INTRODUCTION (page 4)

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I. THE PROBLEM

Despite a century of advice in books, courses, and articles on legal writing and analysis, many practicing lawyers still argue cases badly in writing.²⁵ The pressures on law firms and the dynamics of legal practice explain why. In ‘Why Can’t Lawyers Write?’, American litigation lawyer Christopher Lutz gives several examples of these pressures and dynamics.²⁶ We need mention only three.

The first problem concerns committee writing. The best writing usually comes from one person. Good writing ‘has a distinctive voice. There is behind it a thinking, breathing human being’.²⁷ That single person gives writing ‘sharp edges; such jaggedness gives writing shape and force’.²⁸ But lawyers often prepare briefs in committees. A lawyer distributes a draft around several other lawyers until everyone makes their edits and accepts the brief. And ‘[i]f you rub fifteen separate conceptions of style against one another, the sharp edges break off’.²⁹ Thus, briefs written jointly ‘will be smoothed to a flat, placid, uninteresting surface’.³⁰ Primers and courses on writing can do little about the problem—practicing lawyers will still write in committees. And committees cannot write.³¹

²⁵ See, for example, Maureen F Fitzgerald, ‘What’s Wrong with Legal Research and Writing? Problems and Solutions’ (1996) 88 Law Library Journal 247, 247 fn 1 (noting ‘innumerable articles have been written about the inability of lawyers to research and write’), 255 fn 24; JH Landman ‘The Problem Method of Studying Law’ (1953) 5 Journal of Legal Education 500, 506; Clifford Wallace, ‘Wanted: Advocates Who Can Argue in Writing’ (1979) 67 Kentucky Law Journal 374, 374–5, 378 fn 11, 379 fn 12 (noting ‘increasing concern by the bench, bar, and law schools toward the quality of trial and appellate advocacy’ (374) and ‘the level of written advocacy leaves a lot to be desired’ (379)).

²⁶ Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167.

²⁷ Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 170.

²⁸ Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 170.

²⁹ Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 170.

³⁰ Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 170.

³¹ Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 169.