Fordham Urban Law Journal

Volume 21 | Number 2 Article 5

1994

Writing Like a Lawyer

John D. Feerick

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Recommended Citation
John D. Feerick, Writing Like a Lawyer, 21 Fordham Urb. L.J. 381 (1994).
Available at: https://ir.lawnet.fordham.edu/ulj/vol21/iss2/5

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WRITING LIKE A LAWYER

John D. Feerickt

I approach this subject from a number of perspectives: as a con-

tributor to legal writing-hopefully not bad legal writing; as a legal
educator; as a reviewer and sometimes editor of bar association
reports; as a former practicing lawyer; and as a sometimes partici-
pant in the process of drafting legislation and quasi-judicial
decisions.
I begin by conceding that there is a problem of bad legal writ-
ing-one that is far more serious than we recognize or are willing
to admit.' The causes include insufficient education in good writ-
ing, carelessness, faulty thinking and reasoning, a failure to appre-
ciate the potential and impact of legal language, an unwillingness
to risk new language, and an inability or failure to make the time
commitment required for good legal writing. The problem of poor
legal writing is not unique to our generation, as we know from the
reflections of such literary giants as William Shakespeare and
Charles Dickens. Thomas Jefferson complained that "statutes...
from their verbosity, their endless tautologies, their involutions of
case within case and parenthesis within parenthesis are rendered
more perplexed and incomprehensible 2
not only to common read-
ers, but to the lawyers themselves."
Jefferson's remarks still ring true today, and the legal profession
continues to struggle with the issue. Indeed, it seems to have be-
come part of our popular culture that when one individual says to
another, "You think like a lawyer," it is taken as a compliment;
when that individual states, "You write like a lawyer," however, it
is a serious criticism.
Good legal writing is a virtual necessity for good lawyering.
Without good legal writing, good lawyering is wasted, if not impos-
sible. Good lawyering appreciates and is sensitive to the power of
language to persuade or antagonize, facilitate or hinder, clarify or

t Many of my colleagues contributed to my thinking as expressed in this paper.

I am especially grateful to Professors Daniel Capra, James Cohen, Carl Felsenfeld,
Jacqueline Nolan-Haley, Rachel Vorspan, administrators Robert Cooper, Patti Masli-
noff, law student Lisa Lazarus and all of Fordham Law School. I also thank Alan
Rothstein, counsel at the Association of the Bar of the City of New York.
1. For example, 12 U.S.C. § 24 (1988) contains a sentence with 32 commas and
856 words.
2. THOMAS JEFFERSON, AUTOBIOGRAPHY (Paul L. Ford, ed. 1892).

381
 FORDHAM URBAN LAW JOURNAL [Vol. XXI

confuse, reveal or deceive, heal or hurt, inspire or demoralize. Of

course, language has its limitations. What we mean and think we
say may be different from what is heard or read and understood.
Different individuals may give different interpretations to lan-
guage, seeing it from their particular circumstance or context.
Some language that seems to be bad legal writing is not that at
all. Vagueness or ambiguity is sometimes deliberate. It may result
from compromises which are necessary to resolve a present dispute
even though the possibility of future disagreement or even litiga-
tion is left open. I can recall often negotiating as a labor lawyer for
an ambiguity in order to avoid a costly and damaging strike. The
Framers of the Constitution, as we know, gave us a document not
free from ambiguity.3 It created our Republic while leaving to fu-
ture Congresses and courts the development of its full meaning.
Finally, the complexities and hurried circumstances of life may
overtake the very best of efforts at effective use of written lan-
guage. This was brought home to me as a young lawyer when I
4
studied the succession provision of the United States Constitution.
The provision was adopted in the closing days of the Constitutional
Convention.5 It provided that in case of the removal of the Presi-
dent from office, or of his death, resignation or inability to dis-
charge the powers and duties of the said office, "the same shall"
devolve on the Vice President.6 The use of the pronoun "the
same" left unclear exactly what devolved on the Vice President in a
case of removal, death, resignation or inability. Was it the powers
and duties of the President, which meant he became an acting Pres-
ident, or the office itself, which meant he became President. The
ambiguity had the effect of discouraging vice-presidents, for 180
years, from standing in for the President in cases of inability. 7
When the 25th Amendment finally resolved the ambiguity, it cre-

