A law professor who directs an adjunct-taught legal writing program e-mailed me this, in response to my article on the subject:
[T]he phenomenon you describe is one of my biggest hurdles. I spend a significant amount of time warning my adjuncts not to “correct” anything they can’t demonstrably show, through a reliable source, to be wrong. I also advise them to do just what you say: mark sticky usage or spelling as unwise, perhaps, or likely to inflame passions but not “wrong” unless it truly is, and to look everything up before marking it even if they’re certain they are correct. I still see “forgo” “corrected” to “forego” when it means to go without, and phrases like “have carefully reviewed” edited to put “carefully” after “reviewed,” for who knows what reason. Sigh. Even if these were actual mistakes, our students certainly have more important things to worry about in trying to improve their writing....
[Also,] I occasionally am hired by big law firms to tutor associates in legal writing. One downtown firm asked me to put on lunchtime presentations for the associates, but to begin with a session for the partners, to train them how to be effective writing coaches. I thought this was a wonderful idea. Among the things I included in that presentation was a general admonition along the lines of what you wrote: don’t mark personal preferences but rather stick to actual mistakes, for all the reasons you cite as well as some of my own. A partner objected strenuously. He said, and I kid you not, “One of the reasons I became a partner was to impose my personal preferences on others.” I was not asked back.
Kudos to EV for recognizing its importance.
Back in 1976, I wrote a law review petition that, among its other flaws, stated that the law forbids evicting a residential tenant in retaliation for reporting a building code violation. An editor told me in very condescending tones that I should have known enough to write "prohibits" instaed, because forbid always connotes an irrational or arbitrary action.
About 25 years ago, a partner edited my brief by replacing all of my active verbs with passive voice, splicing sentences together with conjunctions, and watering down everything that made the brief readable or vigorous. He told me that judges view short active sentences as a sign of overconfidence, and they rule against you as a result.
Incidents like these create the salutary urge to become one's own boss.
Possibly the dreaded Split Infinitive? A lot of people assume it's a no no.
I don't have a problem with it either, but the firm asked the professor to teach the partners how to become effective writing coaches.
If the partners are simply going to impose personal preferences, the professor's presentation is useless. It'd be like an efficiency expert called in to evaluate a process, only to have the designers tell the expert that everything is just fine the way it is. I'd be frustrated, too.
Perhaps if a partner wants a brief to reflect his stylistic preferences, he ought to write it himself? One of the things that disturbs me about the legal profession is how accepted it is that an underling (an associate or clerk) will do the work and a bigwig (partner or judge) will put their name on it. If the clerk or associate write the brief or decision, put their name on it and say that the partner or judge approves it.
I can't speak for anyone else, but I try to remember (and assume that I am expected to remember) the distinctive writing habits of the 10 or so partners I routinely work with. If nothing else, receiving the same types of edits on multiple drafts starts getting annoying after a while. I'm sure it would be different if I rarely worked with a particular partner.
Homicide. There would have been a homicide that day. I would have been taken away in chains, but one less mealy mouthed lawyer would have been around, scourging mankind.
So, the poor attorney has to use the exact words and phrases that the supervisor requires. If you don't, it's 'wrong' or 'unprofessional'. One supervisor actually told me that the word 'otherwise' is an unprofessional word! So if you don't conform, your yearly evaluation is marked down for poor writing skills.
But even if you get down your supervisor's style, that still leaves you with the top guys style, and that might be different. So yes, you write a memo, your supervisor sends it back to you all marked up with changes, which you make, and then is gets passed higher up the chain and is sent back to you with further marks made. Everyone insists you are an idiot who can't write because you have to rewrite a memo several times, even though nothing of substance has changed.
None of their names actually goes on the final product, and it is signed by the judges. The judges actually make very few changes, so you have all these divisions with distinctive styles but all signed by the same few judges. Yet everyone thinks the others are completely and totally wrong and/or idiots who can't write.
Of course, the best supervisors I ever had made few or no changes, and the memos were signed without any problems by the judges.
And this is for a very narrow act that deals with one issue for all cases.
Ego and insecurities. That's all it is. Whether you are a partner in a firm or a supervisor in an agency, it's all about forcing your style upon someone else because you are so insecure in your own writing.
I agree. But part of the problem is that legal writing professors are treated like second class professors (no tenure track, lower pay, etc.). That difference only reinforces the idea that legal writing is not that important. And I'd bet that it prevents some people who would be good legal writing professors from pursuing that field.
