To help law firms hire neophyte attorneys that can write
By Dr. John F. Sase
with Gerad J. Senick
“Legal research and legal writing are fundamental skills necessary to the practice of law. Thus, it should come as no surprise that an attorney’s failure to perform adequate legal research and write well can violate the attorney’s professional responsibility. A demonstrated lack of competent legal research and legal writing performance is injurious to an attorney’s reputation. Failure to adequately research or write well, or both, is a violation of ethics rules and can result in a reprimand, suspension, or disbarment from the practice of law; a client may decide that it is the basis of a legal malpractice lawsuit.”
–Carol M. Bast and Susan W. Harrell, “Performing Adequate Legal Research and Legal Writing,” Nova Law Review, Fall 2004
When I (Dr. Sase) inform attorneys with whom I work that I also teach at the university, they often ask me why so many of the law school graduates that they hire cannot even write an intelligible legal brief, case summary, or any other fundamental document of the profession. Therefore, we decided to research and address this chronic problem that tries the patience of senior partners and offer some counsel from a related academic field, that of Economics.
In his article “The Importance of Being Earnest: A Serious Proposal to Modify Legal Research and Writing Departments” (Student Lawyer, February 2008), Allen Mendenhall questions why Legal Research and Writing (LRW) programs have been slow to cross-hire professors from the field of English to teach these courses. While the stock answer at many law schools has been that non-attorneys remain untrained and unequipped to teach professional research and writing to law students, their LRW programs often continue to settle for hiring lawyers who cannot write as course instructors.
With the possible exception of English departments on campuses, the same problem grates within other fields of academia as well. In Economics it is wonderful to find both undergraduate and graduate students who can create mathematical models and crunch the numbers without mercy. However, the problem that has plagued us chronically has been the inability of students to put nouns, verbs, and other parts of speech together in such a way that effectively communicates their valuable findings to anyone beyond an erudite sect entrenched in obtuse Economese.
In my Economics courses, I continue to recommend a short but amazing sixty-three page text entitled “The Writing of Economics” by Deirdre (formerly Donald before his little operation) McCloskey (Macmillan Publishing, 1987). Though directed toward economists, McCloskey’s tome can help anyone learn to write so that professors and the rest of the world will understand what they mean. My own favorite lesson from McCloskey has remained the use of eloquent variation.
Advice closer to home for law students and attorneys comes from Richard C. Wydick. In his book “Plain English for Lawyers” (Carolina Academic Press, 5th ed., 2005), Wydick laments how attorneys continue to use arcane phrases and four times as many words as necessary to express commonplace ideas. He exclaims, “We lawyers do not write plain English.” For producing a work that has benefitted students, teachers, lawyers, and judges for more than twenty-five years through five editions, the Legal Writing Institute gave Wydick its Golden Pen Award in 2005 for having written “Plain English for Lawyers.”
In my own teaching of upper-level classes, I have turned to using synthesis essay exams. Not only do I find that this approach helps students to more easily assimilate disparate material from books, videos, lectures, and other sources, but the synthesis papers provide me with a window to see whether or not students can truly comprehend and communicate what they have learned. As this synthesis approach parallels the writing of case summaries and similar documents used in the practice of law, we would like to share our following set of techniques, methodologies, and practicum with attorneys who seek remediation as well as to encourage further professional development within their own staffs. It may behoove firms in respect to continuous quality improvement to provide the following material to their employees if they seek to improve the clarity and quality of all work at their firms. In addition, the following material may prove beneficial if incorporated into the context of an exercise to share with prospective hires in order to further access their professional abilities.
The Right to Write Right
General Parameters for Each Type of Document
For consistency of product, it is good to specify in writing the parameters for each type of document. These may include: 1) The number of pages of text, 2) The margins around, 3) The preferred font face and size, 4) Format of the cover sheet including name of the document, firm, case, specific attorneys, and other pertinent items of identification that lend themselves to ease of filing, 5) The structure of any separate reference, bibliography, index, and other sheets that may appear at the end of the document and that include all pertinent material used in the synthesis type of document, 6) Placement and style of any diagrams, tables, graphs, illustrations, equations or similar material and whether or not it should appear within the text or in a separate appendix, 7) Style and placement of footnotes or endnotes, 8) The naming, numbering, and formatting of separate major sections and their headings, 9) The spacing that should be used within each paragraph of text as well as any requirements for an additional spacing between paragraphs and the major sections of the document, 10) Any consistent requirements necessary for optimal copying and binding of the finished document.
Exempli Gratia
The following section contains a simplified example of the structure of a professional synthesis document. Of course, the actual structure and content will vary by purpose and intended use of the document.
Introduction
The Introduction may be as short as one paragraph. However, the key element of this first section should be a one-sentence statement that sums up the focus of the entire synthesis document.
Furthermore, as this section introduces the texts and other materials to be synthesized, it may be appropriate to give the title of each source following the citation guidelines of whatever style sheet the firm chooses to use. Also, it is beneficial to provide: 1) The name of each author and 2) Pertinent background information about the authors of the texts summarized or about the general topic from which the texts are drawn.
Development (The Body of the Synthesis)
The Development section should be organized by theme, point, similarity, or other important aspect of the topic or the case at hand. This organization should be determined by the nature and content of the assigned material and/or by the patterns that the compiler perceives within the material being synthesized. Organization is the most important part of any synthesis document. Therefore, an attorney or firm may find it beneficial to experiment with this element before settling on one standard format.
