A Framework for Teaching Good Legal Writing

A recent working paper by Mark K. Osbeck of the University of Michigan Law School, proposes a framework for understanding, and teaching, good legal writing.

Available via SSRN, What is “Good Legal Writing” and Why Does it Matter?, the paper provides an overview of the major reports and other documents that have called for increased attention in US law schools to practical “lawyering” skills, starting with the MacCrate Report of 1992. It then provides a conceptual framework for defining good legal writing, and a detailed discussion of its various elements:

[The paper] 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 duties. The article then provides an analysis of the fundamental qualities that enable legal writing to do this, concluding that there are three such qualities: 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. (abstract, p.2)

I like the emphasis on meeting the purposes of the readers of the document, because, though it may be a somewhat narrow, even idealized, view of the purposes of legal writing, it is at least a starting place that recognizes the connection between legal writing and legal reading. The development of expert legal writing and legal reading skills go hand in hand, as the writer summarizes:

[Writers] become proficient at writing primarily by reading the works of good writers and by practicing their own writing. Focusing students on the fundamental goals of legal writing (i.e., clarity, conciseness, and engagement) while at the same time exposing them to examples of excellent writing allows students to analyze for themselves the tools masters of the craft employ to achieve these fundamental goals.(p. 66)

I was alerted to this article by subscribing to SSRN’s Law & Rhetoric eJournal, available to subscribers.