WHAT THE HECK IS LEGAL WRITING? AN INTERVIEW WITH MY FAVORITE "EDITOR"

I’ve been writing for children for over twenty-five years.  The person who vets my manuscript before it leaves the house has always been my husband, Paul.  He catches all of my initial errors in spelling, sentence structure, grammar, and consistency. Sometimes our “editing conversations” get heated when he messes with my story structure.  Poor guy.  I might burst out with, “What do you mean?”  “How dare you!”  These are words I would never use with a publishing house editor and Paul's advice is usually sound.  But Paul keeps coming back for more drama when I ask him to, “Please take a look at this.”  I am eternally grateful for his wonderful skills, support . . . and patience.

Here I am with my favorite "editor."

After working over thirty years as an attorney with the Justice Department he now teaches Torts and Legal Writing at American University’s Washington School of Law.   Since he has transitioned into teaching, Paul has published numerous articles and this book.

With the recent passing of William Zinsser, author of the classic ON WRITING WELL excellence in all kinds of writing has been on my mind. 

I’ve been living with Paul for forty years but know little about legal writing.  Today I decided quiz my favorite editor on this topic.

Can you explain what legal writing is?

            Legal writing is writing done for law-trained readers in a form they expect and that meets their needs.  It uses structured legal analysis to explain how the law applies in a particular situation.  Structured legal analysis boils down to stating the issue to be addressed, stating the rule that applies to that issue, applying the rule to the facts at hand, and reaching a conclusion.  Lawyers call this IRAC (Issue, Rule, Application, Conclusion).  We use structured legal analysis for both objective and persuasive writing. 

Objective writing is explaining in a neutral fashion how the law applies in a given situation.  Here is an example.  The issue is whether your sister gave you book when she said, “I want you to have this forever,” as she handed you the book and you put it in your bag.  The Rule for a valid gift requires (1) intent to give, (2) delivery, and (3) acceptance.  Applying the Rule here is easy. (1) Your sister saying, “I want you to have this forever,” shows intent. (2) When she handed you the book she made delivery.  (3) When you put it in your bag, you accepted it.  In conclusion, because each requirement of the Rule was met there was a valid gift.  Objective writing applies the Rule to the facts to find the Conclusion.

Persuasive writing is advocacy.  Here the writer is trying to lead the reader to one conclusion rather than another.  This is an example.  The issue is whether your sister gave you book when she said, “I want you to have this forever,” as she put it on your mom’s kitchen table from which you picked it up and put it in your bag after she left.  The Rule for a valid gift requires (1) intent to give, (2) delivery, and (3) acceptance.  Applying the Rule here is easy [or so the Advocate says].  Two requirements are met: (1) your sister saying, “I want you to have this forever,” shows intent; (3) your picking up the book and bagging it shows acceptance. But the requirement (2) delivery was not met because Mom’s table is a neutral place where family members have put things for years without any thought that doing so changed the ownership of the objects.  In conclusion, because the delivery requirement of the Rule was not met there was a not valid gift. 

In this example the Advocate’s argument turns on how one requirement of the Rule applies to the facts.  An Advocate might also argue that the Issue really involves different facts or that a different Rule should be applied.  Persuasive writing begins with the Conclusion and works backward to make the facts and the Rule fit.  We know the Conclusion from the outset because whenever lawyers engage in persuasive writing they always conclude that their side wins.

What makes good legal writing?

            Good legal writing, like all good writing, can be judged objectively by whether it succeeds in accomplishing its intended purpose with the audience for whom it is written.  My students learn that Audience & Purpose form the foundation for all successful communications. 

If the purpose of a document is to advise a client about the likely consequences of a proposed action, the document will be successful if it accurately explains the matter in terms the client can trust and understand.  If a legal brief is written to persuade a judge to rule in a particular way, it will be successful if it explains the matter in a way that leads the judge to trust the writer, follow the logic of the argument, empathize with the advocate’s client, and agree with the author’s conclusion.  In both examples, details matter, clarity is critical, and sloppiness that the reader perceives will undermine the document’s credibility.

There are many successful authors of fiction who started out as lawyers, including two women in my writing group.  Are there skills learned in legal writing that transition into creative writing?

            This is a really hard question.  Successful legal writers may be more aware of the importance of Audience and Purpose than other people.  They certainly understand the importance of accuracy and clarity.  I don’t think these provide a critical advantage to writing fiction.

            I think the single biggest advantage lawyers have in writing fiction is that many lawyers spend a substantial portion of their time writing and re-writing.  We write every day. We learn to organize our thoughts, put them in a form that can be readily understood, and edit what we have written.  The constant practice may make it easier when we turn to another form of writing.