAM STRUNK, JR. & E.B. WHITE, THE ELEMENTS OF STYLE 114 (4th
ed. 2000) (devoting the first chapter to basic rules of grammar and usage); RICHARD C.
WYDICK, PLAIN ENGLISH FOR LAWYERS 84 (5th ed. 2005) (noting in the final chapter devoted to
i-
But see JOHN BRONSTEEN, WRITING A LEGAL MEMO 3537 (2006) (arguing
36
. See generally STEVEN PINKER, THE STUFF OF THOUGHT: LANGUAGE AS A WINDOW INTO
HUMAN NATURE 2532 (2007) (discussing the role of basic grammatical rules in enabling chil-
dren to learn language).
2012] WHAT IS “GOOD LEGAL WRITING”? 429
English language.
37
And there may even be instances when ignoring
some of these minor rules rather than following them rigidly ad-
vances clarity.
38
But the writer who disregards in a significant way
the rules of the languageparticularly its core rulesmakes it diffi-
cult, if not impossible, for readers accustomed to following those
brief that consistently misuses verb tenses, or that contains no verbs
at all, or worse still, scrambles the words in sentences in completely
unconventional ways. Generally, the greater the deviation from the
core rules of grammar, syntax, and semantics, the more difficult it
39
Of course, clear writing requires more than just staying within the
rough confines of conventional grammar, syntax, and semantics.
The conventional rules have a fair degree of flexibility, and so the
writer still has to make choices with regard to sentence structure
and word usage from within the universe of acceptable conventions.
How then does a skillful writer do this in order to maximize clarity?
The most common prescription in the literature is to use ordinary
words
40
and simple sentence structures.
41
Richard Wydick, for ex-
ample, states in his classic book Plain English for Lawyers
42
And Joseph Williams, in his well-
known book Style: Lessons in Clarity and Grace, n-
eral, your sentences should begin with elements that are relatively
short: a short introductory phrase or clause, followed by a short,
37
. See generally JOSEPH M. WILLIAMS & GREGORY G. COLOMB, STYLE: LESSONS IN CLARITY
AND GRACE 1323 (10th ed. 20
38
. BRONSTEEN, supra note 35, at 36.
39
. Cf. FISH, supra note 19, at 2533 (explaining how the possibility of meaning derives
from the logical forms of sentences).
40
. See, e.g., DEBORAH E. BOUCHOUX, ASPEN HANDBOOK FOR LEGAL WRITERS 98e-
BRONSTEEN, supra note 35, at 3335 (using short,
simple words aids clarity); NANCY L. SCHULTZ & LOUIS J. SIRICO, LEGAL WRITING AND OTHER
LAWYERING SKILLS 9091, 9394 (5th ed. 2010) (use of simple, concrete words and avoiding le-
galese advances goal of clarity); WYDICK, supra note 35, at 5658.
41
. A number of legal-writing texts emphasize the importance to clarity of simple, subject-
and-verb sentences. See, e.g., BRONSTEEN, supra note 35, at 1929; VEDA R. CHARROW ET AL.,
CLEAR AND EFFECTIVE WRITING 163165 (2007); LINDA H. EDWARDS, LEGAL WRITING: PROCESS,
ANALYSIS AND ORGANIZATION 22526 (5th
ed. 2010); TERRI LECLERCQ, GUIDE TO LEGAL WRIT-
ING STYLE 2331 (4th ed. 2007); NEUMANN, supra note 30, at 22728; OATES & ENQUIST, supra
note 35, at 7778; SCHULTZ & SIRICO, supra note 40, at 9899; WYDICK, supra note 35, at 4143.
42
. WYDICK, supra note 35, at 5; see also Julie A. Baker, And The Winner Is: How Principles of
Cognitive Science Resolve the Plain Language Debate, 80 U.M.K.C. L. REV. 287, 289 (2012) (discuss-
readers generally prefer plain language).
430 DREXEL LAW REVIEW [Vol. 4:417
concrete subject, followed by a verb expressing a specific action. Af-
ter the verb, the sentence can go on for several lines, if it is well-
43
Palsgraf v. Long Island Railroad Co.
44
provides a good example of this
type of simple, concrete writing. There, Cardozo summarizes the
succinct fashion:
after buying a ticket to go to Rockaway Beach. A train
stopped at the station, bound for another place. Two men
ran forward to catch it. One of the men reached the platform
of the car without mishap, though the train was already
moving. The other man, carrying a package, jumped aboard
the car, but seemed unsteady as if about to fall. A guard on
the car, who had held the door open, reached forward to
help him in, and another guard on the platform pushed him
from behind. In this act, the package was dislodged, and fell
upon the rails. It was a package of small size, about fifteen
inches long, and was covered by a newspaper. In fact it con-
tained fireworks, but there was nothing in its appearance to
give notice of its contents. The fireworks when they fell ex-
ploded. The shock of the explosion threw down some scales
at the other end of the platform, many feet away. The scales
struck the plaintiff, causing injuries for which she sues.
45
Even though this factual scenario is fairly complicated, Cardozo
makes it easy to follow. The reader needs to read the paragraph only
once to understand what happened and to gain a clear idea of what
ordinary language and a series of simple sentences that employ Pro-
r
the beginning of the sentence, followed by a verb that expresses a
specific action.
46
The legal-writing community now widely accepts the view that
clarity. This acceptance is due in large part to the efforts of the so-
43
. WILLIAMS & COLOMB, supra note 37, at 85.
44
. 162 N.E. 99, 99 (N.Y. 1928).
45
. Id.
46
. WILLIAMS & COLOMB, supra note 37, at 85.
2012] WHAT IS “GOOD LEGAL WRITING”? 431
47
This movement is led by an
influential group of legal scholars, judges, and practitioners who
seek to advance clarity in legal writing by purging it of cumbersome
sentence constructions and empty legal jargon.
48
Proponents of the
movement apply this prescription broadly to legislative and transac-
tional drafting,
49
as well as to expository legal writing.
The Plain Language Movement has undoubtedly advanced the
cause of clarity in legal writing. Yet some critics of the movement
have argued that this comes with a cost. Specifically, they argue that
focusing too much on the use of ordinary terms at the exclusion of
technical terms inhibits the precision of legal writing. They assert
that, particularly in the context of transactional drafting, ordinary
terms can be vague and ambiguous,
50
whereas technical legal terms
can add increased precision.
If these critics of the Plain Language Movement are correct, their
critique creates a dilemma for legal writers who are trying to write
clearly because an important aspect of clear writing is the ability to
convey information with an appropriate degree of precision. Sup-
pose, for example, I leave written directions for my auto-mechanic
to check out the low-pitched grinding sound coming from the driv-
that the car is
47
. The seminal work that gave rise to the Plain Language Movement is DAVID
MELLINKOFF, THE LANGUAGE OF THE LAW (1963). Perhaps the most significant work in recent
years is JOSEPH KIMBLE, LIFTING THE FOG OF LEGALESE: ESSAYS ON PLAIN LANGUAGE (2006). For
a short history of the Plain Language Movement, including an interesting discussion of
Judith D. Fischer, Why George Orwell’s Ideas
About Language Still Matter for Lawyers, 68 MONT. L. REV. 129, 13235 (2007).
48
. See, e.g., Joseph Kimble, Writing for Dollars, Writing to Please, 6 SCRIBES J. LEGAL WRITING
1, 538 (199697) (summarizing various studies that show readers have a preference for plain
language).
49
. See generally Wayne Schiess, The Art of Consumer Drafting, 11 SCRIBES J. LEGAL WRITING
1, 122 (2007) (arguing that the use of short, simple sentences and simple words advances clar-
ity in transactional drafting).
50
. See, e.g., Jeffrey Barnes, The Continuing Debate, 27 STAT. L. REV. 83, 91 (2006); David
Crump, Against Plain English: The Case for a Functional Approach to Legal Document Preparation,
33 RUTGERS L.J. 713, 715 (200102); Brian Hunt, Plain Language in Legislative Drafting: Is It Really
the Answer?, 23 STAT. L. REV. 24, 2736 (2002); see also Rabeea Assy, Can the Law Speak Directly
to Its Subjects? The Limitation of Plain Language, 38 J. L. & SOCY 376, 402 (2011) (arguing that
there is an inevitable linguistic gap between technical legal terms and ordinary language
terms because the former are closely tied up with a body of theories, doctrines, principles, and
rules that the speaker must have some understanding of in order to use legal language effec-
tively), available at http://ssrn.com/abstract=1906372.
432 DREXEL LAW REVIEW [Vol. 4:417
making a funny noise. By being more precise, I have made my
communication clearer.
51
Supporters of the Plain Language Movement counter that it is
merely a myth that plain language is at odds with precision.
52
They
argue that plain language is generally just as preciseand often
more precisethan traditional legalese.
53
And that may be true. No
are mere jargon and add nothing to their plain-language
equivalents.
Yet even plain-language advocates admit that there are times
when plain language is less precise than more technical language.
They merely maintain that such instances are relatively uncommon
in legal writing and do not detract in any significant way from their
general prescription against using legalese.
54
But while plain lan-
guage advocates and their critics may disagree as to how frequently
plain language and precision actually come into conflict, it is hard to
deny that on at least some occasions, communications can be made
clearer by the use of more precise technical terms. This is true in the
legal context and more generally. An emergency-room physician,
for example, is not likely to tell the on-call cardiologist that the pa-
ician is likely to report
level of specificity the cardiologist requires. Likewise in the context
51
. One could argue that precision is a separate quality from clarity, rather than a compo-
nent of clarity. But for present purposes, it does not really matter. In either case, the same di-
lemma confronts the plain-language advocate: either precision is a component of clarity, in
which case the writer needs to balance precision against the benefits of using plain language
in order to maximize clarity, or precision is actually an independent quality, distinct from clar-
ity, that the writer needs to balance against the goal of clarity in order to maximize the overall
quality of the writing.
52
. See, e.g., BRYAN A. GARNER, The Myth of Precision, in A DICTIONARY OF MODERN LEGAL
USAGE 580, 580 (2d ed. 1995); Joseph Kimble, The Great Myth that Plain Language Is Not Precise,
7 SCRIBES J. LEGAL WRITING 109, 11011 (19982000); David Mellinkoff, The Myth of Precision
and the Law Dictionary, 31 UCLA L. REV. 423, 42324 (1983); Wayne Schiess, What Plain Lan-
guage Really Is, 9 SCRIBES J. LEGAL WRITING 43, 15859 (200304).
