Drafting Through The Practice Of Law One Day At A Time

First Blog Piece in the “101 Things They Don’t Teach in Law School” Series

A Series of Blog Pieces Commenting on Karen Thalacker’s

The New Lawyer’s Handbook: 101 Things They Don’t Teach You In Law School

Chapter 2, Number 7, Entitled:

“WHEN YOU’RE AN ASSOCIATE, DRAFT MEANS FINAL”

            In the past few decades, television has provided Americans with ample opportunity to latch onto this wild idea that lawyers spend all of their time in melodramatic, courtroom episodes.  When they are not in the courtroom, well, they are in the office or on the phone.  Nevertheless, even when in the office or on the phone, they are always in the middle of some unfolding and stagy scene.  We can thank shows such as L.A. Law, Law & Order, Matlock, and Suits for this hyper-personified image.  Oh, let’s not forget the myriad of movies as well.  Wasn’t that closing argument in “A Time to Kill” pure genius?  Did you close your eyes too when Matthew McConaughey’s character told the jurors to do so? Okay, so the extreme point I am hinting at here is that most lawyers do not spend their days asking Jack Nicholson if he ordered a Code Red (“A Few Good Men”), and they certainly do not proceed to guzzle a six pack in the middle of a trial to prove a point about alcohol’s effect on a person’s ability to drive a golf cart (“Franklin & Bash,” a TNT television series).  In fact, the truth could not be further from the courtroom!

            Ready for the reality check?  Most lawyers spend the majority of their time writing.  Yes, I said it—writing.  Surprise, the cat’s out of the bag!  Want-to-be law students are not told before pouring their hearts and souls into studying for the LSAT (Law School Admission Test) that they need to have a serious love affair with writing, or at the very least be okay with spending quality time with it.  And now that the mystery is unleashed for the masses, what do law schools and law students need to do about it?

            Karen Thalacker, author of The New Lawyer’s Handbook: 101 Things They Don’t Teach You in Law School (2009), addressing new associates on the issue of writing, offers the following advice.  When a senior partner asks for a draft of anything, it really means he or she wants a final version produced that can be used verbatim.  Thalacker suggests that, as a new associate in undetermined waters, this reality is something that can be controlled.  First, she suggests that the new associate should always ensure he or she fully understands the issue at hand.  Don’t be afraid to communicate with the requesting attorney.  Think about it.  It is far better to ask questions first than redo the assignment later, something likely to leave a bad taste in the partner’s mouth.  “Shooting first and asking questions later” is a good way to get cut from the team roster before ever getting up to bat.  Second, do your research!  Hey, why not?  There are law libraries and everything readily available to help with this sort of thing.  Check your cites.  Make sure the law is still good law.  Work product relying on outdated law will do far more good for the opponent than a new associate’s chances of one day making partner.  Third, she suggests that new associates enroll in a basic composition course.  Thalacker writes,

“Take an honest look at your writing skills.  Your ability to communicate in writing is essential to your success as a lawyer.  Pull out your latest writing effort.  Are there participles dangling?  Are your prepositions hanging?  Do you even know what participles and prepositions are?”

(Thalacker, p. 27).  Sarcasm aside, good writing, and more importantly, composition, are two of my pet peeves.  Thus, I could not agree more with Thalacker’s insight.  However, one should not wait until being hired as an associate to begin strengthening this skill.

            It is safe to assume that all law schools provide at least one basic legal writing course.  Some law schools have an additional rigorous writing requirement.  Regent University School of Law is one such school.  Regent law students are required to take Legal Analysis, Research and Writing (LARW) both semesters of their first year.  In addition, students must satisfy the writen requirement with another intensive writing course such as Appellate Advocacy, Advanced LARW, Drafting Contracts or Estate Planning.  While this is all well and good, what is the missing puzzle piece which Thalacker hits dead center in the bull’s-eye?  Composition.

            Most of us have not considered what a personal pronoun is or the grammatical rules for commas since college or even high school.  Therein lies the true issue.  One cannot produce worthy legal documents without remembering the basics.  The cream of the crop in any type of art, sport, or skill never forgets the beginning.  A dancer never forgets the basic principle of spotting when performing beautiful turns.  An artist never forgets the basic brush strokes of a simplistic style.  Much the same, lawyers are essentially artists—wordsmiths.  Thus, lawyers, and wise law students, never forget basic composition skills.  If the memories are rusty, then there is a need to revisit.  Legal writing is daunting enough of a task without having to constantly grab that old grammar book collecting dust on a shelf.  When the basics are remembered and embraced, then the door for artistry opens wide to the crafty apprentice.  For example, when drafting a persuasive brief, law students are taught to write in what is called the active voice, versus the passive voice.  The active voice helps creates clear and concise sentences.  Additionally, the active voice eliminates unnecessary and overused prepositions.  Essentially, the writing is uncluttered and becomes more effective overall (for more information on active voice versus passive voice click here).  In order to master this type of writing skill, one must first have a good grasp on the basics of composition (i.e., knowing how to spot the unneeded prepositions).

