Writers make mistakes. It’s what we do. The best writers are the ones who can catch the most of those mistakes before releasing their writing into the world.
When we’re talking about legal writing, these mistakes can be “big,” that is, mistakes of content, argumentation, and authority. Or they can be “small,” that is, grammar and typos, citation style, formatting, and the like.
One can argue—well—that these distinctions between “big” and “small” mistakes are not as distinctive as we think they are. After all, if you turn in a well-argued brief that is rife with grammar errors, a judge will have a hard time taking your arguments seriously—indeed, the judge might have a hard time understanding your arguments at all. And you might support your arguments with the best of legal authority, but if you can’t coherently deploy citation style, then no one will be able to tell what that authority is.
As this is our first post of the new year, and our first post of the new semester for those reading this from law schools (whether as students or teachers), we hereby provide you a list of short and easy-to-read articles that will help you make fewer mistakes in your legal writing. Via checklists and Van Halen, you can present more professional documents. Read on.
(1) Joe Fore, UVA Law: “Encourage Students to Eliminate the
Brown M&Ms from Their Legal Writing.” Perspectives: Teaching Legal Research and Writing, Fall 2016. [Available Here.] From Fore:
Over the past three decades, the story of how Van Halen banned brown M&Ms has gone from backstage to boardroom. For legal writing instructors, this same tale provides a convenient metaphor for students about the importance of watching the smallest details in their writing. Let’s see how David Lee Roth can help teach our students about why it’s crucial to sweat the small stuff.
(2) Kaci Bishop & Katie Rose Guest Pryal (hey, that’s me): “Cut Clutter with ‘Checklist-Find’: Using Technology to Teach Effective, Efficient Revision.” (2015) [SSRN.] Here’s an excerpt from the abstract:
Writing legal documents with plain English is difficult, and the “checklist-find” revision strategy enables legal writers to identify and revise common plain English and grammar weaknesses in their legal documents by using their word processors’ “find” functions to locate clutter words on a predesigned, personalized checklist. The checklist-find technique is simple—you do not have to be a grammarian or a techno-wizard to use this technique or to teach others to use it—and it uses tools that students already have at their disposal.
(3) Jennifer Romig, “The Legal Writer’s Checklist Manifesto.” Legal Communication & Rhetoric: JALWD, (2011). [SSRN.] When writing our piece, Professor Bishop and I deeply relied on Professor Romig’s 2011 book review of Atul Gawande’s The Checklist Manifesto. Romig’s piece is really an essay on how to best use checklists in legal writing, so we have to include it here. From the abstract:
This book review focuses on checklists’ potential benefits for lawyers—and more specifically, for lawyers engaged in the task of legal writing. Widely available checklists provide excellent tools for new lawyers to check their work and internalize common stylistic practices of legal writing. These same checklists can also help experienced lawyers to edit their work efficiently and to notice and change bad writing habits they may have acquired. Yet the benefits of checklists extend beyond the individual writer laboring to complete an assignment. The Checklist Manifesto also explains the benefits of process-based checklists, which require members of a team simply to check in with one another at specified intervals. These process-based checklists could help teams of lawyers to work together more efficiently and produce more effective written work product.
We can accept that imperfection is a part of all writing, including legal writing. At the same time, we can hold perfection up as a goal for our legal documents—and perhaps we should, aiming for the moon, landing among the stars and all that. We hope these pieces can help you along your stellar trajectory.