53
. See, e.g., Joseph Kimble, Answering the Critics of Plain Language, 5 SCRIBES J. LEGAL WRIT-
ING 51, 5355 (199495).
54
. See id. -language advocates have said repeatedly that technical terms and
terms of art are sometimes necessary, and that some legal ideas can be stated only so simply.
But technical terms and terms of art are only a small part of any legal documentless than 3%
GARNER, supra note 52, at 663
e-
vail. But the instances of actual conflict are much rarer than lawyers often suppose. Precision
is not sacrificed when the drafter uses technical words where necessary and avoids JARGON
2012] WHAT IS “GOOD LEGAL WRITING”? 433
of legal writing, it is sometimes clearerdepending on the audi-
encefor a lawyer to use terms of art such as preliminary injunction,
promissory estoppel or quantum meruit than to try to translate those
The basic prescription to use ordinary language in legal writing,
therefore, cannot, without further elaboration, provide much mean-
ingful guidance to the legal writer because it glosses over some im-
portant contextual considerations. When someone says that legal
writers should use plain language, the question inevitably arises:
l-
timately relative to the audience and depends upon contextual con-
and background knowledge. Scalia and Garner say that the good le-
gal writer does not use words that require the judge to get out a dic-
tionary.
55
But even that depends on the judge: a wordsmith such as
Justice Scalia likely requires the use of a dictionary less frequently
than some other judges.
56
So the legal writer following the Garner
audience, writing in language that is simpler for some judges than
for others.
In the final analysis, therefore, a general prescription to use plain
language is helpful only if it is understood to be shorthand for a
more nuanced rule,
57
such as the following:
When you use distinctive technical or legal terms, consider
whether the terms add any value beyond their ordinary-
language equivalents. If not, use the ordinary term. If so,
then consider the nature of the audience to determine
whether the increased precision resulting from the technical
55
. SCALIA & GARNER, supra note 32, at 107.
56
. o-
See Robert Barnes, Supreme Court Justices, Law Professor Play with Words, WASH. POST, Jan.
57
. Plain-language devotees may not object to this rule. In fact, some of them seem to sug-
gest that their prescription to use plain language is actually just shorthand for some more nu-
anced rule like this one. Bryan Garner, for example, grants that simple language is not appro-
priate in every context:
Despite the myth to the contrary, no formula unfailingly produces a good prose
in the lawa salutary force in almost every respectwould be misguided to the ex-
tent that some of its advocates might believe that every motion can be simply ex-
pressed. Though it is true that lawyers have often obscured simple thoughts by using
murky language, it is also true that complex expressions are sometimes unavoidable.
BRYAN A. GARNER, GARNER ON LANGUAGE AND WRITING 48 (2009).
434 DREXEL LAW REVIEW [Vol. 4:417
term outweighs any loss of clarity that may result from us-
ing a term that may not be familiar to all members of the in-
tended audience.
58
The benefits of using precise technical terms, in other words, must
be balanced against the benefits of using language that is clear to a
broader audience. Technical terms may sometimes aid precision, but
they also inhibit clarity if the reader does not understand them.
Thus
the writer needs to take into account contextual considerations, such
as the background knowledge of the intended audience, in order to
strike the appropriate balance.
59
Thus far, this Part has examined how the use of conventional
grammar, simple sentence structure, and (appropriately) plain lan-
guage advances clarity. But there are other prescriptions for clarity
discussed in the literature as well. One such prescription involves
eliminating unnecessary words and phrases from sentences that
comprehension.
60
Sometimes referred to as
d-
61
According to
William Zinsser, removing clutter is an essential component of clari-
ty because o-
ciety strangling in unnecessary words, circular constructions,
62
The literature also stresses the appropriate use of repetition to
make writing clearer. Using a particular term consistently and
choice
63
can avoid needless confusion on the part of the reader. This
58
. u-
e legalese increase or
See ENQUIST & OATES, supra note 23, at
128.
59
. Linda Edwards summarizes this point nicely:
When writing to a law-trained reader, you may choose to use some legal terms un-
familiar to laypersons because those terms communicate legal concepts more
clearly and concisely than non-legal terms would. But do not resort to the jargon
of law unless it is necessary to convey your point more clearly and concisely.
EDWARDS, supra note 41, at 228.
60
. See, e.g., EDWARDS, supra note 41, at 341; OATES & ENQUIST, supra note 35, at 12126;
STRUNK, JR. & WHITE, supra note 35, at 2325; WYDICK, supra note 35, at 722; WILLIAM ZINSSER,
ON WRITING WELL 616 (7th ed. 2006).
61
. EDWARDS, supra
deemphasizes the importa
62
. ZINSSER, supra note 60, at 6.
63
. See, e.g., BOUCHOUX, supra
WYDICK, supra note 35, at 6970.
2012] WHAT IS “GOOD LEGAL WRITING”? 435
is particularly true in the context of transactional drafting, where the
reader may incorrectly assume that synonyms have slightly differ-
ent connotations, but it also applies in the context of expository writ-
ing.
64
Repetition is also helpful for emphasis. Repeating key words
or phrases in a document can be an effective way to highlight them
for the reader.
65
And while there are sometimes downsides to this
type of repetition (e.g., redundancy can make the writing less en-
gaging and less concise),
66
points more pronounced.
The legal-writing literature discusses a number of other factors
that make writing clear.
67
These include the following: eliminating
meta- -clearing
68
not overusing negatives,
69
avoiding noun strings
70
and
nominalizations,
71
and preferring the active voice.
72
More recently,
commentators have discussed how the format of the printed page
and the typography of a document can affect ability to
comprehend the text.
73
And while it is beyond the scope of this Arti-
cle to discuss all of these factors in detail, there is one other factor
64
. EDWARDS, supra note 41, at 228; OATES & ENQUIST, supra note 35, at 546.
65
. See, e.g., BRONSTEEN, supra note 35, at 59; ENQUIST & OATES, supra note 23, at 2
66
. LECLERCQ, supra results in lengthy documents and unin-
67
. For a good overview on writing clear paragraphs and sentences, see generally HELENE
S. SHAPO ET AL., WRITING AND ANALYSIS IN THE LAW 20948 (5th ed. 2008).
68
. - -
t is im-
See EDWARDS, supra note 41, at 27980; see also CHARROW ET AL., su-
pra note 41, at 16365; NEUMANN, supra note 30, at 229; OATES & ENQUIST, supra note 35, at
11517.
69
. BOUCHOUX, supra note 40, at 8384; WYDICK, supra note 35, at 7172.
70
. See, e.g., WYDICK, supra note 35, at 71; CHARROW ET AL., supra note 41, at 19293.
71
. EDWARDS, supra note 41, at 22324; LECLERCQ, supra note 41, at 5859; WILLIAMS & CO-
LOMB, supra
feels abstract, indirect, and difficult, than lots of nominalizations, especially as the subjects of
WYDICK, supra note 35, at 2325.
72
. See, e.g., CHARROW ET AL., supra note 41, at 17376; EDWARDS, supra note 41, at 22223;
NEUMANN, supra note 30, at 23031; SCHULTZ & SIRICO, supra note 40, at 9193; WYDICK, supra
note 35, at 2728.
73
. See, e.g., Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic
and Layout Design into the Text of Legal Writing Documents, 2 J. ASSN LEGAL WRITING DIRECTORS
108, 11011 (2004) (explaining
manner so the reader can more easily understand the argument and retain more of the mate-
MATHEW BUTTERICK, TYPOGRAPHY FOR LAWYERS (2010) (explaining how typographic
style affects clarity and persuasion in legal writing and providing a primer on how lawyers
can use typography effectively).
436 DREXEL LAW REVIEW [Vol. 4:417
that merits special consideration herenamely, the organization of
74
This is because legal readers expect to
see material presented in a certain manner and will struggle to fol-
low the writing if the organization is unconventional.
75
And while
writing authorities outside of the law also stress organization as an
important aspect of clarity,
76
the need to follow conventional organi-
zation is particularly emphasized in legal writing, where an almost
formulaic organization tends to be associated with professional-
ism.
77
For that reason, teaching students the conventional forms of
organization (e.g., the IRAC format) tends to occupy a significant
part of the first-year legal writing curriculum in most law schools.
78
To sum up, there is no simple prescription for clarity. Clarity is
dependent on a number of different factors, and it is context-
dependent. The legal writer must consider carefully the purpose of
the writing, as well as the needs, interests, and background
knowledge of the intended audience when deciding what is appro-
priate for a particular document. But it is important for the legal
writer to keep in mind that clarity is the paramount goal of legal
writing, since readers can only make effective use of a document to
aid their professional decision-making if they understand the writ-
message.
74
. NEUMANN, supra note 30, at 55.
75
. See, e.g., id. at 91102; BOUCHOUX, supra note 40, at 10918; CALLEROS, supra note 20, at
DERNBACH ET AL., supra note 35, at 11532; LECLERCQ, supra note 41, at 722;.
SHAPO ET AL., supra note 67, at 11759.
76
. See, e.g., STRUNK, JR. & WHITE, supra
deliberate prelude to writing. The first principle of composition, therefore, is to foresee or de-
WILLIAMS & COLOMB, supra
note 37, at 1788
document).
77
. See ENQUIST & OATES, supra note 23, at 36 (following the IRAC format is the common
practice in the legal profession and expected for memos and briefs).
78
. Almost everyone who has taken an introductory legal writing course in an American
law school during the last fifteen to twenty years is familiar with some variant of the IRAC
format for organizing legal analyses. For a detailed discussion of that format, see CALLEROS,
supra note 20, at 7194.
2012] WHAT IS “GOOD LEGAL WRITING”? 437
B. Good Legal Writing Is Concise
The second fundamental quality of good legal writing is concise-
ness.
79
Conciseness is often confused with brevity, but concise writing
is not merely brief, or brusque.
80
Rather, it is efficient. Concise writ-
superfluous
words, and with an appropriate level of detail.
81
What constitutes the appropriate level of detail for any given
document depends on the context. Often, it is simply not possible to
explain a complex idea with the same degree of economy as one can
express a simple idea.
82
A motion in limine on a minor point of evi-
dence and a complicated appellate brief on an important matter of
constitutional law may both be written in a concise fashion, even
though the appellate brief is much longer and more detailed than
the motion in limine. The difference in length and detail is appropri-
ate not only because of the relative complexity of the issues, but also
because the appellate court has more time to give a careful reading
to each brief. The interests and needs of the intended audience are
paramount here: the appellate judges likely have more time and a
greater inclination to read a more detailed and nuanced brief than a
trial judge with a crowded docket. Concise writing, therefore, is of-
ten brief, but it is always efficient. Within any given context, the
writing makes its points in the most economical way.
