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 I need mention only 3.

The first problem concerns committee writing. The best writing usually comes from 1 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

The way some practicing lawyers view themselves provides a second reason primers and courses have failed. For example, many primers and courses urge lawyers to use plain language.³² But these primers and courses—

'go wrong in suggesting that, if you just tell a lawyer to stop writing like Sir Thomas More, he will. Things are not that simple … For many, jettisoning the ancient formality would mean eliminating what they think defines them as attorneys.'³³

The legal research company I co-founded, Research One Pty Ltd, encountered this kind of lawyer almost every day. These lawyers think that writing 'like a lawyer' means writing like no other group: 'awkward constructions, musty words … and Latinisms … speckle the page.'³⁴ Lawyers must change their attitudes for primers and courses on plain language to take effect. And changing attitudes takes time.

Lawyers' shortage of time provides the third and biggest problem for good legal analysis, research, and writing. Litigation involves 'an endless series of crises and deadlines … Gone are the days, if ever they existed, of reflection on legal points'.³⁵ So advice that takes time to apply, or requires care or thought, 'will be ignored in the rush of events, deadlines, and judicial impatience'.³⁶

Written advocacy suffers. George Orwell explained in 1946:

'When you are composing in a hurry … it is natural to fall into a pretentious, Latinized style. Tags like a consideration which we should do well to bear in mind or a conclusion to which all of us would readily assent will save many a sentence from coming down with a bump. By using stale metaphors, similes and idioms, you save much mental effort, at the cost of leaving your meaning vague, not only for your reader but for yourself.'³⁷

Worse still for lawyers, you may have no time to think though the next step in your argument. But the deadline forces you on. 'The result is papering over the gap in logic with the kind of verbal baloney so common in so many pleadings.'³⁸