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The Deterioration of Legal Writing

Legal writing -- along with other genres of business and professional-related writing -- is deteriorating, contends this story from Financial Week. But is the erosion of quality explained by the proliferation of tools like e-mail, texting and Twitter, which encourage stream-of-consciousness ramblings and careless phrasing, as the Financial Week article suggests? Or is it, as Scott Greenfield argues at Simple Justice, that law schools themselves don't recognize the value of legal writing?

The Financial Week story highlights the need for strong, sound and precise writing skills in today's business world. From drafting change orders to communicating clearly by e-mail to dealing with participants in a global economy for whom English is not a native tongue, writing skills are more important than ever. Nonetheless,

U.S. employees appear to be falling short when it comes to writing skills. In 2006, 81% of corporate leaders rated the writing of high school graduates as deficient and nearly 28% gave similarly low marks to four-year college graduates, according to survey data compiled by a consortium that included the Conference Board and the Society for Human Resource Management.

Lawyers aren't immune from this criticism. In fact, Steve Gluckman, senior director of professional development at Manatt, Phillips & Phelps, decided to hire an outside writing coach after fielding complaints from partners about younger associates' writing abilities. The firm discovered that the poor writing was draining revenues, since partners found that they needed to devote significant amounts of non-billable time to edit associate work product.

When it comes to lawyers, the problems with legal writing may result from lack of sound teaching rather than poor habits developed through e-mail and texting. While professors like Jim Chen emphasize that legal writing matters, some law schools -- like University of Pennsylvania -- give their legal writing program short shrift by hiring third-year students to teach it.

While I believe that both factors -- the informality of e-mail and lack of quality teaching -- have contributed to the decline of legal writing skills today, I think the main problem is  the easy availability of low-cost, computerized legal research tools. These days, both students and lawyers can gorge on a glut of cheap reference sources, from today's less expensive LexisNexis and Westlaw, to tools like Casemaker or Versuslaw, to Google and other Internet search engines. Consequently, legal research has devolved into an exercise in "piling on", with lawyers adding cases and quotes merely to show strength through quantity of cases rather than quality.  At the end of the day, with so many resources available, legal analysis is suffering, and as a result, so too is the quality of legal writing, which relies on the quality of the underlying analysis for its impact and effectiveness. 

Posted by Carolyn Elefant on October 27, 2008 at 02:43 PM | Permalink | Comments (2)

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