Jor-
dan v. Duff & Phelps, Inc.:
83
A corporate employee at will quit, owning shares that he
had agreed to sell back to the corporation at book value. The
79
. Most legal-writing texts extol the virtues of concise writing. See, e.g., BOUCHOUX, supra
note 40, at 10207; DERNBACH ET AL., supra note 35, at 19598; NEUMANN, supra note 30, at 217
19; ENQUIST & OATES, supra
States, conciseness is heralded
80
. STRUNK, JR. & WHITE, supra
sentences short, or avoid all detail and treat subjects only in outline, but that every word
81
. To exemplify colloquially the difference between the two prongs of conciseness: effi-
ciency means not using ten words to say what can just as well be said in six words, while em-
ploying the appropriate level of detail means not telling someone about the history of watch-
making when they ask what time it is.
82
. GARNER, supra note 57, at 48 (noting that it is not possible to convey all concepts in
WILLIAMS &
COLOMB, supra note 37, at 118n-
not communicate every complex idea in a short one: you have to know how to write a sen-
83
. 815 F.2d 429, 444 (7th Cir. 1987).
438 DREXEL LAW REVIEW [Vol. 4:417
agreement was explicit that his status as a shareholder con-
ferred no job rights on him. Nevertheless the court holds
that the corporation had, as a matter of law, a duty, enforce-
able by proceedings under Rule 10b-5 of the Securities Ex-
change Act, to volunteer to the employee information about
change his mind about quitting, although as an employee at
will he had no right to change his mind. I disagree with this
holding. The terms of the stockholder agreement show that
there was no duty of disclosure, and since there was no du-
ty there was no violation of Rule 10b-5.
84
In one short paragraph, Posner effectively describes the essential
facts,
no words in dealing with a matter of some complexity, the para-
graph is (fittingly, for a Law and Economics guru such as Judge
Posner) a model of efficiency.
So what is it about conciseness that makes it a fundamental quali-
ty of good legal writing? Most commentators seem to just take it as
an article of faith that conciseness is a virtue. Strunk and White, for
a paragraph no unnecessary sentences, for the same reason that a
drawing should have no unnecessary lines, and a machine no un-
85
But they do not state that reason, nor is it at all
obvious that conciseness in writing can be justified on the same
grounds as not adding a superfluous part to a machine, or not add-
ing an extra line in a drawing.
86
One possible rationale, as some legal writing texts note,
is that
concise writing is clearer than writing that is not concise.
87
Because it
is less complex, concise writing is generally easier to digest. A se-
cond possibility, as discussed in the subsequent Section, is that con-
ciseness is part of what makes writing engaging.
88
Writing that is not
84
. Id.
85
. STRUNK, JR. & WHITE, supra note 35, at 23.
86
. See id. at 2324. Are we to assume, for example, that a drawing that depicts a flock of
birds in flight has more birds than necessary if it has twelve birds in the picture rather than
eleven, or perhaps ten? How would that determination be made? And does it really involve
the same rationale as eliminating superfluous words from a sentence?
87
. See, e.g., NEUMANN, supra note 30, at 217e more clear
ELIZABETH FAJANS ET AL., WRITING FOR LAW PRACTICE 163
88
. STRUNK, JR. & WHITE, supra
2012] WHAT IS “GOOD LEGAL WRITING”? 439
concise is frequently turgid and ponderous;
89
the reader tends to
lose interest having to slog through an unnecessarily long text in or-
But conciseness cannot be a fundamental quality of good writing if
these are its only virtues. For if conciseness were valuable only be-
cause it made writing clearer and more engaging, it would merely
be an extrinsic goodnot something valued for its own sake, but ra-
ther a virtue ultimately reducible to the qualities of clarity and en-
gagement. If conciseness is a fundamental (i.e., irreducible) quality,
then there must be something more to itsomething that makes it
valuable in its own right. What is it? To answer that question, we
need to return to the initial premise from Part I that good legal writ-
ing is writing that facilitates the r-
decision-making. A legal reader has limited time to devote to a doc-
ument and a limited attention span. A concise piece that makes its
point efficiently and with an appropriate level of detail does not
n-
dow of opportunity. Conciseness may not be essential to all types of
writing,
90
but it is essential in the context of legal writing because the
eader of legal writing has no time to spare and either will resent
91
So conciseness is
fundamental to good legal writing because it helps readers make ef-
fective use of their limited time. That promotes efficient decision-
making by allowing legal actors to devote the appropriate amount
of time to each of their decisions, rather than spending an excessive
amount of time on one decision and having to shortchange another
as a result.
How then does a writer make writing concise? At first blush, that
would seem to be an easy questionjust shorten the document. But
the answer is actually more complicated. For concise writing, as dis-
cussed above, is not principally about brevity; rather, it is about effi-
ciency and conveying the appropriate level of detail. Concise writ-
ing is writing that is as succinct as possible without unduly restrict-
ing the amount of information conveyed. As Strunk and White
89
. NEUMANN, supra note 30, at 217.
90
. For example, literature that is read purely for pleasure or for its aesthetic appeal may
not be subject to this considerationindeed, readers of fiction sometimes wish a piece could
go on longer, just because it is an enjoyable read.
91
. NEUMANN, supra note 30, at 217.
440 DREXEL LAW REVIEW [Vol. 4:417
propose, the writer must eliminate all unnecessary words from sen-
tences, and all unnecessary sentences from paragraphs.
92
The tricky part, of course, is in knowing what words and sentenc-
sentence without impairing the meaning in any way, then making
the sentence more concise is easy. And making a sentence more con-
cise can make it clearer as well.
93
As discussed in the previous sec-
tion on clarity,
94
most of us can benefit from meticulous editing of
our own work to eliminate clutter.
95
But sometimes the task is more
difficult. Occasionally conciseness can be achieved only by eliminat-
ing qualifiers from a sentence that make the sentence slightly more
accurate but that are not essential. And sometimes conciseness can
be achieved only by eliminating details that make a paragraph
slightly more thorough. In these situations, the legal writer needs to
make a judgment call as to whether being a bit more accurate or
the document.
96
While there are no simple rules of thumb to guide
the legal writer in making these decisions, the legal writer should
keep in mind the important role conciseness plays in facilitating the
-making when attempting to strike the
appropriate balance.
C. Good Legal Writing Is Engaging
Good legal writing is clear and concisealmost no one disputes
that.
97
However, there is more to it than just those two qualities.
Good writing, as opposed to merely competent writing, also engages
92
. See supra text accompanying note 85.
93
. Eliminating unnecessary qualifiers is one way that conciseness can enhance clarity. See
Nelson P. Miller, Why Prolixity Does Not Produce Clarity: Francis Lieber on Plain Language, 11
SCRIBES J. LEGAL WRITING
(citation omitted) (quoting Francis Lieber)).
94
. See supra text accompanying notes 6062.
95
. For a helpful discussion of the different types of clutter that can inhibit conciseness, see
WILLIAMS & COLOMB, supra note 37, at 10011.
96
. See id. in] a style that seems complex, you must deter-
mine whether it needs to be so complex to express complex ideas precisely . . . . [A] style
97
. In fact, a survey of judges, lawyers, and legal-
& ButleRitchie, supra note 12, at 85; see also Kristin K. Robbins, The Inside Scoop: What Federal
Judges Really Think About the Way Lawyers Write, 8 LEGAL WRITING r-
2012] WHAT IS “GOOD LEGAL WRITING”? 441
the reader.
98
This Section discusses why engaging the reader is im-
portant to good writing and what it is that makes writing engaging.
It then examines the potential for conflict between the qualities of
engagement and clarity, and the need for the legal writer to strike an
appropriate balance between these two fundamental qualities.
1. The importance of engaging the reader
Lord Denning, a well-known British jurist, described the im-
portance of engaging the reader as follows:
No matter how sound your reasoning, if it is presented in a
dull and turgid setting, your hearersor your readerswill
turn aside. They will not stop to listen. They will flick over
the pages. But if it is presented in a lively and attractive set-
ting, they will sit up and take notice. They will listen as if
spellbound. They will read you with engrossment.
99
In other words, readers will not want to keep reading a docu-
ment, no matter how clear and concise it is, if it does not engage
their interest.
100
To appreciate the importance of engagement as a fundamental
quality of good legal writing, consider the following paragraph:
Our client is Bill Smith. Smith has filed a lawsuit in federal
court. It is a personal injury case. Smith was watching a
softball game. Smith got hit with a softball. He was injured.
He suffered a concussion. Smith received treatment at
Methodist hospital. He now seeks damages. He claims to
is entitled to damages for mental injuries. He wants us to
find out. This memo addresses that issue.
This paragraph is unquestionably clear and concise, just like the
would be a stretch to call it well written. Why? Well, because the
style is tedious and monotonous. It is the writing equivalent of the
98
. I do not include transactional documents in this analysis of the fundamental qualities
of legal writing, even though there is certainly overlap between the qualities of good writing
and the qualities of good drafting. For example, contracts that are drafted in a clear and con-
cise style are considered better drafted, other things being equal, than contracts that are not
clear and concise. Engagement, however, is not a significant area of overlap.
99
. GARNER, supra note 57, at 39 (quoting LORD DENNING, THE FAMILY STORY 216 (1981)).
100
. ZINSSER, supra
442 DREXEL LAW REVIEW [Vol. 4:417
ightforward, but lacking any stylis-
tic depth that would make it interesting.
n-
currence in Whitney v. California:
101
Those who won our independence by revolution were not
cowards. They did not fear political change. They did not
exalt order at the cost of liberty. To courageous, self-reliant
men, with confidence in the power of free and fearless rea-
soning applied through the processes of popular govern-
ment, no danger flowing from speech can be deemed clear
and present, unless the incidence of the evil apprehended is
so imminent that it may befall before there is opportunity
for full discussion. If there be time to expose through dis-
cussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more
speech, not enforced silence. Only an emergency can justify
repression. Such must be the rule if authority is to be recon-
ciled with freedom. Such, in my opinion, is the command of
the Constitution.
102
The Brandeis excerpt is unquestionably clear and concise. But it
It is crisp and powerful, and
compels the reader to keep reading.
