In 1936, Yale law professor Fred Rodell wrote “[t]here are two things wrong with almost all legal writing. One is its style. The other is its content.”
Some things never change, but the growth of legal blogging over the past decade would give hope to even Professor Rodell that not all legal writing must suffer from these twin deficiencies. In fact, the good professor might even be persuaded to accept that short form legal writing through blogs serves as a valuable source of legal scholarship.
In the context of a for-credit tech law internship overseen by the University of Ottawa law school this fall, I have been investigating the issues surrounding the use and usefulness of short form content in legal and other academic disciplines. I was attracted to the topic because of a project underway at my host, CanLII, to develop a companion research site built on community contributed content. A paper is forthcoming, but as the topic of harnessing value in law blogging was raised in a recent post by uber-blawger Kevin O’Keefe, I thought it would be of interest to blog on the topic as well.
Whether one is a lawyer, law student or a client, traditional legal writing usually does not bring to mind many positive associations. Why would it? It’s hermetic, too long, and packed with fancy jargon and dated phrasing. As a means of communication, it is terribly ineffective and unappealing.
Where should we go then? Let’s first establish our goal. To be useful, legal writing should effectively communicate the message in a manner understandable to the target audience. Let’s go a step further. To be truly valuable, legal writing should serve the widest audience possible in order to make the law clear and more accessible to the public as well as to the legal profession. Academic writers may disagree – that’s fine. There will always be a place and a need for exhaustively researched and narrowly focused reviews of the practical and the arcane. However, as more and more legal minds seek to contribute to scholarship and legal understanding, there is no reason for them to model their contribution on the academic template and many reasons to abandon it altogether.
Through the proliferation of law blogs, both individual and collaborative (like Slaw or firm blogs), the internet is populated with thousands (maybe tens of thousands) discrete and valuable summaries of important legal issues. Writer and reader alike are no doubt interested in maximizing the benefits associated with legal knowledge in a form that can actually be understood and possibly even enjoyed.
Bringing order to the blawg-o-verse
In his recent post, Kevin O’Keefe asked who “will harness the value of blog content?”
His question makes two assumptions. First, that blog content is valuable, and second, that the value can be further enhanced through organization.
Are law blogs valuable? Absolutely.
We are all familiar with abstracts, as well as summaries and case briefs. They allow for quicker determination of relevancy and faster search, even if their internal structures vary. Those shorter forms aren’t, of course, free from issues. Users struggle with texts containing jargon and legalese, with those poorly structured and lacking or offering excess of information. Nevertheless, even when full text is available, summaries and abstracts are still preferred by many readers. Law blogs, which are typically longer than an abstract but shorter than a law review article, offer many of the same benefits and avoid most of the pitfalls.
Many law firms, as well as individual lawyers write blogs on a variety of topics and areas of practice and a clear shift in attitude is underway within the profession and the courts to accept the idea that a well-reasoned blog posts from authoritative sources, be they in the form of a case comment or an opinion, can offer value and legitimacy on par with journal articles. Indeed, blog posts can even be superior sources when talking about accessibility, currency and relevancy. Given that most blogs are written in a more casual style, legalese tends to be greatly minimized allowing, for example, self-represented litigants and accused to educate themselves in a more effective and time-efficient manner.
So how do we “harness this value”?
Since we’re already flooded with information, wouldn’t it be nice to have it somehow organized and easier to navigate? The Internet offers the mixed blessing of abundance, and when it comes to legal information, volume is not a proxy for value. Unlike academia, where the integrity of a journal article is to a degree controlled by peer review, readers and researchers must consider various factors to gauge the quality of the information on the Web. They include, among others, the provenance of the text, its topic, context, understandability, popularity, currency and the reputation of the source.
While my perspective on the second aspect of Kevin’s thesis is no doubt influence by my placement at CanLII, I believe that well-structured sites built on short-form legal content such as that being developed by CanLII can be a very helpful tool in legal research also for lawyers and law students. Additionally, a reputable website can be an excellent platform for dissemination of legal scholarship, debates, dialogue and even a testing ground of ideas. If well done, a page like that will also serve as a great resource not only for the bar, but for the public at large by making law more accessible through reducing the barrier of one’s technical skills or computer literacy on the path to finding useful results.
Ultimately, the legal profession and the public, and not Professor Rodell, will become the judge of quality of short form legal writing, but I’d like to believe he will approve.