What is good legal writing?

Michigan Law professor says it is clear, concise, engaging and elegant

By Lori Atherton
Michigan Law School

What is “good legal writing,” and why does it matter? University of Michigan Law School Clinical Assistant Professor Mark K. Osbeck poses this question — and answers it—in a recently published article in the “Drexel Law Review.”

Osbeck was awarded a grant from the Legal Writing Institute to write the article, which focuses on the underlying goals of legal writing, rather than rules or suggestions — “the do’s and don’ts”—to help legal writers improve their writing skills.

“Numerous books and articles offer advice on how to write better or how to teach writing better, but none provides a systematic analysis as to the fundamental goals of writing,” said Osbeck, who teaches in Michigan Law’s Legal Practice Program. “Legal writers require more than just rote memorization of various rules and suggestions if they want to become proficient in their craft.”

A well-written legal document, according to Osbeck, is one that satisfies the needs and interests of the intended audience. Lawyers and judges read legal documents because they need to extract information from these documents that will help them make decisions in the course of their professional duties. Accordingly, the legal reader will regard a document as well written only if the writing facilitates that decision-making.

Clarity, conciseness, and the ability to engage the reader are the essential traits of good legal writing that enable legal decision-making, Osbeck noted. Of these traits, clarity is the most important. “There is a failure in legal writing to be simple,” he said, “and there is a failure to use plain language. As Justice Scalia says, don’t use words that judges have to look up in the dictionary. Clarity and being understood are very important.”

Osbeck also noted a fourth writing trait — elegance — which he describes as the “hallmark of great legal writing.” “The best legal writing is not just writing that is clear, concise, and engaging; rather, what characterizes great legal writing is a separate, aesthetic quality, which I call elegance,” he said. “It’s what makes writing beautiful.”

Osbeck said it’s important for all legal writers, particularly students, to read examples of great legal writing and to analyze their patterns and underlying structures.

“Immerse yourself in good writing so it seeps into the brain,” he said. “It’s like artists studying the masters: It unconsciously affects what you’re doing and helps to influence your writing in a positive way.”