Scalia's death highlights importance of persuasive, accessible legal writing

Scott Fraley and Matt Cordon
The Daily Record Newswire

Legal scholars and political pundits who debate the legacy of recently deceased Supreme Court Justice Antonin Scalia say much of his historical significance is found in his prolific writings and judicial opinions.

Baylor Law School's Matthew Cordon, J.D., professor and director of the school's Legal Writing Center, and Scott Fraley, J.D., professor and director of legal writing, agree that the power of Scalia's writing stems from his abilities to make his words accessible to readers, including the public. They say the next generation of lawyers can learn a thing or two from talented legal writers like Scalia because most of today's legal decisions are made based on the written word instead of oral arguments.

"In most professions, readers have neither the time nor the interest to dissect complex prose that is supposed to convey a message," Cordon said. "The more skilled writer will instead explain complex and sophisticated topics using a style that makes the reader's job more effortless."

"We all can learn Scalia's lessons of clarity, brevity and invention," Fraley added. "He wrote for the man on the street, in language almost anyone could understand, even when making the most sophisticated legal points. He was a master of the use of metaphor, frequently either inventing his own metaphors or taking old ones and turning them on their heads. He loved to invent new words and phrases."

In the following Q&A, Fraley and Cordon discuss the importance and power of persuasive and informative writing in today's legal process.

Q: How important is the written word to our legal system and to U.S. history?

Fraley: The written word is simply crucial to our way of life. Our laws are based on language, its application and its interpretation. Our history is a written one, from the Founders' documents through the Constitution and legal opinions and precedent. The written word is why we have a society of laws, not of man.

Cordon: Its importance is increasing. In litigation, fewer cases today wind up going to trial compared with the past, and courts resolve an increasingly higher percentage of cases based solely on the parties' writings rather than on oral arguments.

Q: Legal writing is often characterized as "dense," "dry" and "inaccessible" to the common reader. What are law schools like Baylor doing to change that?

Fraley: I teach law students to write in plain English when appropriate and to avoid "legalese" where possible. "Legalese" is arcane language that has an everyday English equivalent. We want our students, like Scalia, to strive for clarity, brevity and accessibility.

Cordon: Any lawyer must be sensitive to "legal terms of art" terms that have independent legal meanings. We otherwise want to avoid words such as "heretofore" and "hereinafter" (among many other examples), as well as unnecessarily long, complicated and complex sentences. We want students to write shorter sentences that emphasize, when possible, actors and actions. The result is that any reader can follow the reasoning supplied by the writing.

Q: How much of a lawyer's time is spent writing?

Fraley: Most lawyers spend far more time writing and drafting than arguing in court. This fact is especially true of young attorneys, whose seniors frequently judge them by their written work product. A small percentage of lawsuits proceed to trial, and a relatively small number of appeals reach oral argument. Transactional work involves careful crafting of documents. The practice of law is thus increasingly dependent on the written word.

Cordon: The percentage of time spent writing is greater than a layperson or even a typical beginning law student would expect. Many different factors lead students to enroll in law school, but the need for another writing outlet is usually not one of those factors. Many of these students will, nevertheless, develop their professional reputations largely based on their writing proficiencies.

Q: What are some tips you often share with writers?

Fraley: We advise writers to avoid passive voice; employ active, powerful verbs as opposed to "be" verbs; be mindful of grammar and punctuation; write in plain English; and keep subject and verb close together. Basic tips like these will help improve any writer's work product.

Cordon: Write so that the document serves its purpose, whether that purpose is to inform, to persuade or otherwise. The goal is never to demonstrate how smart the writer is. If the writer can use a style that makes the writing accessible to the busiest of readers, the writer will effectively demonstrate intelligence, and the reader will appreciate the effort.

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Scott Fraley is an honors graduate of the Plan II program at the University of Texas at Austin. He has a J.D. from the University of Texas School of Law, where he served on the law review. Fraley has an M.A. in rhetoric and writing from the University of Texas at Dallas, where he is currently working on his Ph.D. He is Baylor Law School's director of legal writing. Matt Cordon, J.D., is a professor of law and serves as director of Baylor Law School's Legal Writing Center, where he teaches courses in legal analysis, research, and communications and advanced legal research. He is the co-author of three books and the author of numerous articles, book chapters and essays. He previously received a national award for Outstanding Article by the American Association of Law Libraries, and he was designated as Outstanding Professor for Scholarship by Baylor University.

Published: Mon, Feb 29, 2016

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