Legal Writing 201: Writing for the Real World
by Amanda E. Schlager
In most ABA-approved law schools, “Legal Research and Writing” is a class that gives far more work than credits and is typically a law student’s first exposure to one of the most important skills they will need as an attorney: writing. Most legal writing classes cover the basics—memos, motions, and briefs. When I was in law school, our textbook was Legal Writing and Analysis, by Linda H. Edwards. This book has been referred to as the “Legal Writing Bible” and I still have it on my shelf and refer to it often. So, the question I had as a young associate was, if we’ve taken a class on legal writing and have a reference that serves as a reminder after school, what more is there to learn about legal writing in life after law school? Sadly, as I have recently learned, the answer is everything.
If you work for the government or a small to mid-size firm, the odds are good that you will get to write a motion or brief within your first year or two. If you work for the government, it may be as soon as your first day so your learning curve is even steeper. (If you work for a large Am Law 50 firm, you should put this away and read it in six years when you’re done doing document review.)
Recently, as a first-year associate at a mid-sized firm, I was asked to write a reply brief for the Superior Court of New Jersey. As a first-year, the first thing I did was email my mother (so she could brag) and next I emailed my friends at bigger law firms (so I could brag). The next thing I did was go directly to my Bible, the Edwards book. I flipped to the section on motions, looked at the formatting and read a general review, and sat down to write.
In writing my reply, I began by reading the motion submitted by opposing counsel, a local New Jersey firm. I was instantly horrified—opposing counsel had written a letter memo to the judge! There was no formatting, there were no headings … there were barely any cases cited! My first reaction was, “Are they kidding?” In my next meeting with the assigning partner, I mentioned opposing counsel’s lack of formatting and asked what format I should use when writing my brief. My jaw dropped when he suggested the same format. When I mentioned that I had planned on using the format I learned in law school, he laughed and told me that the way they taught us to write in law school was not necessarily the way we should write for a judge or even a memo for a partner. We spent the next twenty minutes talking about the issues and what the feel of the brief should be—the feel would dictate the organization and formatting.
When I returned to my desk and sat down to write, I felt disoriented and unsettled. I looked at my Bible and realized it was no longer the safety net I could always fall back on. It would not always provide me with a nice little format in which I could plug-and-chug my writing. And it was not going to be the answer for every writing assignment I was given.
So what is “Legal Writing 201”? It’s a class on adaptation and growth. It’s the writing skills that we, as newly licensed lawyers, must unlearn before we can learn how to be TRUE legal writers. It’s the questions you ask a partner before you start writing—what formatting does he or she prefer? What format and style does the judge in your case like? At times, you may feel uncomfortable asking a partner these questions. As young associates, we are often afraid to ask questions for fear of looking ignorant. But as one partner at my firm told me, “As associates, you are ignorant. You can only cure that by asking questions.”
Should you ask a partner if she likes two spaces after every period? That may be a bit too detailed for a first draft and if she likes two spaces, she’ll tell you to do that in your revision. When it comes to revisions, young associates, myself included, feel that the drafts we turn in to a partner or senior associate must be perfect. We take red marks on a draft as a personal critique that we didn’t write well enough the first time.
The first memo I submitted to a major litigation partner was unrecognizable by the time it was sent to the client. I lay awake that night, quaking with fear that he would never ask me to write something for him again; the next day he told me I had done a good job. I was shocked—he had changed almost everything that I had written!
His response: “You only get better by learning what not to do. It’s a partner’s job to butcher what you do. It’s your job to learn from it.” So where do you go for “Legal Writing 201”? To the red marks. To the critiques. To the criticism and the comments. These are the places where we become better writers. Now, that’s not to say that all partners will give us valuable long-term advice. Some partners have distinct styles and as we become more senior associates, we will have more leeway in keeping our own style over theirs. However, as a young associate, it’s pretty much their way or the highway so it’s a good practice to write how your audience wants to read –whether it be a partner or a judge.
Tomorrow, a partner or senior attorney may come in and ask you to write a memo or a brief and your natural inclination may be to panic. But I’m hoping that if you’ve read this article, you’ll take a deep breath, look the partner in the eye, and ask some pertinent questions as to what he or she wants. My guess is that they’ll be impressed and willingly answer your questions in order to save time on revisions you would just have to do later. So good luck in “Legal Writing 201” and remember, red ink is good ink.
Amanda E. Schlager is an associate in the Health Care and Life Sciences Practice at the Washington, DC, office of Epstein Becker & Green, PC. Her practice focuses on litigation, fraud and abuse, and general health regulatory advice to health care entities.