In general, the writer preparing the synthesis should be certain that each paragraph: 1) Begins with a sentence or phrase that informs readers of the topic within the paragraph, 2) Includes information from more than one source, 3) Clearly indicates which material comes from which sources by using lead-in phrases as well as in-text citations, 4) Shows the similarities or differences between the different sources in ways that makes the document as informative as possible, 5) Represents the sources fairly—even if it may seem to weaken the document—as the writer should consider his/her self as an impartial synthesizing machine.
The synthesis writer should simply repeat what the source says, but in fewer words of one’s own. However, to the extent that the writer uses his/her own words does not mean that s/he should change what the source says.
Summary/Conclusion
When the synthesizer has finished the document, s/he should write a conclusion that reminds readers about the most significant themes found and the ways that they connect to the overarching topic. It may also be appropriate to suggest areas of further research or to comment on topics that were not possible to address in the current document.
Review, Editing and Proofreading
Though we expect authors to write their own original documents, all writers at a firm should be encouraged to work together as a team in respect to peer review, editing, and proofreading. This approach represents good professional practice for everyone involved.
Review
The information provided in a review will help the other writer check that his/her paper does what s/he intended. For example, it may not necessarily be wrong for a specific type of document to include the writer’s opinions. In some instances these opinions are essential. However, the reader must be able to identify which opinions originated with the writer of the synthesis document and which ones came from the underlying sources.
In performing a review, one should read a peer’s synthesis document and then answer the following questions: 1) What do you like best about your peer’s synthesis? Why? How might s/he do more of it? 2) Is it clear to the reader as to what is being synthesized? In other words, did one’s peer list the sources and cite them correctly? 3) Is it always clear to which source the peer refers at any given moment? (Mark any places where they are not clear), 4) Is the thesis of each original text stated clearly in the synthesis? (A reviewer can write his/her own interpretation of each thesis), 5) To the extent that you have read/viewed/heard the same sources, did you identify the same theses as your peer? (If not, how do they differ?) 6) Did your peer miss any key points in his/her synthesis? (If so, what are they?) 7) Did your peer include any of his/her own opinions in the synthesis? (If so, what are they?) 8) Were there any points in the synthesis at which you became lost because of a missing transition or omitted material? (If so, where and how might it be fixed?) 9) What is the organizational structure of the synthesis essay? (Here, it might help to draw a plan/diagram/outline), 10) Does this structure work? (If not, how might your peer revise it?) 11) How is each paragraph structured? (Again, it might help to draw a plan/diagram/outline), 12) Is this method effective? (If not, how should your peer revise it?) 13) Were there mechanical, grammatical, or spelling errors that annoyed you as you read the paper? (If so, how could the author fix it? Did you notice this error occurring more than once? Note: Do not comment on every typographical or other error you see. It is a waste of time to perform this depth of editing before a paper is revised for general structure and content.) 14) What other advice do you have for the writer of this paper?
Making the Sausage
The following sketch represents the ten-step process that Gerard Senick and I have used for writing this monthly column for the Legal News throughout the past twelve years: 1) During the weeks preceding the due date, I (Dr. Sase) rough out ideas as they come to mind using sticky notes, napkins, a spiral notebook, or any other available media when the idea presents itself. 2) I gather my material and organize (outline) it into the appropriate structural framework, 3) In one sitting, I write the entire first draft, as I avoid getting bogged down with grammar, spelling, etc. (Tip: Ernest Hemingway used to say that he always wrote drunk and then edited sober.) 4) If at all possible, I leave the finished draft alone until the following day, 5) Then, I write a second draft over a copy of the first from beginning to end. During this rewrite, I pause to fix grammatical, spelling, and other errors as well complete my reference citations that include author, publication, publisher, and date, 6) I ask my spouse (who majored in English) or another set of eyes to review the work and comment per the questions listed above, 7) After reviewing these peer comments and corrections, I make the necessary changes, 8) Then I bring in Mr. Senick as my professional editor to negotiate any overall structural reorganization, rewrite or add text, and clean up any remaining line edits, 9) Together, Gary Senick and I read the semi-final version aloud to one another. What may not appear menacing during a silent reading often makes us grimace when we hear it spoken aloud, 10) In the company of Gary, I key in corrections as necessary before sending the document to our editor at the Legal News for publication.
In Conclusion
Generally, attorneys, economists, and other professionals do not write merely for the edification of their professional peers. For example, the great nineteenth century British Economist John Stuart Mill published some of his most noted and influential works, such as his debates with Thomas Carlyle over the topic of the proposed re-institution of the British slave trade, in Fraser’s Magazine for Town and Country, the general and literary journal in 1850.
Amidst the barrage of information that perfuses through the mega-encompassing “medianet” of today, all professionals need to be able to write in plain language in order to communicate to the wide and varied readership that they need to reach. We hope that the suggestions offered above for macro-managing the documents produced by one’s firm will prove to be helpful to all who read this current column.
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Dr. John F. Sase of SASE Associates, Economic Consulting and Research, earned his MBA at the University of Detroit and his Ph.D. in Economics at Wayne State University. He is a graduated of the University of Detroit Jesuit High School. Dr. Sase can be reached at (248) 569-5228 and by e-mail at drjohn@saseassociates.com.
Gerard J. Senick is a freelance writer, editor, and musician. He earned his degree in English at the University of Detroit and was a Supervisory Editor at Gale Research Company (now Cengage) for more than 20 years. Currently, he edits books for publication and gives seminars on writing. Mr. Senick can be reached at (313) 342-4048 and by e-mail at gary@senick-editing.com.
