Learning the Secret Handshake of Legal Writing

As I get deeper into my studies and wonder why I’m not excelling as quickly as the other 1Ls, I’m constantly getting advice from those 1Ls that have moved on. I probably just need to learn how to write the exams, they say. Not learn to write them better, mind you, but learn to write them, period.

Oddly enough, I am beginning to see the logic to this criticism. There is definitely a trick, or perhaps more a knack than a trick, to writing law exams.

If your writing style tries to go off on its own narcissistic footing as something worthy of attention on its literary merits, expect your law professor to be intimidated and insulted. After all, you can read and enjoy everything from Hemmingway to Pynchon, but please don’t try to impress anyone with your writing style if you are about to send someone to the lethal injection.

But we’ve all read enough cases by now to know that judges go off on their own narcissistic binges of bloated and self-indulging writing styles. So just what is it about writing in an individual style that genuinely pisses off law professors?

Anyone who has taken the time, and perhaps even the pains, to read anything on my blog, probably sees that I like to write and with lots of density, wringing out thoughts with as much grueling effort as wringing out a giant, sopping wet beach towel. I normally avoid brevity and clarity, since it’s artificial compared to one’s actual thought process. Then again, if it is effectively forceful—like a Karate chop—those short quips can be useful.

With my questionable but individual style, I have spent several decades trying to keep a freelance writing career going. I’m familiar with every Perry White wannabe editor who keeps carping about consistency, diction, and writing so the readers can understand. I’m a writer who late in his career also understands that sometimes those rejections can be the best of compliments. It’s not sour grapes at all to know that you are not part of an elite group of writers whose stuff you don’t like to read anyway. Any writer who doesn’t write the way he or she wants to write isn’t writing at all. Even if you will lose sympathy with the majority of readers reading your stuff, someone out there is going to pick up what you’re trying to say by the way you are trying to say it.

When I began studying law, one of the first lessons I undertook was a humorous seven-CD set on torts by a crusty New York lawyer who absolutely doted on the writing style of Benjamin Cardozo. I took that to heart at the time, but years later and reading more Cardozo opinions than I care to think about, I have even come to despise his writing style. It is a pretentious effort at elegance and flows off the tongue like syrup that is both too sweet and too thick.

Another approach to legal writing that I have heard another lawyer espouse is that it should not be stylish at all. He compared proper legal writing to the radio transcripts of Sully Sullenberger’s transmissions with air traffic controllers during his crash landing into the Hudson River. Lawyers should only say things like “can’t land there” or “must try a different spot.” “Avoid needless words,” said Strunk and White several generations ago, although probably scoring more points for being cleverly self-referential, I think, than for stating a maxim that should be worshiped like the Holy Grail.

Up to this point, these are all nitpicking observations about writing and style. What do law professors actually look for these days when they are grading an exam? A possible answer does raise valid reasons for concern. For example, one thing I’m told they look for is spaces between each element of your analysis (IRAC) and bigger spaces between each analysis itself. Is this really a reason to fail a 1L? Of course, you’ll never actually hear a law professor tell you to your face that the content of your legal analysis was OK, but he actually didn’t read it because it was a bit harsh on the eyes. In other words, he won’t actually take the trouble of distinguishing this rule from that analysis or that conclusion, if it means squinting, or taking the time to read it over if he didn’t get it the first time. Alas, there are no manuals of style that state rules for making your exams easy on the eyes of the law professor.

In fact, what law professors want to see on exams but won’t admit is a dumbed-down style. There is a shorthand to legal writing that they insist upon, but can’t actually describe. If they actually have to read something in the form of a well-structured sentence or a complete thought, they will be irritated. Even if you had the ability to memorize codes and rules verbatim, that won’t help you. Law students must write fragments of sentences that bluntly mention the words and phrases the professor wants to read to score points. Any complete thoughts will obfuscate this process and waste the professor’s precious time.

Even worse. If you write with any style whatsoever or with the idea of fleshing out an idea so that it actually makes sense to you, your professor will think you are faking it. Even worse. Your professor will think you are not trying to be a lawyer at all. Your professor will think you’re making fun of him and the entire legal profession. Lawyers have to make decisions quickly, and don’t want anyone to dwell on the fact that if you actually spend some time thinking about what they have written, it sometimes doesn’t make any sense.

I recently saw a video of famous lawyer Lawrence Lessig giving a lecture with the assistance of a Power Point presentation. Like Tom Hanks at the beginning of the Da Vinci Code, Lessig talks while basic words he uses appear on the screen. It creates a stylish sort of reverie, almost hypnotic in its power to force you to look past the meaning of what’s being said into a form of pure persuasion. It is lawyer theater.

It is also rock ‘n’ roll, with a rock star on stage. We should be learning to understand their theater much more. This is hermeneutics at its most tricky form: pure prestidigitation as a method of persuasion.

I can almost get the knack of today’s approach to legal writing if I think of it as a secret handshake. The professor won’t show you what it is, but until you learn it and then respect the secret with your life, you won’t pass your 1L exams, let alone a State Bar Exam.

My hat’s off to my colleagues who picked up on this handshake right away without thinking about it. I just hope they do think about it at some point.