I guess you need to be as old as I am to recall learning how to diagram a sentence and then explain the rules of grammar that applied.
(I mind less if readers of blogs are distracted in that way.)
If an experienced adjunct or partner thinks something is wrong, he may be incorrect, but he is probably not alone.
I am a disciple of Strunk and White, and my college curriculum including a Business Writing class stressing clarity and conciseness.
Image my dismay upon encountering the professor of a senior-level management course, who insisted that we signal our big complex ideas with big, complex sentences.
But you did. ;)
Is it possible that the partner understood the thinking of judges who would be reading that brief?
There is a parallel phenomenon among elemetary school teachers who insist on good handwriting, all pointing to the teachers in the next grade who "really care" about it, or to vague "people" who judge you on neatness. They will not own up to the fact that they themselves care deeply about penmanship for whatever reason.
It costs money, my money that I'm paying my outside counsel. I don't care if the associate likes to spell "legal brief" with four m's and a silent q, if the change that a partner makes is for any reason other than to improve the legal quality of the document, then they are wasting my money, and they should stop it.
The most important day in the life of an associate (speaking from personal experience) is learning that partner X made change Y because he or she is just used to doing it that way, not because the change is right.
Sheesh.
You are correct about the cause. Law schools do not think legal writing is particularly important. At my law school, legal writing was taught by a professor outside the tenure track with our work graded and edited by 3Ls who themselves had few, if any, legal writing skills.
Because "everyone does it," legal pleadings are full of such banalities as "comes now", "party of the first part," and, my absolute favorite for the conclusion of affidavits, "further your affiant sayeth naught."
(Outside of pornography, when is the last time you actually ever heard someone SAY "comes now"?)
We have a winner. Impose your personal preferences when someone is drafting for your signature. But if you've hired smart professionals, let them develop their own style for their own work. Otherwise, you are not getting all you paid for. In my office, we have a hard enough time keeping talented writers at the rates we pay. Nit picking briefs to stroke a supervisor's ego is a luxury we can't afford. I guess I'll just have leave this particular inefficiency for the private sector to deal with.
There are limits.
The latter make a lot of money.
In fact, I'd imagine this is where a lot of the nonsense comes from - first we train it in law school with a bunch of student-run, unprofessional, non peer-reviewed journals that focus on form over content. Then we move on to firms where every incentive is to continue agonizing over italicized periods and trivial details to maximize bills... It is, of course, exacerbated by judges who then impose personal preferences onto interpretation, forcing more nonsense down the chain (I am thinking of a patent case where the judge said mounted meant there was a physical attachment, apparently never having heard of a horse).
Essentially the professor should probably hand out this article: http://www.guardian.co.uk/media/2008/jul/23/mediamonkey and discuss whether the edits are being made just for the sake of editing or for some deeper purpose.
An episode of "The Practice".
I'm surprised nobody has commented on this remark, in which Prof. Volokh's correspondent seems to say that even actual mistakes of grammar, spelling, etc. shouldn't be corrected. Sure, proper arguments and structure are probably more important, but just because I'm in a cancer ward, that doesn't mean I shouldn't get a band-aid for my cut finger. This is especially true given the likelihood that readers will be more irritated and distracted by actual or perceived mistakes in spelling and grammar than by problems with structure or argumentation.
Speaking of the latter, in roughly increasing measure of felicity -
1. "I occasionally am hired by big law firms"
2. I am hired occasionally by big law firms
3. I am hired by big law firms occasionally
4. Occasionally I am hired by big law firms
5. I am occasionally hired by big law firms
(the only rating I'm really sure of here is 1.)
My statement was that it was a possible misapplication of a rule that does not actually exist to begin with. Forgive me if that wasn't clear.
When I ask an associate to draft part of a brief, my concern is less with its style than with its effectiveness: is it clear? is it persuasive? does it lead with the strongest arguments? is it readable? Most associates' writing is over-inclusive and repetitive. My objective when I edit their stuff is usually to add by subtraction. Usually the final product leaves their words in place, but rearranged and severely pruned. When I give them my markup, I want them to see that (1) yes, they got the point right (unless they didn't, which usually doesn't happen and raises its own set of issues); (2) they can improve how they present it; and (3) I treated their professional work with respect. They work here now and probably will be here for a while, so I want their work to improve -- and that is far more important than gratifying my own ego on any individual brief.
I freely confess that when I'm done editing, the product reads almost as if I had written it. Coincidence? Nope. But so far the associates seem to enjoy working with me and don't mind coming back for more assignments. So it can't be all that bad.
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