103
It encourages the reader to
engage with the material by agreeing with it, disagreeing with it, re-
t-
ing that is engaging stimul it is this
quality that separates truly good legal writing from merely compe-
for the reader to glean necessary information from a document be-
cause it makes the reading process more laborious. And that in turn
upon the document.
101
. 274 U.S. 357 (1927).
102
. Id. at 377.
103
. As one commentator puts it, good writing is not just clear and concise, it also
Plain Language in Transition, 84 MICH. B. J. 46, 46 (2005).
2012] WHAT IS “GOOD LEGAL WRITING”? 443
2. What makes writing engaging
What, then, makes writing engaging to the reader? On this point,
the legal-writing literature is fairly extensive. This Section discusses
the main tools good writers use to engage the reader.
structures, for example, can make the text more engaging.
104
Writing
that is overly repetitive in its syntax gets tedious; conversely, writ-
ing that has appropriate variation in the length and pattern of the
sentences, with smooth transitions between sentences, has a natural
flow
105
that variation in speech patterns enlivens conversation.
106
And the
same holds true with respect to individual words: using a more ex-
pressive vocabulary
107
adds interest to writing.
108
As Joseph Wil-
Dick-and-
109
In addition to variety, other, more abstract factors also determine
voice, for
example, contributes significantly. If the writing style seems stilted,
reader is diminished.
110
Some law students seem to emulate the style
they see in older cases when they first try to write legal memoranda
and briefs, apparently thinking that this is the way lawyers are sup-
104
. BOUCHOUX, supr
OATES & ENQUIST,
supra V]ariety in sentence length helps create an interesting and varied
WYDICK, supra n-
105
. For
see WILLIAMS & COLOMB, supra note 37, at 68
Id. at 69 (em-
phasis omitted).
106
. See SCALIA & GARNER, supra note 32, at 112.
107
. Id.
108
. For this reason I take issue with the advice of certain commentators who set out an
overly simplified writing style as a model for lawyers to emulate. See, e.g., MARK HERRMANN,
THE CURMUDGEONS GUIDE TO PRACTICING LAW 18 (2006). Such writing may be clear, but it
can also be torturous in large doses. Nevertheless, I have had some success referring particu-
larly wordy stu
strike a happy medium between the Spartan style of writing they see in that book and their
current writing style.
109
. WILLIAMS & COLOMB, supra note 37, at 43.
110
. See GARNER, supra
sounding like a machine. Or an old- to learn to sound like
444 DREXEL LAW REVIEW [Vol. 4:417
posed to write. But the result is writing that is artificial-sounding
and lifeless, full of legal jargon and stilted constructions. Other stu-
dents come to law school having learned to write in a stuffy, intel-
lectual style that they apparently picked up from their exposure to
it is ponderous and dense, using a lot of words to say relatively
little.
These types of writing fail to engage the reader because they em-
ploy a voice that is not authentic.
111
The writing style comes across
as artificial to the reader. A writer who writes in an inauthentic
voice tends to produce tepid prose.
112
It is not necessarily bad; it just
lacks character and individuality. J.B. White, one of the principal
figures in the law and literature movement, describes the develop-
e-
coming an effective lawyer:
Law, as you can see, is for me a kind of writing, at its heart
less of an interpretive process than a compositional one. The
central task for the lawyer from this point of view is to give
herself a voice of her own, a voice that at once expresses her
own mind at work in its best way and speaks as a lawyer, a
voice at once individual and professional.
113
It is difficult to define the concept of voice.
114
Basically, though, it
refers to a style that comes naturally to the writer, so that a glimmer
ality reveals itself through the text.
115
A writ-
e-
hind the document.
116
a-
mous pronouncement in favor of forced sterilization in Buck v.
Bell:
117
111
. For an interesting book-length treatment of the topic of voice, see TOM ROMANO,
CRAFTING AUTHENTIC VOICE (Lisa Luedeke ed., 2004).
112
. Id.
113
. JAMES BOYD WHITE, THE LEGAL IMAGINATION, at xv (abr. ed. 1985).
114
. See J. Christopher Rideout, Voice, Self, and Persona in Legal Writing, 15 LEGAL WRITING,
67, 7477 (2009) (providing a brief history of the concept of voice and describing the difficul-
ties in defining the concept).
115
. See ZINSSER, supra yourself when you
116
. See, e.g., RALPH FLETCHER, WHAT A WRITER NEEDS
I mean written words that carry with them the sense that someone has actually written them.
Not a committee, not a computer: a single human being. Writing with voice has the same
117
. 274 U.S. 200, 207 (1927) (citation omitted).
2012] WHAT IS “GOOD LEGAL WRITING”? 445
It is better for all the world, if instead of waiting to execute
degenerate offspring for crime, or to let them starve for their
imbecility, society can prevent those who are manifestly un-
fit from continuing their kind. The principle that sustains
compulsory vaccination is broad enough to cover cutting
the Fallopian tubes. Three generations of imbeciles are
enough.
118
The reasoning and result of this decision may be open to question,
d-
ing presence comes through loud and clear, and the power of
Court dissented from such a dubious holding.
Of course, in the context of legal writing, individuality is con-
tions of a professional tone
and their desire for uniformity. A law firm, for example, may im-
pose certain style limitations on its lawyers in order to bring a level
119
Still, legal writers need
not aspire to rigid conformity. Even within the confines of legal
writing, there is room for individuality. The legal writer who is able
to project an authentic voice while still maintaining a professional
tone will produce a more engaging style of writing.
Occasionally, as in a work of fiction, the writer may make effec-
s
amusing dissent in Pennsylvania v. Dunlap,
120
for example, illustrates
this technique. In his recitation of the facts, he cleverly employs the
point of view as well as the voice of the arresting officer in order to
was probable cause to make an arrest:
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics
Strike Force, was working the morning shift. Undercover
surveillance. The neighborhood? Tough as a three-dollar
steak. Devlin knew. Five years on the beat, nine months
with the
in the neighborhood.
Devlin spotted him: a lone man on the street corner. An-
118
. Id.
119
. See, e.g., HERRMANN, supra note 108, at 18 (describing the rules that govern writing
style in th
120
. 555 U.S 964 (2008) (Roberts, J., dissenting), denying cert. to Commonwealth v. Dun-
lap, 941 A.2d 671 (Pa. 2007).
446 DREXEL LAW REVIEW [Vol. 4:417
other approached. Quick exchange of words. Cash handed
over; small objects handed back. Each man then quickly on
his own way. D o-
kens. He radioed a description and Officer Stein picked up
pocket. Head downtown and book him. Just another day at
the office.
121
For the most part, however, the most effective voice in legal writ-
writer would normally speak.
122
But it does reflect a style that comes
naturally to the writer, rather than a style that the writer mimics or
assumes for effect.
123
to incorporate humor into writing.
124
The occasional use of humor in
the appropriate context makes the experience of reading more en-
joyable for the reader (assuming the reader has a sense of humor),
interest.
Humor can be particularly effective in legal writing when it is
used to soften the blow of an unpopular message. Consider, for ex-
Murphy v. Steeplechase Amuse-
ment Company.
125
There, the New York Court of Appeals held that
the assumption-of-risk doctrine prevented recovery by a young man
injured on an amusement-
rationale for the decision as
follows:
One who takes part in such a sport accepts the dangers that
121
. Id. at 448; see Melissa H. Weresh, Chief Justice John Roberts’ Blog-Style Dissenting Opin-
ion Garners Mixed Reviews, 68 THE IOWA LAW., Dec. 2008, at 12, 12-13 (2008) (analyzing the
Dunlap, including the appropriateness of its humorous tone).
122
. See BRYAN A. GARNER, LEGAL WRITING IN PLAIN ENGLISH 4850 (2001). Garner sug-
t-
er needs to develop a good ear for how his writing sounds in order to develop a natural voice.
writing.
123
. ZINSSER, supra
you are. Relax and say what you want to say. And since style is who you are, you only need to
be true to yourself to find it gradually emerging from under the accumulated clutter and de-
your
style, your voice. Just as it takes time to find yourself as a person, it takes time to find yourself
124
. For a good overview of the effective use of humor in judicial opinions, see Thomas E.
Baker, A Review of Corpus Juris Humorous, 24 TEX. TECH L. REV. 869 (1993).
125
. 166 N.E. 173 (N.Y. 1929).
2012] WHAT IS “GOOD LEGAL WRITING”? 447
inhere in it so far as they are obvious and necessary, just as
a fencer accepts the risk of a thrust by his antagonist or a
spectator at a ball game the chance of contact with the ball.
The antics of the clown are not the paces of the cloistered
cleric. The rough and boisterous joke, the horseplay of the
crowd, evokes its own guffaws, but they are not the pleas-
ures of tranquility. The plaintiff was not seeking a retreat for
meditation. Visitors were tumbling about the belt to the
merriment of onlookers when he made his choice to join
them. He took the chance of a like fate, with whatever dam-
age to his body might ensue from such a fall. The timorous
may stay at home.
126
By using a dry, tongue-in-cheek tone to suggest that a vigorous
reasonably expect to be flopped about, Cardozo makes the applica-
tion of an otherwise harsh doctrine seem more palatable to the read-
a-
thies for the injured plaintiff and invites the reader to conclude that
the plaintiff voluntarily assumed the risk of injury. This type of hu-
mor is what William Zinsser refers to as
realize that humor is often their best tooland sometimes their only
tool
127
Of course, contextual considerations are important when it comes
to humor. At times the subject matter at issue may make humor in-
appropriate or even in bad taste.
128
And inappropriate humor is ac-
tually counter-productive because it causes the reader to disengage
from the text. Some commentators, in fact, think that humor should
be avoided altogether in legal writing because it too often backfires
by trivializing serious matters.
129
So in every instance the legal writ-
er should carefully weigh the advantages and disadvantages of em-
ploying humor, and use it in legal documents only with considera-
ble discretion.
126
. Id. at 174.
127
. ZINSSER, supra note 60, at 207.
128
. See Marshall Rudolph, Note, Judicial Humor: A Laughing Matter?, 41 HASTINGS L. J. 175,
179 (1989) (lamenting the excessive and inappropriate use of humor in judicial opinions).
129
. See, e.g., EDWARDS, supra note 41, at 215; MICHAEL D. MURRAY & CHRISTY H. DESANC-
TIS, LEGAL WRITING AND ANALYSIS
448 DREXEL LAW REVIEW [Vol. 4:417
ability to tell a compelling story.
