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Dean’s Column: Legal Writing Advice from a Supreme Court Justice

Boston College Law School recently welcomed Supreme Court Associate Justice Elena Kagan to campus. The excitement among our students was palpable, and the Justice did not disappoint. In a wide-ranging discussion, she touched upon a number of issues that kept our audience enthralled. One should be of particular interest to everyone reading this today: the importance of good legal writing.

Justice Kagan spoke about her preference for clear, simple language. “Good writing is hard generally and good legal writing is harder than that,” she said, “because a lot of legal concepts are complicated and arcane and not particularly intuitive to an audience.” Figuring out how to convey these complicated ideas in a way that people can understand and that sticks with them, she said, is something that she works on every day.

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Justice Kagan herself is a startling example of how legal writing style is evolving. Her opinions largely avoid legal jargon and even include the occasional pop culture reference. She has also been a vocal advocate for the importance of teaching legal writing in law schools at a time when more and more students underestimate its impact on their future careers.

We have all heard the horror stories: a potential job offer to a new graduate falls through after a writing sample submission, or a legal intern makes a bad grammatical mistake, raising the ire of a judge. More students are coming into law school with an increased dependence on software that suggests changes and autocorrects their work; many of them assume technology will catch all their errors for them.

This is only part of the problem. Students are used to ignoring such errors as inconsequential. Email and texting has changed the way we communicate. There is a temptation to be too informal, too quick to hit “send.” Meanwhile, today’s clients want short communications that are easy to understand—and they want them yesterday.

So how do we adjust to a world that demands less legalese and shorter opinions, perhaps a clever pop culture reference or two—all in record time? The first point to make is that writing briefly and managing the pressure of a fast turnaround time does not mean a license to make mistakes. In fact, this kind of writing demands even more attention to detail. Every word must count. As legal educators, we know this, but today’s students may not understand the depth of research and analysis that should go into a client email. Law schools must teach students that clarity—precision in tone and message—remains essential.

At BC Law, we teach legal writing for the entire first year, and we do it with full-time faculty members. We have recently made the decision to change the name of the course to Law Practice I & II, a reflection of its impact on students’ development. It is a skills-based course, and isn’t just about teaching writing mechanics. “Teaching writing is about teaching law students how to think like a lawyer,” one of our long-time legal writing professors said recently. She’s right. Learning how to write well is about nothing less than learning how to practice. The communications vehicles we teach and the tools we use may evolve, but the core of the program—indeed, of all good lawyering—is the reasoning, research and depth of analysis behind it.

So, the more things change, the more they stay the same? Yes and no. We can work harder to impress upon today’s students the importance of the craft. We can focus more of our time on mastering evolving types of communications vehicles: email, texting, even social media. We can introduce more simulations in our reasoning and writing curriculum, to better prepare students for the pressures they will face in practice. We can also teach more effectively using technology. But the bottom line is that we must continue to teach the kind of in depth and careful analysis that has always been the hallmark of good legal writing.

The best lawyers never stop working to improve their writing. Our goal is to help our graduates master this fundamental professional skill, with the hope that they will continue to hone it throughout their careers. In the same way that we expect the highest ethical standards of our graduates, we also expect that they will never underestimate the importance of good writing in their service to clients and to the profession.

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