Wanted: A way to reverse problem with lawyers’ writing

As if bar candidates cramming legal knowledge didn’t have enough to worry about with the looming Virginia bar examination, word is out that bar examiners have been casting a critical eye on candidates’ writing ability.

The Virginia Board of Bar Examiners is just one group of legal professionals complaining about lawyers’ writing skills, or lack thereof.

People who have to read and respond to legal writing on a daily basis – lawyers and judges – are having some problems, and they have put out a call for comments on how to make lawyers better writers. A Virginia State Bar task force is asking lawyers and law firms to help evaluate the state of legal writing.

The VBBE has noticed the discouraging trend, reported board member Anita O. Poston of Norfolk.

“We think that the writing of the applicants over time has significantly deteriorated,” Poston said at the 20th Anniversary Conclave on the Education of Lawyers last year in Charlottesville.

Transcribed comments from the proceedings are posted on the VSB website.

“We do expect complete sentences. We do expect new lawyers to be able to spell fairly well. And you would expect them to be able to craft an essay in a coherent manner. And, frankly, we are really not seeing a lot of that these days,” Poston said.

The VSB panel, under the auspices of the Section on the Education of Virginia Lawyers, also will query law schools and other sources in search of remedies.

The quest for a more proficient and coherent bar grew out of the 2012 convlave.

There is “a failure somewhere in the education process with regard to the written word,” said conclave vice-chair William R. Rakes of Roanoke as he opened the April 2012 meeting, reflecting on two decades of criticism about the education of lawyers.

The decline in writing skills is not limited to law students, nor amenable to easy explanation, many speakers agreed.

“For a lot of complicated reasons, I think the educational system in America from start to finish is doing a less effective job in teaching writing than it did a generation ago,” said William & Mary law school Dean Davison M. Douglas. “And law schools, I think, are going to have to fill the breach to some extent on that,” he added.

The job is not a simple one, said Washington & Lee law school Prof. James E. Moliterno, who observed that teaching writing is very labor intensive.

Judges also expressed disappointment with the quality of some of the briefs submitted by practicing lawyers.

On the adjunct faculty at the University of Virginia law school, U.S. Magistrate Judge B. Waugh Crigler sees the writing of both law students and practicing lawyers.

He found writing quality “woefully lacking” among law students and college graduates generally.

“[T]he truth is I am seeing that most students pull up a dump truck of words and hope that there are a few catch phrases in there that will capture the attention of the grading agent,” Crigler said at the conclave.

Crigler said he thought the problem was a lack of training of students coming into law schools, and he said he was encouraged to hear law schools were trying to do something about it.

Just five weeks after the 2012 conclave, a Virginia Court of Appeals panel used several leading paragraphs in a 13-page opinion to chastise a litigant for a “poorly crafted brief” the court compared to a “slubby mass of words” (See VLW 012-7-162).

In response to the conclave comments, the 26-member VSB education panel – chaired by W&L law Prof. A. Benjamin Spencer – named a task force to study the state of legal writing education and ability in Virginia and to develop recommendations for improving the writing ability of both new and experienced practitioners.

The task force is looking at five issues, said the group’s chair, Virginia Supreme Court Senior Justice Elizabeth B. Lacy, including how law schools are teaching writing, what law firms are doing internally to boost skills, what continuing legal education programs focus on writing, the extent to which the Virginia bar exam requires writing skills, and what the judiciary is doing to improve lawyers’ writing performance.

The task force plans to present its data to the education section and make recommendations as to what the organized bar might do to help lawyers write better, Lacy said.

“Older lawyers think law schools are doing nothing. That is not the case,” she said. Lacy recalled that her generation’s law school experience did not include much emphasis on writing.

“That has changed in the past 30 years, thank goodness,” she said.

Most law firms have not been quick to respond to inquiries about training attorneys to write, according to Lacy.

“We’re still working on trying to get a better sense of what the status might be on internal efforts to foster better writing,” she said. “It’s time consuming, and law firms don’t have that kind of time, unfortunately,” she added.

Pride also could be a factor, Lacy suggested. “It’s hard for them to say the lawyers they hired for $160,000 a year are not good writers,” she said.

There are few seminar offerings from CLE providers, Lacy said, noting how labor intensive it is for instructors to read over individual assigned work and explain how it can be improved.

Nevertheless, judges occasionally have to confront the issue. Some judges have been known to send back an indecipherable brief and demand a better effort, Lacy said.  It stings when appellate judges use footnotes, or even substantial portions of an opinion, to call out a lawyer’s poor style, she said.

“No lawyer likes to get an opinion like that,” she said.

Despite the difficulty of training, the importance of written communication for lawyers cannot be overemphasized, Lacy said.

“The written word – whether it’s a contract, or a lease, or a buy-sell agreement – it is the bedrock of what makes our world go around,” she said.

The Task Force Questionnaire

The Virginia State Bar better-writing task force is asking Virginia lawyers to respond to the following questions:

• Is it your experience that lawyers entering practice today write sufficiently well, focusing on grammar, clarity and persuasiveness?
• If you think that Virginia lawyers have problems with their writing, do you think the problem is growing worse and, if so, why?
• What training in legal writing do you provide for lawyers in your practice, if any?
• Do you or your firm consider writing skills in your hiring decisions?
• If you are a solo practitioner, what do you do to develop adequate writing skills?
• If you believe that your own or writing skills of others are currently inadequate what would your recommend the Bar do to provide effective assistance?
• Would you attend, or support attendance by your firm’s lawyers, at a CLE program directed at legal writing?

The task force asks that replies be sent to either: John H. Foote, [email protected] or Thomas E. Spahn, [email protected].