130
Outside of a purely academic set-
ting, the law is inherently tied up with events in the lives of real
people. Briefs and memoranda do not just concern arcane legal con-
cepts; rather, they concern the problems and challenges people face
in their everyday lives, individually or collectively.
131
And when
people discuss these problems and challenges, they do so by telling
The story is the most basic way we
have of organizing our experience and claiming meaning for it. We
start telling the stories of our lives as soon as we have language, and
132
So the legal writer who can effectively
convey factual information through narrative is much more likely to
facts in cut-and-dried fashion.
Consider, for example, how Lord Denning describes the facts in
Miller v. Jackson,
133
a case concerning some rather simple allegations
of negligence and nuisance:
In summertime village cricket is the delight of everyone.
Nearly every village has its own cricket field where the
young men play and the old men watch. In the village of
Lintz in County Durham they have their own ground,
where they have played these last 70 years. They tend it
well. The cricket area is well rolled and mown. The outfield
is kept short. It has a club house for the players and seats for
the onlookers. The village team plays there on Saturdays
and Sundays. They belong to a league, competing with the
neighboring villages. On other evenings after work they
practice while the light lasts. Yet now after these 70 years a
judge of the High Court has ordered that they must not play
there anymore. He has issued an injunction to stop them.
He has done it at the instance of a newcomer who is no lov-
er of cricket. This newcomer has built, or has had built for
130
. See ZINSSER, supra note 60, at 261good old-fashioned storytelling
on why storytelling is effective and how writers construct a compelling story, see RICHARD K.
NEUMANN, JR. & SHEILA SIMON, LEGAL WRITING 199204 (2008).
131
. See Kenneth D. Chestek, The Plot Thickens: The Appellate Brief as Story, 14 LEGAL WRIT-
ING n-
132
. WHITE, HERACLES BOW 169 (1985).
133
. [1977] Q.B. 966, 976 (Eng.).
2012] WHAT IS “GOOD LEGAL WRITING”? 449
him, a house on the edge of the cricket ground which four
years ago was a field where cattle grazed. The animals did
not mind the cricket. But now this adjoining field has been
turned into a housing estate. The newcomer bought one of
the houses on the edge of the cricket ground. No doubt the
open space was a selling point. Now he complains that
when a batsman hits a six the ball has been known to land
in his garden, or on or near his house. His wife has got so
upset about it that they always go out at weekends. They do
not go into the garden when cricket is being played. And
the judge, much against his will, has felt that he must order
the cricket to be stopped: with the consequence, I suppose,
that the Lintz Cricket Club will disappear. The cricket
ground will be turned to some other use. I expect for more
houses or a factory. The young men will turn to other things
instead of cricket. The whole village will be much the poor-
er. And all this because of a newcomer who has just bought
a house there next to the cricket ground.
134
In one long paragraph composed almost entirely of simple, plain
sentences, Lord Denning is able to spin a very compelling narrative.
It provides the reader with all the essential facts. But it does so in a
way that is highly persuasive as well as engaging. The narrative sets
up an almost archetypal conflict between happy villagers and a
troublesome interloper that practically begs for resolution in favor
Judge Learned Sheldon v. Metro-Goldwyn Pic-
tures Corp.
135
provides another good example of effective storytell-
ing. In that opinion, the court awarded injunctive relief as well as
compensatory damages to the authors of a play who had brought a
copyright infringement action against a movie producer. Judge
ells the historical story that provides the basis
for the plot in both the play and the movie: the story of a young
woman named Madeleine Smith who faced trial in Scotland in 1857
for allegedly poisoning her lover with a cup of arsenic-laden hot
chocolate. The opinion then goes into significant detail comparing
the specific plots and dramatic techniques of the play and the movie.
It also discusses the plot of a contemporaneous novelagain based
upon the story of Madeleine Smithwhich the defendant movie-
producer claimed the movie was based upon. (The movie-producer
134
. Id.
135
. 81 F.2d 49 (2d Cir. 1936).
450 DREXEL LAW REVIEW [Vol. 4:417
had purchased the rights to the novel but not the play.) After sum-
marizing all three stories in a lively manner worthy of a novelist,
and demonstrating the significant overlap among them, Judge Hand
136
writers disregard storytelling altogether, merely reciting factual ma-
points rather than stories about real people. But in doing so, these
writers lose a powerful persuasive tool. A growing body of litera-
ture indicates that most people, including judges, make decisions
more readily on the basis of stories that they can relate to their own
experiences than they do through argument, statistics, or logic.
137
As
the Denning and Hand opinions illustrate, effective storytelling en-
138
And thus a
document that effectively blends legal analysis with narrative will
be more engaging and persuasive than a document that focuses
solely on legal arguments and the dry recitations of facts.
139
136
. Id. at 56.
137
. See, e.g., W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE
COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE 8190 (1981) (using studies of ju-
ry trials to argue that jurors rely primarily on stories told by the witnesses and lawyers to pro-
competing claims);
STEVEN LUBET, NOTHING BUT THE TRUTH: WHY LAWYERS DONT, CANT, AND SHOULDNT HAVE
TO TELL THE WHOLE TRUTH
Judging by the Numbers: An Empirical Study of
the Power of Story, 7 J. ASSN LEGAL WRITING DIRECTORS 1, 1922 (2010) (presenting empirical
evidence that judges prefer briefs that stress narrative); Linda H. Edwards, The Convergence of
Analogical and Dialectic Imaginations in Legal Discourse, 20 LEGAL STUD. F. 7, 2840 (1996) (argu-
ing that narrative is an essential component of our thinking about legal rules and principles);
Elizabeth Fajans & Mary R. Falk, Untold Stories: Restoring Narrative to Pleading Practice, 15 LE-
GAL WRITING 3, 1546 (2009) (arguing that storytelling can enhance the effectiveness of plead-
ings such as complaints); Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer For Law-
yers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 RUTGERS L.J.
459, 46580 (2001) (discussing the benefits of storytelling for persuasion and explaining how
to incorporate the techniques of fiction writing to tell stories in briefs). For a good overview of
the scholarly literature on storytelling and the reasons why people are persuaded through sto-
ries, see J. Christopher Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 LE-
GAL WRITING 53, 5378 (2008).
138
. See generally MICHAEL R. SMITH, ADVANCED LEGAL WRITING: THEORIES AND STRATE-
GIES IN PERSUASIVE WRITING 3241 (2d ed. 2008) (explaining how and why narrative tech-
139
. See Foley & Robbins, supra note 137, at 464s-
sional storytellers [and] should develop that skill, and that those who do develop it will have a
decided advantage over those who do notLegal Storytelling: The Theory and the
2012] WHAT IS “GOOD LEGAL WRITING”? 451
Other tools that skillful writers use to engage readers have their
roots in classical rhetoric.
140
One such tool is what classical rhetori-
cians called pathos,
141
with the reader
level of engagement by making the reader more receptive to the
142
To be sure, pathos is not just influenced by writ-
ing style.
143
The facts themselves are normally the principal driver of
over the inherited facts. Still, the way the legal writer tells the cli-
text connects with the reader at an emotional level.
144
For one thing,
d-
ing which facts to include, which facts to emphasize, and how to ar-
Practice—Reflective Writing Across the Curriculum, 15 LEGAL WRITING 259 (2009) (discussing the
persuasive power of storytelling).
140
. These include devices such as metaphors and literary allusions.
For a good overview
of these devices, see OATES & ENQUIST, supra note 35, at 591603. For a more detailed discus-
sion of metaphors, literary allusions, and other so-called rhetorical figures of speech that have
their roots in the classical age, see SMITH, supra note 138, at 195340. See also infra text accom-
panying note 204 (regarding the role metaphor plays in elegant writing).
141
. Aristotle, probably the principal architect of classical rhetoric, described rhetoric as
ARISTOTLE,
RHETORIC (c. 33530, B.C.E.), reprinted in POETICS AND RHETORIC 93, 105 (W. Rhys Roberts
trans., Barnes & Noble classics ed., 2005). He then identified ethos, logos, and pathos as the three
Id. at 10409. In simple terms, ethos involves establishing
credibility with the audience, logos involves persuasion through the use of rational argument,
and pathos
audience. For a general overview of these concepts, see SMITH, supra note 138, at 94101.
142
. The literature discusses pathos primarily as a tool for making writing more persuasive,
rather than a tool for making it more engaging. See, e.g., ARISTOTLE, supra note 141, at 10409;
SMITH, supra note 138, at 84, 87119. Thus, pathos is more closely associated with what I have
referred to as the effectiveness of a document (see supra text accompanying notes 2329), rather
than the quality of its writing per se. Nevertheless, even a non-persuasive document that con-
nects with the reader at an emotional level (e.g., through effective storytelling) is usually more
ersuade.
143
. In fact, for Aristotle, pathos was only tangentially relevant to writing at all, as he was
ARIS-
TOTLE, supra note 141, at 105.
144
. See SMITH, supra o-
cate to evoke emotions based on the facts of the matter is to present the facts in the context of
Advocacy and Emotion, 3 J. ASSN
LEGAL WRITING DIRECTORS.
uth Anne Robbins, Harry Potter, Ruby
Slippers and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal
Hero’s Journey, 29 SEATTLE U. L. REV
that storytelling is a
452 DREXEL LAW REVIEW [Vol. 4:417
range the factual presentation.
145
Of course, simply omitting key
facts can backfire because the writethos) suffers if
the reader gets the sense the writer is hiding something.
146
But even
if two stories are based on the exact same events, they can make sig-
nificantly different impressions on the reader depending on how the
writer organizes the facts, as well as which facts are emphasized or
de-emphasized.
147
emotional response. By employing emotive words that resonate
held feelings and values, the writer can
n-
currence in Whitney v. California
148
to the founding -
our independence by revolution,
a-
patriotism and civic duty.
149
They also inspire a feeling of communi-
ty between the writer and the reader by calling attention to their
shared heritage and their shared political values.
In addition to these straightforward devices for incorporating pa-
thos into a document, commentators have also discussed some sub-
tler ways the legal writer can engage the reader by influencing the
of pathos by tapping into certain narrative myths, metaphors, and
archetypes that resonate with the reader, such as the story of a hero
on an epic journey or quest.
150
A growing body of literature has dis-
understanding of the world, and in how lawyers and judges inter-
145
. See SMITH, supra note 138, at 8485 (describing how the legal writer can affect the emo-
tions of the reader through the strategic inclusion, emphasis, and organization of the facts pre-
sented).
