Writing tip from the Legal Watchdog (or, don’t write like a law professor)

This is my second law professor-bashing post today.  This one will be especially valuable to soon-to-be One-Ls, but hopefully will be useful to lawyers as well. 

For those of you starting law school this fall, you’ll soon learn that, if you play the game correctly and educate yourselves before walking into class, the law profs don’t really add anything to your education.  Many of them will have no experience practicing that particular area of law (or any area of law), some won’t be admitted to a bar, and some won’t even have a law degree.  In other words, after properly preparing for class, you will know nearly as much about the law as they do. 

The good news, though, is that while profs don’t add much, they are also largely harmless – some might even be funny, thus making the class time pass more quickly.  But there is one area where professors can cause you true harm, and that area is legal writing. 

Fortunately, you’ll probably have dedicated instructors (often practicing lawyers) to teach legal writing, and that will probably be the most valuable course you’ll ever take.  But if you ever come across the writing of your “doctrinal” law profs, e.g., your contract law prof, constitutional law prof, etc., read it if you must, but don’t use it to learn how to write.  Instead, run the other way.

Here’s an example of a short law prof-written “piece,” as the profs call their writing, criticizing Wisconsin’s diploma privilege.  (If you didn’t know, graduates of Marquette and U.W. don’t have to take the bar exam; they are automatically admitted to the bar in Wisconsin upon graduating and satisfying other, non-bar exam requirements.)  This prof ravages the privilege and then concludes his “piece” with this paragraph: 

In any event, my point is really not to criticize Wisconsin’s Diploma Privilege, or to argue against its temporary use in response to the Covid-19 pandemic. My point is rather to problematize the notion that something like it is a good substitute for the bar exam. Bar exams may be poor guarantors of legal competence, but so too is diploma privilege—at least as practiced in Wisconsin.

I won’t name the professor or link to the website where this was reproduced, although you can easily find it if you want.  But that doesn’t matter one bit.  I don’t want to single him out; in fact, I could have picked nearly any law prof, as they are mostly cookie-cutter (i.e., they have an “elite” law school J.D., sometimes a Ph.D. in a non-law subject, usually a clerkship, and typically zero experience as a lawyer).  The legal academy is largely self-replicating; it doesn’t like to let in any fresh air or noise from the street.

From the standpoint of a soon-to-be or practicing lawyer, what’s wrong with the law prof’s concluding paragraph?  Or, to put it more kindly and probably more accurately, why would the law prof’s style not be considered good writing for the practicing lawyer?  There are several reasons:

1. Self-contradiction.  The prof previously bashed the Wisconsin diploma privilege (rightly so, in my opinion), but then essentially states that it wasn’t his intention to do so.  Don’t do one thing and then contradict yourself.  And if his point is an incredibly fine one, i.e., that he bashed the diploma privilege but that was not his true or primary intention, well, then that’s just a meaningless point that you, as a lawyer, shouldn’t bother making. 
2. Academic jargon.  The prof uses the word “problematize.”  Don’t write, or even say, things like that.  Judges and other lawyers will mock you.  Your non-lawyer family and friends will turn and walk away from you (unless they are young marketing or HR professionals who graduated from Duke or Cornell or Davidson or somewhere like that).  The word “probelmatize” might not even show up in your spell checker.  Even if it does, don’t use it.
3. Navel-gazing.  The prof goes out of his way to take no real position, but rather to claim that the position or positions held by others might not be good ones.  Yet, he cautions, they aren't necessarily bad ones either.  This is called navel-gazing or hedging.  Profs love to do it.  So did the ancient skeptics.  Simon Critchley explains: “the skeptic is simply skeptical about the possibility of belief as such. Their counsel is to look at both sides of an issue and practice a suspension of judgment . . . in all matters. In Philo’s words, ‘There is nothing firm we can say about anything.’”  But as a practicing lawyer, you almost always will want to take a clear, firm position on behalf of your client.  Don’t be like an ancient skeptic.  Don’t be like a law professor.
4. Length.  The prof’s concluding paragraph is too wordy for our purposes.  Generally, the practicing lawyer will want to make a clear claim in as few pages as possible.  The shorter your motion or brief, the more likely a judge will read it.  And the clearer it is, the more likely a judge will give you what you want.  Repeatedly using longer paragraphs will add unnecessary pages to your document.  I’ll create my own quasi-academic phrase here: one goal of your writing should be “economy of phrasing.”  Unlike “problemetizing,” judges will appreciate this.  But don’t actually write “economy of phrasing”; just do it.

How, then, would the practicing lawyer rewrite the prof’s concluding paragraph?  Here’s one way.  Notice how it corrects all four of the above problems:

In sum, Wisconsin’s diploma privilege is even less effective than the bar exam in ensuring competent lawyers.

No self-contradiction.  No academic jargon.  A firm claim, rather than mere navel-gazing and professorial hedging.  Finally, economy of phrasing, as it reduces word count from 67 to 17.  (Imagine doing that throughout a motion or brief.) 

Mission accomplished. 

For more writing tips from the Legal Watchdog, check out this old post.  And, to One-Ls, good luck in law school this fall!