            Now this is not to say law schools should be tasked with re-inventing the writing wheel by bringing back your twelfth grade English teacher.  However, there should be a portion of the school’s required writing course devoted to refreshing law students’ brains with the basics of grammar and composition.  A great way to accomplish that goal—one that I have found to be invaluable—is editing others work.  Any law student allowed access to Westlaw or LexisNexis possesses a key to a vault of sample briefs and other legal documents.  Pick one and edit it.  One would be surprised by the end result of this type of exercise.  When applying a critical eye to another’s work, one is actually sharpening his or her eye for one’s own writing skills.  Fundamentally, this is putting the law student in the position of being the grader—the professor.  The role reversal is extremely powerful in helping refine a writer’s skills.  Not to mention, using a red pen to mark up a document can be really fun!  Another suggestion is correcting those pesky red marks law students receive on their own graded assignments.  Yes, I know.  We already have so much to do.  However, by working harder and smarter in the beginning, the end of the path is paved with grace and style.  Law students should take the time to sit down and revise their work.  Revise papers.  Revise exams.  Every bit helps.  In fact, one of Regent’s law professors and Assistant Director for the Academic Success Program, Gloria Whittico, is urging students to do this very task.  She is interested in studying the overall effects on students’ grades and confidence as a result.  Further, when a professor assigns a grammar/composition book or recommends one, the student should actually open it!  The professor did not take the time to recommend it for the sake of health.

My final suggestion is quite possibly the most crucial.  Even though the more sophisticated writing courses, such as Appellate Advocacy or Advanced Legal Writing, demand an abnormal amount of time, students should push themselves to enroll in these courses, as opposed to enrolling courses known to be easier and less demanding.  It is the more complex writing courses that will ensure students’ natural abilities will develop.  Additionally, if a particular law school requires only one extra writing course, in addition to the introductory one, it does not mean students should stop there.  My undergraduate college required all students to complete at least four rigorous writing courses for completion in all Bachelors’ program.  However, knowing that my writing skills were not where they needed to be, I painstakingly forced myself to complete an additional three rigorous writing courses—one being an Independent Senior Thesis discussing ignorance of the law as an allowable defense.  Personally, I found that with each additional course, I was able to focus on a new writing skill and work towards developing it.  I went into law school with the same frame of mind.  Rather than complete minimum requirement, I have continued to enroll in at least one writing course every semester.  Again, the results have proven to be beneficial.  Yes, it requires a lot of work and takes up a lot of time.  But at the end of the day, when the course was completed, I looked back at old papers and noticed an evolution in my writing.  Please understand, however, I am not suggesting law students take as many advanced writing courses as possible.  But I am asserting that students are greatly shorting themselves and their legal writing skills by only taking the courses dubbed as “easy As.” 

            Writing is an important skill for any profession.  However, it is essential to the reputation of a lawyer and his or her reputation.  In fact, Virginia Supreme Court Chief Justice Hassell—recently deceased—spoke to my class as 1Ls.  He pointed out that judges do take note of things such as grammatical errors and poor composition.  My class was warned that names are remembered.  Thus, a lawyer is doing a disservice to his or her client(s) when he or she does not put in the effort to develop necessarily writing skills. 

Karan Thalacker, in her “When You’re An Associate, Draft Means Final” section, offers sound advice that should be heeded and followed to the letter.  Yet again, it must be reiterated that waiting until after graduation to hone one’s writing skills is only wasting precious time.  Law students need to begin refining this particular skill while still in school.  After all, the three years spent working towards the coveted Juris Doctorprovides an optimal time and place for this type of learning.  I urge law schools to integrate more rigorous writing requirements into curricula.  Further, I urge law schools to intensify emphasis on the basics of grammar and composition.  The rest of the work must then necessarily fall to the law students.  Each and every law student possesses certain qualities and skills, which enabled them to gain acceptance into law school to begin with.  Just remember that for every person accepted into law school, that is one less seat available to another person that would gladly go the extra mile if it meant acceptance.  Therefore, students should challenge themselves now, while it is still tolerable to make mistakes and learn from them.  Don’t wait until a client’s personal interests are on the line to begin refining what should have been done in school.  Push through and enroll in the more difficult writing courses.  If your law school does not offer such courses, then seek outside composition courses like those Thalacker suggested above.  In a nutshell, the time to refine this precious skill and make it into art is now.  Waiting could, as Thalacker so poignantly explains, cost the new associate his or her job because the draft was not a final product.  In the end, that new associate will wind up watching the melodramatized legal television shows and movies, wishing he or she had only put in the time and effort to become an artist with words. 

-Melissa Yatsko, Legal Education Reform Initiatives Student Coordinator at Regent University School of Law