146
. EDWARDS, supra note 41, at 338 (explaining that omitting material facts from a brief
147
. SCALIA & GARNER, supra note 32, at 9396 (discussing the importance of strategic em-
phasis and juxtaposition in crafting a persuasive statement of the facts).
148
. 274 U.S. 357, 37280 (1927) (Brandeis, J., concurring).
149
. Id. at 37578.
150
. See Robbins, supra note 144, at 790800 (discussing the archetype of the heroic journey
and how it can be incorporated into persuasive legal writing).
2012] WHAT IS “GOOD LEGAL WRITING”? 453
pret legal arguments.
151
By incorporating these types of structures
harness the powerful emotions that archetypal narratives evoke in
us.
152
Ruth Anne Robbins, for example, argues that o-
ple respondinstinctively and intuitivelyto certain recurring sto-
ry patterns and character archetypes, lawyers should systematically
and deliberately integrate into their storytelling the larger picture of
traying their individual clients as
153
Of course, some clients are more
easily cast as heroes than others.
154
s general point
about the psychological effect of tapping into narrative archetypes is
well taken.
A lawyer seeking to employ pathos in a legal document needs to
be judicious, however. Blatant emotional appeals can be counter-
productive if they make judges feel like they are being manipulat-
ed.
155
And sometimes the use of pathos is simply not productive. For
example, pathos is less effective in cases where the law is relatively
clear-cut than in cases where the law is reasonably subject to inter-
pretation.
156
Likewise, since pathos is primarily a tool of persuasion,
151
. See, e.g., Robbins, supra note 144, at 790800; see generally Linda H. Edwards, Once Up-
on a Time in Law: Myth, Metaphor, and Authority, 77 TENN. L. REV. 883 (2010) (exploring some of
the cultural archetypes that influence legal analysis).
152
. See Greig E. Henderson, The Cost of Persuasion: Figure, Story, and Eloquence in the Rheto-
ric of Judicial Discourse, 75 U. TORONTO Q
embedded into our psyches along with a storehouse of images, archetypes, stereotypes,
myths, formulas, plots, and so forth. Narrativity, the innate capacity to generate and compre-
153
. Robbins, supra note 144, at 76869.
154
. In fact, given the realities of litigation, it is likely the exceptional case that lends itself
readily to portraying the client as a heroic figure. It may be true, as one old advertising cam-
-company client is
engaged in some kind of heroic quest. Thus, litigators more commonly rely on archetypes like
the villain and the careless bumbler in pitching their cases to juries. In other words, rather than
trying to portray their own clients as heroes or saints, lawyers tend to focus on portraying the
opposing party as either malevolent or incompetent.
155
. See SMITH, supr
SCALIA & GAR-
NER, supra
Kathryn M. Stanchi, Feminist Legal Writing, 39 SAN DIEGO L. REV. 387, 396-97 (2002) (arguing
that judges can be insulted by obvious emotional appeals because they imply that the judges
are susceptible to irrational arguments).
156
. See SMITH, supra
matter at hand are clear, the emotional facts and values implicated by the matter will be less
significant in the decision-making process . . . . If, on the other hand, the law on a legal issue
454 DREXEL LAW REVIEW [Vol. 4:417
it is generally not as useful where the central purpose of the docu-
ment is merely to convey information rather than to persuade, as in
an office memorandum.
157
But the appropriate use of pathos in a
briefeven an appellate brief
158
can make an argument more
compelling, partic
of justice and fairness.
159
Thus, in determining whether to take ad-
vantage of pathos, the legal writer should evaluate the context of a
document, taking into account the purpose of the document, as well
as the needs, interests, and background of the intended audience.
Finally, in order for a legal document to be appropriately engag-
ing, it is important that the document strike a proper tone. This is a
difficult concept to define, but essentially it involves making sure
that the subject matter of the document and writing style are in
160
Sup-
the defendant that is otherwise well written (i.e., is clear and con-
cise), but its tone is too matter-of-fact or even friendly.
The letter
would more effectively engage the reader if its tone were more seri-
consequences of not settling. Otherwise, the tone interferes with the
g-
n-
e of
the brief is inappropriate, the reader (i.e., the judge) may take of-
p-
propriate to the subject matter of the document may cause the read-
er to disengage.
or its application to the matter at hand is unclear, then pathos will play a significant role in the
decision-
157
. BRONSTEEN, suprc-
the facts of the case are likely to have an emotional impact on the jury or the judge, so that the
lawyer or client reading the memorandum can make a rational assessment of potential dam-
ages. But it is not the purpose of an advisory memo to stir the passions of the reader through
the use of pathos; that is likely to be counterproductive if the goal is to enable the decision-
maker to calmly and rationally assess the options. So while a memorandum does need to
evaluate the potential role pathos will play in a case, it does not itself need to connect with its
intended audience at an emotional level.
158
. See Shepherd & Cherrick, supra note 144, at 16165; Chestek, supra note 131, at 13036.
159
. SCALIA & GARNER, supra note 32, at 2627.
160
. For more on the topic of tone in legal writing, see Bret Rappaport, Using the Elements of
Rhythm, Flow, and Tone to Create a More Effective and Persuasive Acoustic Experience in Legal Writ-
ing, 16 LEGAL WRITING 65, 99107 (2010).
2012] WHAT IS “GOOD LEGAL WRITING”? 455
3. The tension between engagement and clarity
Clarity and engagement are both fundamental qualities of good
legal writing, yet at times these qualities may conflict. When they
do, the skillful legal writer needs to find an appropriate accommo-
dation between them. Consider, for example, the use of repetition.
As discussed in Part I, repetition is a device that writers sometimes
use to ensure that their message is clear to the reader.
161
Yet it can al-
so make writing less engaging if the writer gets bored hearing the
same message repeatedly.
162
Likewise, the use of simple sentences
163
But at the same time, one way to make writing more engaging is to
vary linguistic patterns, such as sentence structure and word use.
164
Certain narrative techniques that make writing more engaging
can also conflict with the goal of clarity. Consider, for example, how
writers present factual accounts. The simplest and most straight-
forward way to present facts is chronologically. When the facts are
presented in a linear time sequence, the story is easy to follow. But
writers sometimes present stories in a non-linear fashion (i.e., out of
chronological sequence) in order to emphasize certain facts and cre-
ate an interesting narrative.
165
Think, for example, of the movie Pulp
Fiction,
166
where Quentin Tarantino divides the story into a number
of discrete scenes, but then presents the scenes out of chronological
order. The result is an interesting and compelling story: by challeng-
ing the viewer to figure out exactly what is happening and when,
Tarantino adds intrigue to the plot and keeps the audience engaged.
But while the technique helps to make the movie engaging, it also
detracts somewhat from the clarity of the plot because it makes the
storyline more difficult to follow. So when telling stories, the legal
writer needs to strike a balance between simple but dull chronologi-
cal presentations of the facts and more complicated and interesting
narrative accounts that may not be quite as clear.
167
161
. See supra text accompanying note 65.
162
. See LECLERCQ, supra n-
163
. See supra text accompanying notes 4042.
164
. See supra text accompanying notes 104109.
165
. For a more detailed discussion of this narrative technique, see FAJANS ET AL., supra
note 87, at 20005.
166
. PULP FICTION (Miramax Films 1994).
167
. FAJANS ET AL., supra
complex layering in fiction, but it produces costly and time-consuming litigation in legal doc-
uments, especially rule-
456 DREXEL LAW REVIEW [Vol. 4:417
In striking an appropriate balance between the qualities of clarity
and engagement, the legal writer should carefully evaluate the con-
text of the document, looking to its purpose
168
as well as the needs,
interests, and background knowledge of the intended audience.
When in doubt, the legal writer should err on the side of clarity. As
discussed in Part II,
169
a document is of little use to a legal reader if
the reader does not understand what the writer is trying to say.
170
But at the same time, a justifiable aversion to legalese and turgid le-
gal prose should not push legal writers into a reactionary mode,
whereby they completely abandon stylistic interest in the name of
clarity.
171
Writing that is engaging holds e-
cause it makes the job of reading less arduous, and it also stimulates
III. ELEGANCETHE HALLMARK OF GREAT LEGAL WRITING
Legal writing that is clear, concise, and engaging is good writing.
As discussed in the previous sections, such writing facilitates a
172
Yet there is some-
thing about the very best examples of legal writing that goes beyond
these three fundamental qualities. The best legal writing is not just
writing that is especially clear, concise, and engaging; rather, what
characterizes great legal writing is a separate, aesthetic quality,
which I will refer to as elegance.
173
It is because of this aesthetic quali-
168
. For a discussion of the principal purposes of legal writing, see OATES & ENQUIST, su-
pra note 35, at 45 (describing the principal purposes of legal writing as explaining, persuad-
ing, and memorializing). I am indebted to Brian Simpson for his suggestion that justification
may be another basic purpose of legal writing. Judicial opinions exhibit this purpose. One
could argue that the purpose of a judicial opinion is to persuade the reader that the court is cor-
rect; however, that seems too strong because the decision has already been made and there is
no further need to convince the reader. Alternatively, one could argue that the purpose of a
judicial opinion is merely to explain e-
cause something more is going on besides a dispassionate effort to educate. What the judge is
really attempting to do is justify the decision of the court to the readeran objective that is re-
lated to persuasion and explanation, and yet different.
169
. See supra text accompanying notes 3334.
170
. See GARNER, supra note 57, at 40.
171
. See id. at 46 (stressing the importance of writing style and quoting Voltaire for the
172
. See supra text accompanying note 30.
173
. .
Some commentators use the term eloquence to refer to this aesthetic quality. See, e.g., OATES &
ENQUIST, supra
memorable, striking, even poetic because the writer has paid attention to the sound, rhythm,
s-
2012] WHAT IS “GOOD LEGAL WRITING”? 457
ty that we often refer to the finest examples of writing as being
ne thing
there will certainly be, which those who speak well will exhibit as
their own; a graceful and elegant style, distinguished by a peculiar
artifice and
174
Great legal writing, therefore, is writing that,
in addition to facilitating legal decision-making, also exhibits an ar-
tistic flair.
The value of elegance in writing does not principally reside in its
functionality.
