Survey Finds NH Legal Writing Skills Inadequate

As legal writing professors at Franklin Pierce Law Center, we hear from frustrated lawyers that legal documents are often difficult to decipher, or that highly qualified new associates lack important writing skills. As a result, we surveyed lawyers about legal writing to identify how law students and practitioners can become better writers.

The results: New Hampshire's lawyers' writing is verbose and unorganized according to nearly 100 bar members who responded to the survey.

In June, we asked nearly 400 New Hampshire lawyers, judges, and judicial clerks to rate legal research and writing skills. We selected lawyers employed in larger firms (35 or more lawyers), knowing that these firms often have more resources dedicated to writing programs, peer review, and research. This survey serves as a starting point for identifying broad issues in legal writing that will allow further, more focused research involving a larger portion of the bar.

Participants were asked whether they observe certain skills always (100% of the time), frequently (75% of the time), occasionally (50% of the time), seldom (25% of the time) or never. They were also asked to give the number of years they had been in practice, the type of practice, and the number of hours spent reading legal writing per week.

The research portion of the survey asked whether lawyers' writing used effective authority, used that authority accurately, had proper citation format, and was complete. The writing portion of the survey asked participants to identify how frequently they observed the following: conciseness, clear organization, easily understood language, proper grammar and format. Participants also rated whether lawyers' writing adequately explained the law, and whether these explanations were adequately applied to the relevant facts. Finally, we surveyed whether advocacy documents were actually persuasive.

Of the lawyers who responded, 81 were private practitioners and eight were judges. The average number of years in practice was 19. While many practice areas were represented, most respondents were litigators. On average the responders logged 12 hours reading other lawyers' legal writing each week. While the survey was designed to take only a few minutes to complete, it also invited broader written comments. The survey results clearly identify that conciseness and organization skills need improvement but that analytical skills are also crucial to higher quality writing.

"Less is more" was the response of most lawyers. Over half of the responders rated lawyers' writing as not concise. Written comments reflected this sentiment with remarks like "inexperienced lawyers tend to be verbose" and "writing is much too wordy."

Surprisingly, wordiness is a bigger prob lem than grammar. Though a few respondents mentioned that grammar and spelling seem to have fallen by the wayside, 48% of those surveyed said that they "frequently" see proper grammar usage, versus only 25% of survey takers who said that writing was "frequently" concise. A 2003 Journal of Legal Education article, reporting results of a multi-state survey on legal writing conducted in 2001, indicated that too much verbiage was a common complaint about new attorneys' writing. The survey also found that clarity and concision were the two most important elements of legal writing.

Poor organization results in poor legal writing. Over half the lawyers surveyed said that writing was disorganized and only 21 % said that writing was frequently organized. This finding came as no surprise to us because of our experience in the classroom.

One of the hardest skills to teach law students is the need to stick to an easy-to-read structure in writing. We see two possible reasons. First, students are more focused on understanding the cases than on how to organize them, and second, there is resistance to structure because students want to be creative and express a personal voice. The survey results suggest that these issues persist in law practice.

Explaining and applying the law was another writing problem noted frequently by survey takers. Forty-five percent said that legal writing adequately explains and applies the law only occasionally and 15% said that legal writing seldom applies the law adequately. Survey responders saw writing that adequately explains the law less than half the time. Again, this finding made sense to us. We notice that, in the age of computer research, students read many cases, but they do not always read them completely. There is a growing tendency to look at snippets of cases, which results in a superficial (and sometimes incorrect) analysis.

Poor writing is more of a problem than poor research. Sixty percent of those surveyed said that writers frequently use effective authorities and 65% said that writers frequently use authorities accurately. Proper citation format was a slightly bigger concern; only 46% said that citation format was frequently proper, and only 37% said that citation was frequently complete.

We were surprised to find that there was little difference between how inexperienced and more experienced lawyers rated the problems in writing. Lack of persuasiveness was the only area senior attorneys (15 years or more) saw as more of a problem than junior attorneys.

Several survey takers mentioned the negative impact that poor writing has on the profession. Some remarked that there is a general deterioration in writing skills and that the quality of legal writing needs "vast improvement."

Some survey takers offered possible explanations for the deterioration. Computer generated spell checking contributes to poor writing and lack of proofreading. Noting that young lawyers generally excel in research but are weak in analysis, one experienced lawyer asked: "Too much TV/ Too many sound bites?" The authors of the 2003 Journal of Legal Education survey listed numerous possible explanations for the lack of good legal writing, including that lawyers do not get enough practice in law school, and that there are deficiencies in early education. Lack of continuing legal education in writing skills, and time and financial constraints were also listed among the possible explanations.

Becoming a better, more efficient writer is attainable. There are tools designed to fix problems of organization and wordiness. However, no matter how concise and organized a document is, it should always be based on a well-reasoned legal premise.

To download the survey, go to http://www.piercelaw.edu/survey/.

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