Helping Trial Lawyers Navigate the Appellate System

What a Legal-Writing Professor Wishes He’d Known as a New Lawyer

[vc_row type=”in_container” full_screen_row_position=”middle” column_margin=”default” scene_position=”center” text_color=”dark” text_align=”left” overlay_strength=”0.3″ shape_divider_position=”bottom” bg_image_animation=”none”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ column_link_target=”_self” column_shadow=”none” column_border_radius=”none” width=”1/1″ tablet_width_inherit=”default” tablet_text_alignment=”default” phone_text_alignment=”default” overlay_strength=”0.3″ column_border_width=”none” column_border_style=”solid” bg_image_animation=”none”][vc_column_text]In this month’s Austin Lawyer, UT Law Professor Wayne Schiess published a short piece pointing out four things he wishes he’d known about legal writing when he finished law school. I was struck by his first three points.

Law Is a Writing Profession

Professor Schiess posits that lawyers are professional writers rather than orators—something he didn’t fully appreciate as a new law graduate. There’s little room for disagreement on this point today. The number of cases going to trial has generally decreased, and more are being decided on motions to dismiss or motions for summary judgment. While oratory skills are important, a lawyer’s written work product plays an even more vital role in just about every legal dispute.

Becoming a Good Legal Writer Takes Years

Schiess references a theory—stated in Malcolm Gladwell’s Outliers—that one must put in 10,000 hours to become an expert at something. In his view, simply writing more won’t make you an expert. You must study the craft, learn, and then implement what you’ve learned. And even then, assuming you invest 1,000 hours per year, it would still take 10 years to develop true expertise. As Schiess says, that’s a long time.

Who can study the craft of legal writing in the midst of a high-pressure law practice? Anyone who wants to become an expert at it will find a way. You must put in the time and effort to have any hope of achieving the desired result.

Time Pressure Impedes Good Legal Writing

Schiess further wishes he had known about how the realities of law practice cram down the time available to make legal writing good. He uses editing as an example:

Editing is what makes weak writing good and good writing great. But in a busy law practice, careful editing is often sacrificed.

Even the best legal writer needs adequate time to edit before turning out a great work product. When I was a young big-firm lawyer, my mentors advised me to try and set my draft aside and come back to it with a fresh set of eyes, especially when I was working on a complex appellate brief. That’s still good advice today, but the daily grind makes it difficult to implement. Modern word-processing tools help avoid the dreaded spelling error or typo, but they’re not infallible, and they won’t fill gaps in logic or add a missing point.

What do you wish you had known about legal writing as a new lawyer?[/vc_column_text][/vc_column][/vc_row]

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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