3. See, e.g., U.S. CONST. art. I, § 8 ("to regulate commerce"); U.S. CONST. art. II,
§ 6 ("inability to discharge powers and duties of" President); U.S. CONST. art. II § 4
(impeachment for "high crimes and misdemeanors"); U.S. CONST. art. IV, sec. 2
("privileges and immunities" of citizenship); U.S. CONST. art. IV § 4 (a "Republican
form of Government").
4. See FROM FAILING HANDS: THE STORY OF PRESIDENTIAL SUCCESSION (1965);
THE TWENTY-FIFTH AMENDMENT: ITS COMPLETE HISTORY AND APPLICATIONS
(1992), both written by the author of this essay.
5. See U.S. CONST. art. II, § 1, cl. 6.
6. Id.
7. See generally FROM FAILING HANDS, supra note 4. Chester A. Arthur declined
to assume presidential authority during the 80 days President James Garfield lay in a
coma; and Thomas R. Marshall studiously avoided acting as President after Woodrow
Wilson suffered a disabling stroke. Id. at 118-29, 166-79.
19941 WRITING LIKE A LAWYER

ated another issue by using the disjunctive either/or in describing

the procedure for declaring a president disabled. 8 The Amend-
ment provided for a declaration of inability either by the Cabinet
or such other body as Congress may provide by law. The use of
"either/or" opened the possibility of two bodies with authority ex-
isting at the same time. When this language emerged in the confer-
ence committee report, days of congressional debates were
required to make clear the intent of the provision; that is, if an-
other body were created by Congress, it would replace the Cabinet
entirely in making the determination of a president's inability.9
At the core of all writing is communication. For lawyers, com-
munication is essential for many purposes: to help a client under-
stand his or her legal situation; to resolve legal problems; to set out
rights and obligations in contracts, wills, and other legal docu-
ments; and to draft laws and regulations that cover the rules the
government wants us to live by.
A failure to communicate can have serious consequences. Poor
legal papers can be refuted by opposing counsel, cast a case in the
wrong light before a judge, and affect a lawyer's credibility. Bil-
lions of dollars can turn on the interpretation of a carelessly
drafted phrase in a will or contract. An improperly drafted release
can expose a client to a lawsuit thought to be precluded. Unclear
laws can breed unclear regulations, unnecessary litigation, and per-
haps more unclear laws. For example, in the Federal Rules of Evi-
dence, Congress wrote a rule which covered impeachment of a
defendant.'" It was designed to cover only criminal defendants but
the rule did not say that." After ten years of costly litigation and
absurd results, the Supreme Court finally had12to decide that Con-
gress really had meant "criminal" defendant.
Bad legal writing can result in increased legal fees for clients,
detrimental reliance by citizens, thousands of hours of court resolu-
tion, loss of integrity for our legal institutions, and a disrespect for

8. U.S. CONST. amend. XXV, § 4.

Thereafter, when the President transmits to the President pro tempore of the
Senate and the Speaker of the House of Representatives his written declara-
tion that no inability exists, he shall resume the powers and duties of his
office unless the Vice President and a majority of either the principal officers
of the executive department or of such other body as Congress may by law
provide, transmit... their written declaration that the President is unable to
discharge the powers and duties of his office.
9. See 111 Cong. Rec. 15383-85 (1965).
10. FED. R. EVID. 609.
11. See id.
12. Green v. Book Laundry, 490 U.S. 504 (1989).
384 FORDHAM URBAN LAW JOURNAL [Vol. XXI

