Mentoring Legal Writers
by Scott Wood
(County Bar Update, December 2007, Vol. 27, No. 11)

 

Mentoring Legal Writers

 

Tips on helping associates meet your standards

 

By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.

 

The Chinese proverb tells us, “Give a man a fish, and he will eat for a day. Teach a man to fish, and he will eat for the rest of his life.”

 

Most senior lawyers have suffered through salvaging an associate’s poorly drafted memo or brief. After rewriting every page, the grumpy senior hands back the document, like handing the associate the proverbial fish. The senior attorney hopes that, magically, the associate will learn how to “do his own fishing.” But that’s an idle hope. The associate needs coaching.

 

Most legal writing projects are team efforts with associates providing the research and generating the early drafts. After the drafts circulate, often with changes made by several rewriters, the senior attorney puts it into final form. Although the norm is team effort, many senior lawyers lack the skills to coach associates on their legal writing. Yet such skills are not only essential for the associate’s professional development but also for the quality of the work product, not to mention the senior lawyer’s efficiency and sanity.

 

Help is at hand. Here are some tips from the legal writing experts, adapted from Professor Anne Enquist’s valuable article1 reporting on her survey of 35 top teachers of legal writing. These tips have consensus support from this esteemed group that includes major figures in legal writing, such as Joseph Kimble, Richard Neumann, and Helene Shapo, and other authors of widely used legal writing text books. Each member of the group of 35 has spent years developing a method for critiquing and evaluating legal writing. Here is their wisdom for writing comments on associates’ drafts—comments that teach “how to fish.”

 

Limit the number of comments. Restrain the impulse to make the draft bleed red. In fact, don’t pick up a red pen or any other such weapon until you have read the draft at least twice. After the reading, decide on the major areas of concern. Do not correct or comment on everything. If the analysis is wrong, don’t waste time fine-tuning the sentence structure. A few narrowly focused comments are more effective than a shotgun spray.

 

Make macro comments first. Critique the legal analysis and reasoning first. If the fundamentals are wrong, the organization also will be flawed. It makes no sense to tinker with the organization until the correct law has been accurately and persuasively applied to the relevant facts.

 

If the fundamental analysis is right, check the large-scale organization next. Are the issues in logical order? Are the headings concise and readable? Is each point fully developed in a series of paragraphs that are linked by transitional topic sentences or other linking devices?

 

After commenting on the macro, turn to the sentence level, the diction and tone. But keep in mind the tip on limiting comments. Rather than edit every sentence, consider rewriting one paragraph as a model. The associate can emulate the microfeatures in that model, e.g., short, active voice sentences; lively verbs; zealous but civil tone.

 

Use marginal notes to convey a reader’s experience. Questions and comments that record your contemporaneous reaction to the text give the critique a personal voice. The associate reads what the reader was thinking when the text stumbled or jumped:

“I needed more facts to be persuaded.”

“I wondered about answering their counterargument.”

“This seemed to jump. Can you add a transition?”

“This was a strong analogy—maximized the precedent.”

These comments are easy to generate because you are simply recording your thoughts as you read. More importantly, they suggest the specific fix.

 

Always write a summary endnote. The experts agree that endnotes are essential. They strongly suggest beginning with one or more positive points about the draft. Some experts aim for at least three positive comments before turning to criticism. This is not only good psychology but also conducive to team spirit. Encouraged by the positives, the associate will be much more open to the negative comments, much more willing to make those changes. Usually, the endnote is read first because it provides an overall assessment of the draft. As such, the endnote is a helpful indicator of the ultimate reader’s reaction—judge, judge’s clerk, client.

 

Use TTMA. Occasionally, the problem with the draft is too complicated to express in a marginal note. Sometimes, the draft prompts fresh rethinking about the basic approach or suggests some other major revision. The experts jot TTMA—”Talk to me about...”—to both critique the draft and, most importantly, create the agenda for a conference. The associate can prepare for the particular topic rather than worry about a bolt from the blue.

 

Additional tips. These tips offer triage for the next associate draft. Of course, the experts have much more to say. Indeed, since they are experts, they disagree on a number of points. I recommend Anne Enquist’s article for a more complete guide on how to become an effective writing coach. Even senior attorneys can learn how to fish.

 

1 Anne Enquist, Critiquing and Evaluating Law Students’ Writing: Advice from Thirty-Five Experts, 22 Seattle U. L. Rev. 1119 (1999).

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