175
Rather, elegance adds value to writing for the same
reason that beauty is valuable in any human endeavor: it gives ex-
y-
cholog he pursuit of beauty is one of
the most universal and most persistent efforts of mankind in all ages
176
Likewise, George Santayana, the well-known,
twentieth-century philosopher, described the pursuit and apprecia-
tion of beauty as a fundamental and pervasive human drive, and an
integral part of human nature:
In all products of human industry we notice the keenness
with which the eye is attracted to the mere appearance of
things: great sacrifices of time and labour are made to it in
the most vulgar manufactures; nor does man select his
dwelling, his clothes, or his companions without reference
to their effect on his aesthetic senses. Of late we have even
learned that the forms of many animals are due to the sur-
vival by sexual selection of the colours and forms most at-
tractive to the eye. There must therefore be in our nature a
very radical and wide-spread tendency to observe beauty,
and to value it. No account of the principles of the mind can
be at all adequate that passes over so conspicuous a
faculty.
177
thetic. Rather, it entails persuasiveness, forcefulness, and fluency. See 1 SHORTER OXFORD ENG-
LISH DICTIONARY 808 (5th ed. 2002) (defining eloquence
WEBSTERS COLLEGIATE DICTIONARY 375 (11th ed. 2003) (defining eloquence
term to d
quality of engagement discussed in Part II than to the quality of elegance.
174
. MARCUS TULLIUS CICERO, On the Character of the Orator, in ON ORATORY AND ORATORS
19 (J.S. Watson trans., 1878) (c. 55 B.C.E.).
175
. But see infra text accompanying notes 194197 (noting that elegant writing may be
more persuasive).
176
. Carl E. Seashore, In Search of Beauty in Music, 28 THE MUSICAL Q. 302, 302 (1942).
177
. GEORGE SANTAYANA, THE SENSE OF BEAUTY 56 (1955).
458 DREXEL LAW REVIEW [Vol. 4:417
Thus, it should not be surprising that we would value beauty in
writing, just as we do in all of our creative endeavors. A utilitarian
object such as a chair or a watch is not considered museum-worthy
merely because of its functional qualities; instead, it is principally
the artistic quality of the design that makes it a great watch or a
great chair. So too with writing: great writing transcends its func-
tional purpose and exhibits an artistry not found in ordinary writ-
ing. As Joseph Williams puts it,
Anyone who can write clearly, concisely, and coherently
should rejoice to achieve so much. But while most of us pre-
fer bald clarity to the density of institutional prose, others
feel that relentless simplicity can be dry, even arid. It has the
spartan virtue of unsalted meat and potatoes, but such fare
is rarely memorable. A flash of elegance can not only fix a
thought in our minds, but give us a flicker of pleasure every
178
But even if we grant that literature and perhaps even some works
of prose can be beautiful or elegant, and that this quality is the hall-
mark of great writing generally, is there really such a thing as a
beautifully written brief or legal opinion? And even if elegance is at-
tainable in legal writing, it is really a worthy goal for the legal writ-
er, given the practical nature of the profession? After all, lawyers
and judges write documents to aid professional decision-making,
not to entertain audiences or create great works of literature.
While these are certainly worthwhile questions, an examination of
some of the great writing in the field demonstrates that elegance
while definitely not commonplaceis attainable in legal writing,
and that it has value, at least in certain contexts. Three well-known
First Amendment cases help to illustrate this point.
West Virginia Board of Edu-
cation v. Barnette.
179
In that case, the Court upheld an injunction pre-
venting enforcement of a state regulation requiring school children
to salute the American flag. Writing for the majority, Justice Jackson
paints a stark picture of the dangers inherent in state-coerced na-
tionalism and the repression of dissenting views:
Struggles to coerce uniformity of sentiment in support of
some end thought essential to their time and country have
been waged by many good as well as evil men. Nationalism
178
. WILLIAMS & COLOMB, supra note 37, at 141.
179
. 319 U.S. 624 (1943).
2012] WHAT IS “GOOD LEGAL WRITING”? 459
is a relatively recent phenomenon but at other times and
places the ends have been racial or territorial security . . .
and particular plans for saving souls. As first and moderate
methods to attain unity have failed, those bent on its ac-
complishment must resort to an ever-increasing severity. As
governmental pressure toward unity becomes greater, so
strife becomes more bitter as to whose unity it shall be.
Probably no deeper division of our people could proceed
from any provocation than from finding it necessary to
choose what doctrine and whose program public educa-
tional officials shall compel youth to unite in embracing. Ul-
timate futility of such attempts to compel coherence is the
lesson of every such effort from the Roman drive to stamp
out Christianity as a disturber of its pagan unity, the Inqui-
sition, as a means to religious and dynastic unity, the Siberi-
an exiles as a means to Russian unity, down to the fast fail-
ing efforts of our present totalitarian enemies. Those who
begin coercive elimination of dissent soon find themselves
exterminating dissenters. Compulsory unification of opin-
ion achieves only the unanimity of the graveyard.
180
Next consider Justice Br-controversial opinion in Tex-
as v. Johnson,
181
another famous case involving the American flag.
The issue there was whether flag burning was constitutionally pro-
tected speech. The Court held that it was. Writing for the majority,
Justice Brennan delivers a powerful defense of free speech:
forbidding criminal punishment for conduct such as John-
or the feelings it inspires . . . . We are tempted to say, in fact,
will be strengthened, not weakened, by our holding today.
Our decision is a reaffirmation of the principles of freedom
and inclusiveness that the flag best reflects, and of the con-
sign and source of our strength . . . . The way to preserve the
about these matters. It is to persuade them that they are
wrong . . . . And, precisely because it is our flag that is in-
180
. Id. at 64041.
181
. 491 U.S. 397 (1989).
460 DREXEL LAW REVIEW [Vol. 4:417
uniquely persuasive power of the flag itself. We can imag-
ine no more appropriate response to burning a flag than
message than by saluting the flag that burns, no surer
means of preserving the dignity even of the flag that burned
than byas one witness here didaccording its remains a
respectful burial. We do not consecrate the flag by punish-
ing its desecration, for in doing so we dilute the freedom
that this cherished emblem represents.
182
Miller
v. Civil City of South Bend.
183
In that case, the majority held that non-
obscene nude dancing performed as entertainment was subject to
protection under the First Amendment as a form of expression.
184
In
his dissent, Judge Easterbrook takes issue with the majr-
acterization of nude dance as a legitimate form of expression.
185
While not as emotionally charged as the Jackson and Brennan opin-
i-
cial prose:
Pervading this opinion is a belief that states may draw no
lines where art is concerned. Sophisticates go to the muse-
o-
Salome. If the First Amendment protects these expressions,
the argument goes, Joe Sixpack is entitled to see naked
women gyrate in the pub. Why does this follow? That a
dance in Salome expresses something does not imply that a
s Anna Karenina was a
stinging attack on the Russian social order implies that the
scratching of an illiterate is likely to undermine the Tsar.
Rembrandt applied paint to canvas; a bucket of paint hurled
at a canvas also deposits paint. A conclusion that Rem-
is expressive. Juvenile delinquents who deface subway cars
l-
182
. Id. at 41820.
183
. 904 F.2d 1081, 112031 (7th Cir. 1990) (en banc) (Easterbrook, J. dissenting), rev’d sub
nom. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
184
. Id. at 113031.
185
. Id. at 1131.
2012] WHAT IS “GOOD LEGAL WRITING”? 461
loquial sense, but they are not communicating ideas beyond
their disdain for the sensibilities of others. The First
Amendment does not let a government draw lines based on
the viewpoint the performer expresses; it does inquire
he freedom
of thoughts through conductis the foundation for its
application.
186
Jackson, Brandeis, and Easterbrook are all widely regarded as ex-
ceptional writers. And the excerpts set out above unquestionably
exemplify writing that is clear, concise, and engaging. But what sets
these opinions apart as models of great legal writing is the elegant
manner in which they are written.
187
They have a literary quality
188
that is lacking in ordinary documentseven those that are consid-
ered very well written. Even if you do not agree with one or more of
the results, you find yourself wanting to read the language of the
first time, but because you want to pause and admire the craftsman-
ship of the writing.
189
There is something about the cadence of the
sentences, the juxtaposition of the words, and the vividness of the
descriptions that, while difficult to analyze, appeals to our aesthetic
sensibilities.
190
186
. Id. at 1125 (citation omitted).
187
. One could object here that elegance is subjective, and that people will sometimes dis-
agree as to what constitutes an example of elegant writing. But that objection does not un-
dermine the argument that elegance is the hallmark of great legal writing. People may occa-
sionally disagree as to whether a particular object such as a vase or a chair is elegant too. But
nevertheless, the reason why a particular vase or chair ends up as a museum piece is precisely
because a majority of people (or at least a majority of those who make decisions about these
types of things) regard the object as beautiful, even if some others disagree. So elegance can
still be the distinguishing characteristic of great legal writing (that is, an essential part of what
it means for a piece of writing to be considered great), even if people sometimes disagree as to
whether a particular piece of writing deserves that accolade.
188
. For a comprehensive discussion of the relationship between legal opinions and litera-
ture, see RICHARD A. POSNER, LAW & LITERATURE 32985 (3d ed. 2009).
189
. See Henderson, supra
itself is drawing upon the literary function by making us conscious of the words themselves
190
. i-
nation of words, causing them to explode in the mind? Who knows why certain notes in mu-
sic are capable of stirring the listener deeply, though the same notes slightly rearranged are
STRUNK, JR. & WHITE, supra note 35, at 66.
462 DREXEL LAW REVIEW [Vol. 4:417
Opinions such as these demonstrate that elegance in legal writing
is attainable,
191
and that it is a worthy goal, at least with respect to
certain types of legal writing, such as important judicial opinions.
192
After all, writing (even legal writing) is a creative endeavor, and
creativity by its very nature opens up the possibility of artistry. As
new out of existing materials
193
Furthermore, elegance may make writing more persuasive. As
discussed above, the pursuit of elegance is a pervasive human quest,
common to all of our creative endeavors.
194
Even in such seemingly
unlikely fields as physics and mathematics, scholars look to ele-
gance as an important criterion for e
discoveries.
195
As the physicist Hans Albert Einstein once observed
of his famous father,
than of a scientist as we usually think of them. For instance, the
highest praise for a good theory or a good piece of work was not
196
Just as elegance can make a scientific or mathematical theory more
compelling, it can sometimes make a legal document more compel-
ling as well.
197
It is beyond the scope of this Article to analyze precisely what it is
that makes writing elegant.
198
Ever since Plato, philosophers have
191
. See DERNBACH ET AL., supra
writing should and often does approach the level of good literature. Many judicial opinions,
for example, are remembered not only for their ideas but also for the way in which the ideas
192
. It is not entirely coincidental that I chose three First Amendment cases to illustrate the
quality of elegance. The lofty ideas that we associate with First Amendment jurisprudence
lend themselves well to elegant descriptions, in a way that more mundane topics may not.