law and lawyers. Lawyers who do not write clearly also leave
themselves open to malpractice or disciplinary proceedings for,
among other things, misleading or failing to inform clients. There
is obviously a strong ethical and professional incentive for lawyers
to engage in good legal writing. This may mean in a lawyer's mind
that it is necessary to cover every contingency, regardless of
whether it could reasonably arise, and to assert every possible
point for fear it otherwise will be waived, no matter how attenu-
ated. The result may be boilerplate clauses which have not been
used in years, residue clauses where there is no residue, or briefs
with countless theories and points of law. Not to cast a broad net,
so to speak, runs the risk of leaving a client unprotected or without
a cause of action that the client reasonably expected to have.
To be sure, attempts to protect a client's (or lawyer's) interest
can result in excessive legalese. The writing in plain English move-
ment, in which Duncan McDonald has been a leader, offers a
worthwhile approach for solving this dilemma. But I am not sure
we can or should eliminate the legalese that is found in many trans-
actions. Some of this language may have settled and established
meaning from previous business dealings or litigation. Moreover,
the institutional pressures, regulatory concerns, and sophistication
involved in complex business transactions often require the use of
technical legal language. While such language can be used exces-
sively, it does not follow that the use of technical writing is always
bad legal writing.
Having said all of this, how do we deal with the problem of bad
legal writing? My reflections are as follows:
At the law school level, legal writing must be given greater em-
phasis. We cannot be content to say that students should have
learned to write as part of their secondary and college education.
If our programs are not able to deal with poor command of lan-
guage, grammar, and syntax, perhaps we must set a higher standard
for law school applicants than exist at the present time. Our na-
tion's medical schools have long required of their applicants a core
curriculum which includes English and other courses deemed nec-
essary to meet the educational and professional goals of physicians.
Because good writing is necessary to meet the standards of the
legal profession, shouldn't we expect that basic training in writing
be fundamental for all lawyers?
Second, we must acknowledge at the law school level that the
development of legal writing skills requires a significant time com-
mitment. Time is the single most important adversary of every stu-
19941 WRITING LIKE A LAWYER 385

dent, professor, and practitioner. We compete against it, order our

lives around it, and develop our priorities according to its dictates.
These priorities often discourage the improvement of writing skills
and perpetuate bad legal writing. It is my experience that most
full-time faculty are reluctant to teach legal writing. Professional
reputations are usually decided not by teaching writing skills to
others, but by producing scholarly articles. The result is that legal
writing programs often are not given the same emphasis as other
areas of the law school curriculum. This may be changing, how-
ever, as a result of the increasing recognition that further initiatives
are needed in the legal writing area.
At Fordham, for example, we have been helped by new pro-
grams and have implemented this year a number of new writing
initiatives. These include a program of on-site tutoring in basic
writing skills for first year students who are identified by legal writ-
ing instructors as in need of such support. 13 The tutoring sessions
are conducted by instructors from Fordham University's Writing
Center.' 4 In addition, legal writing instructors at the Law School
will be required to attend a series of workshops and seminars of-
fered by members of the English and Comparative English Depart-
ments of Fordham University.' 5 The members of these
Departments also will participate directly in our first year legal
writing program by holding class sessions on particular topics iden-
tified as useful for each section's students.
In addition, we plan to experiment with integrating a "lawyer-
ing" component into the first year legal writing course. This will
"contextualize" the writing that students do by having them draft
documents in the context of a simulated litigation experience. We
are also offering a number of advanced legal writing courses for
upper class students, including civil litigation drafting, criminal liti-

13. Students are identified by their legal writing professors as needing special sup-
port after they have submitted their first writing assignment.
14. The program is voluntary in nature, with the student working out an appropri-
ate schedule with the tutor that reflects his or her individual needs. Although the
program initially was to be mandatory, this was rejected because it might stigmatize
students and require additional work without awarding credit. In point of fact, all of
the students designated by their professors in the Fall of 1993 semester willingly
signed up for the program.
15. The seminars that the instructors are required to attend have included the fol-
lowing subjects: classroom techniques for teaching legal writing (such as writing work-
shops and peer editing); strategies for conducting student conferences; effective
techniques for editing student papers; ways to develop appropriate criteria for grading
writing assignments; and methods of assisting students whose basic writing skills are
deficient or who have problems with the writing process.
386 FORDHAM URBAN LAW JOURNAL [Vol. XXI

gation drafting, advanced memo writing, legislative drafting, and

corporate drafting. These courses will require students to draft and
redraft a series of documents in particular substantive areas. We
have concluded that a program of specialized drafting courses can
serve as a highly effective vehicle for teaching substantive princi-
ples of law as well as basic writing and drafting techniques.
In addition to these courses, we have implemented a rigorous
upper class writing requirement that obligates each student to par-
ticipate in a program of supervised analytic writing as a prerequi-
site to graduation.
Clinical legal education programs need to expand their coverage
of fact analysis to enhance the writing skills of future lawyers. Bad
legal writing frequently reflects a lack of appreciation for the im-
portance of the facts. As far as I am aware, only a few law schools
offer courses in fact analysis, let alone require students to analyze
facts in writing. Indeed, most first-year legal writing courses con-
tinue to focus on case analysis in such a way that it must appear to
students that the "facts" are immutable.
As Professor Anthony Amsterdam of New York University has
urged, law schools must systematically begin to teach analysis of
facts and to teach students how to do it in writing.' 6 These skills
should be taught because they are very different than the skills of
case or doctrinal analysis. Fact analysis requires the ability to en-
gage in different problem-solving techniques, such as brainstorm-
ing, ends-means thinking, cost-benefit analysis, risk-calculation,
problem identification analysis, and integration of legal analysis
with factual investigation.
At many schools the only courses which require students to en-
gage in fact analysis are ones in which students represent clients
under the supervision of a member of the faculty. In these courses
students learn the different problem-solving techniques appropri-
ate to fact analysis and engage in writing which requires such anal-
ysis. Legal doctrine and case analysis, although important, need to
be accompanied by training in the development of facts and
inferences.
But the issue of bad legal writing is more than a law school's
problem to solve. Practicing lawyers have a responsibility to pro-
duce legal writing that meets professional standards. I will never

16. Professor Amsterdam is a national leader in Clinical Education and is a strong

advocate of teaching the full range of lawyering skills in law school. See, e.g.,
Anthony Amsterdam, Clinical Legal Education-A 21st Century Perspective, 34 J.
LEGAL EDUCATION 612 (1984).
1994] WRITING LIKE A LAWYER

forget the assistance I received as a young lawyer from two exper-

ienced lawyers 17 who supervised my work. They brought home to
me repeatedly the message that legal writing must be clear, precise,
factually-based, and ethically sound. They never allowed a docu-
ment to go to a client, court, or regulatory agency without the ful-
lest review of its language and content. I watched them change my
words, sharpen my sentences and reduce the number of pages of
my written work, stripping it of all its verbosity and repetition.
These lawyers, and others like them, passed along to every one
with whom they worked the highest aspirations of the legal profes-
sion. While their kind of leadership may be hard to match, I sug-
gest that a failure of law firms and legal supervisors to apply such
principles may result in a violation of professional standards. Just
recently, for example, the Professional Responsibility Committee
of the Association of the Bar of the City of New York recom-
mended that the Lawyer's Code of Professional Responsibility be
amended to make law firms subject to disciplinary standards such
as a failure to supervise its lawyers or non-lawyers in their work.' 8
Despite enormous obstacles to improving legal writing through-
out the legal system, I remain optimistic that we can do something
about the problem. Perhaps there may be a time in the future
where there is no distinction in the popular mind between "writing
like a lawyer" and "thinking like a lawyer." I am unwilling, how-
ever, to predict when that is likely to happen!

17. They were Leslie H. Arps and William R. Meagher of Skadden, Arps, Slate,
Meagher & Flom.
18. See 48 Rec. Ass'n B. City of New York 628 (1993).