193
. WHITE, supra note 113, at xiv.
194
. See supra text accompanying notes 176177.
195
. See, e.g., H. E. HUNTLEY, THE DIVINE PROPORTION: A STUDY IN MATHEMATICAL BEAUTY
75 feeling for beauty, however, can produce a mental ferment and gener-
ate new ideas in mathematics, and can serve as a guide to truth is an affirmation that many
A. ZEE, FEARFUL SYMMETRY: THE SEARCH FOR BEAUTY
IN MODERN PHYSICS e-
dictive science and not as a subject fit for aesthetic contemplation. But, in fact, aesthetics has
IT MUST BE BEAUTIFUL: GREAT EQUATIONS
OF MODERN SCIENCE xixvi (Graham Farmelo ed., 2002) (describing how some great scientists
such as Einstein and Dirac have refused to accept theories that could not be expressed as
beautiful equations).
196
. JAMES W. MCALLISTER, BEAUTY AND REVOLUTION IN SCIENCE 96 (1996).
197
. See ENQUIST & OATES, supra
198
. I am grateful to Linda Edwards for her helpful suggestions as to what contributes to
elegance in expository writing.
2012] WHAT IS “GOOD LEGAL WRITING”? 463
expounded on the nature of beauty, yet still it remains an elusive
concept.
199
Nevertheless, we can get some guidance from the math-
ematicians and scientists who have written on this topic. They tend
to associate elegance with simplicity and symmetry,
200
and it is like-
ly that elegance in writing is closely associated with those traits as
well. Indeed, Joseph Williams, who has provided perhaps the most
thorough account of elegant expository writing, argues that the
main factor contributing to
symmetry among its parts, one echoing another in sound, rhythm,
201
He then goes on to show how great
writers achieve symmetry and balance through devices such as co-
ordination of sentence parts and climactic emphasis.
202
It may also be useful to look to poetry for guidance as to the na-
ture of elegance in writing, for it is in poetry that we most often dis-
cover writing that we think of as beautiful or elegant. And thus
some of the traits normally associated with elegance in poetry prob-
ably contribute to elegance in prose as well. For example, the ways
that individual words sound to us by virtue of literary devices such
as rhyme, alliteration, and onomatopoeia, and the manner in which
words are combined and emphasized
203
to create rhythms in sen-
tences, give elegant writing a sort of auditory appeal that is similar
to the appeal of music.
204
Likewise, the mental imagery elegant writ-
ing creates through its use of vivid words and metaphor
205
gives ele-
gant writing a sort of visual appeal that resembles the appeal of the
199
. For a brief overview of the history of aesthetics and a summary of more recent devel-
opments in the field, see Peg Zeglin Brand, Symposium: Beauty Matters, 57 J. AESTHETICS & ART
CRITICISM 110 (1999). For a more comprehensive survey of the field, see WLADAYSHAW TA-
TARKIEWICZ ET AL., HISTORY OF AESTHETICS (2005).
200
. See, e.g., ZEE, supra note 195, at 821 (discussing symmetry and simplicity as the hall-
marks of elegance in science). Curiously, this notion of elegance could also have a bearing on
contract drafting. One could make a reasonable case that a contract that is simple and sym-
n-
tent, is elegant in the same way that a scientific or mathematical theory is elegant.
201
. WILLIAMS & COLOMB, supra note 37, at 141.
202
. Id. at 14152.
203
. For a thorough discussion of emphasis, see id. at 8298.
204
. See Rappaport, supra note 160, at 6768 (tracing the common connections between
music and writing and suggesting that much of the appeal of great writing can be attributed
205
. See WILLIAMS & COLOMB, supra note 37, at 15660 (discussing the role metaphor plays
in elegant writing).
464 DREXEL LAW REVIEW [Vol. 4:417
visual arts.
206
In this way, elegant prose, similar to beautiful poetry,
exhibits a sensual quality that we find aesthetically pleasing.
Finally, it is important to consider when and to what extent ele-
gance is appropriate in legal writing. For while it is easy to appreci-
ate the value of elegance in a Supreme Court opinion on a matter of
considerable social significance, justifying the quest for elegance in a
typical office memorandum is an entirely different matter. Accord-
ingly, the legal writer needs to evaluate the context of a given docu-
ment in order to determine whether elegant writing is appropriate
for that document. In the context of a typical office memorandum,
for example, the principal goal is to convey information in an expe-
ditious manner in order to help the client or the senior lawyer make
wise decisions. Generally, the client is not interested in funding a
literary work and does not want to spend extra money to enable a
lawyer to produce a memorandum that is elegant. Therefore, in that
context, elegance must give way to more practical considerations,
such as cost.
On the other hand, a lawyer does not need to consciously stunt a
natural aptitude for elegant prose. The point is simply that the writ-
er should consider the context of the document in determining
whether to spend time revising the document to make it more ele-
gant. In most situations, the answer will be
concerns. Occasionally though (e.g., in an appellate brief concerning
a matter of significant public interest), the context may warrant an
effort on the part of a particularly talented legal writer to imbue the
document with a touch of elegance.
207
CONCLUSION
This Article has argued that readers judge a document to be well
document. In the case of legal readers, that purpose is to glean in-
formation that will help the reader make professional decisions.
Thus, good legal writing is writing that facilitates professional deci-
206
. This similarity to the visual arts may seem more attenuated than the similarity to mu-
sic. But it is apparent that certain words conjure up images
these images can affect our aesthetic sensibilities in much the same way that images coming
directly from our eyes affect our aesthetic sensibilities.
207
. There
manner can not only enhance the quality of a brief, but also help to make the practice of law a
more meaningful and rewarding experience.
2012] WHAT IS “GOOD LEGAL WRITING”? 465
sion-making by making it easier for legal readers to obtain infor-
mation from legal documents.
There are three fundamental qualities that enable writing to do
this: clarity, conciseness, and engagement. This Article has exam-
ined why each of these qualities is essential to legal writing, and it
has looked at how legal writers can incorporate these qualities into
their writing. Lastly, this Article has examined what it is that charac-
terizes the very best legal writing. It has argued that great legal writ-
ing is not merely writing that is particularly clear, concise, and en-
gaging; rather, great legal writing exhibits a fourth fundamental
qualityelegancethat is aesthetic in nature. Thus, the difference
between great legal writing and good legal writing is one of kind,
and not merely one of degree.
An additional, recurring theme of this Article is the need for legal
writers to be cognizant of contextual considerations, such as the na-
ture of the intended audience and the purpose(s) of the document in
determine how the writer should balance among competing inter-
may have to strike a balance between plain language and the use of
precise technical terms when determining what will be clearest to
the intended audience. Likewise, the writer may have to balance be-
tween varied sentence structures that make writing more engaging
and simple sentence structures that make it clearer. It is largely the-
se contextual considerations that help the writer determine what is
appropriate for any given legal document.
While this Article has not focused on writing pedagogy directly, it
is important to consider briefly two pedagogical implications of this
analysis. One problem with the traditional method of teaching legal
writing in law school is that it tends to inundate students with de-
tailed organizational formats (e.g., IRAC) and usage rules (e.g.,
out providing them an adequate
conceptual framework around which students can organize the in-
formation they acquire. Students learn specific techniques to im-
prove their writing, but they tend not to explore the fundamental
goals that these techniques advance. A better approach would be to
organize instruction around the type of conceptual framework set
out in this Article, which gives structure to the individual formats
and rules. In other words, instructors should concentrate their ef-
forts on getting students to strive for writing that is clear, concise,
and engaging, and they should organize their teaching of specific
techniques around those fundamental goals. Doing so will make it
466 DREXEL LAW REVIEW [Vol. 4:417
easier for students to understand and apply the specifics, and it will
also make it easier for them to balance competing interests when
their various goals conflict. Learning to write well is not a mechani-
cal process. Writers often have to make difficult choices in their
writing, as this Article has discussed throughout, and the rules will
not always guide those choices. Stepping back to examine the big
picture helps writers makes sense of the specific rules they learn and
also provides them a better understanding of when it is appropriate
to disregard or modify these rules in order to advance the broader
goals of legal writing.
208
The other main pedagogical implication of the analysis set out in
this Article -by-e-
gal-writing pedagogy. Writers do not become proficient at their craft
by memorizing a lot of picayune rules, or by applying checklists of
209
They become proficient at
writing primarily by reading the works of good writers and by prac-
ticing their own writing.
210
Focusing students on the fundamental
goals of legal writingi.e., clarity, conciseness, and engagement
while at the same time exposing them to examples of excellent writ-
ing, allows students to analyze for themselves the tools masters of
the craft employ to achieve these fundamental goals.
211
And the les-
sons learned that way are likely to be more meaningful and endur-
ing than the lessons learned by memorizing rules of grammar and
usage.
212
208
. See BRONSTEEN, supra
209
. See FISH, supra note 19, at 1415, 2021 (learning how to craft clear and meaningful
sentences is not primarily a matter of learning rules, but rather of coming to appreciate the
broader perspective of how the various constituents of sentences are logically related).
210
. SCALIA & GARNER, supra note 32, at 6164 (observing that one of the best ways to learn
how to write well is to read great writing, including writing outside the field of law); ZINSSER,
supra ake a habit of reading what is being written today and what was writ-
ten by earlier masters. Writing is learned by imitation. If anyone asked me how I learned to
I
want
211
. It is an open and important question whether this is best accomplished by exposure to
examples of good legal writing, to examples of good writing generally, or to some combina-
tion of the two. In an interview with Bryan Garner, Judge Frank Easterbrook recommended
that students of legal writing read works of fiction from authors such as Hemmingway and
Faulkner, as well as works of prose from sources such as The Atlantic or Commentary. See GAR-
NER, supra note 57, at 1617.
212
. See WILLIAMS & COLOMB, supra
just by reading this book. You must read those who write elegantly until their style runs along
your muscles and nerves. Only then can you look at your own prose and know when it is ele-
2012] WHAT IS “GOOD LEGAL WRITING”? 467
In sum, understanding the fundamental goals of legal writing is
important because it helps legal writers focus on the overarching ob-
jective of legal writing: to make it easier for readers to obtain from
legal documents information that will assist them with their profes-
sional decision-making. The ability to write in such a manner is one
of the most important skills a lawyer can possess, and developing
that skill should be one of the principal objectives of a law school
education.
