A crucial skill for any advocate is to know the audience. The question of who are you trying to persuade is perhaps the most basic. Yet, many lawyers write a draft before asking themselves this fundamental question, assuming they even ask it all. Unfortunately, this largely results from structural flaws in a lawyer's training both during and after law school.
A common mistake for many lawyers is to raise every conceivable issue they spot in the record. We can thank law school for this habit. There, students are trained to an unnatural degree to issue spot. Come exam time, students secure points on an exam - and in turn earn higher grades - based on the number of issues that the student spotted in a given fact pattern. True, the student must identify the correct rule and analyze the issue to a reasonable conclusion. But, as my Property professor candidly told my section, "we professors simply speed reading through your exams and are merely looking to check off a list of issues; therefore, you should spot as many issues as you can and worry later about whether you applied the correct rule." No wonder so many attorneys equate "spaghetti on the wall briefs" as the epitome of quality analysis.
The training hardly improves after graduation. At a small law firm, where the vast majority of newly minted lawyers start their careers, the managing partner on a case is usually dealing with the pressures of satisfying client demands and developing new business - not to mention tending to a host of other administrative tasks - all while managing an independent caseload. Faced with these challenges, the partner will predictably lack the time necessary to mentor the young lawyer, who, in this environment may practice for a number of years before receiving substantive advice on what constitutes effective, let alone superior, advocacy.
For my part, I have been very fortunate to receive feedback on my writing from a number of mentors. I'll never forget when a senior attorney read my long-winded argument, and asked rhetorically, "have you seen the caseload these judges carry? Do you even know how many recommendation memos the court attorneys write - and the judges read - in a single week?" At his advice, I read as many of his briefs as I could. To this day, I don't think there is anyone better at communicating complex issues in clear, direct prose. And, because of his guidance, I routinely imagine an overworked law clerk surrounded by multiple stacks of records and briefs whenever I sit down to write a draft. Clearly, I have internalized the lessons from my mentors, but my experience is vastly different from that of my peers, many of whom are left to figure out for themselves how to best develop their writing skills. That I am the exception and not the rule is an indictment on the current model, which foists the burden of training on a class of employers entirely unsuited to the task.
The good news is that a few prominent law schools such as Northwestern and NYU have begun experimenting with the curriculum in a response to the challenging (or to put it more accurately and bluntly, putrid) job market. This new curriculum should include some sort of required intensive writing program in a clinical setting so the young associate is "brief ready" upon graduation. The current model, wherein even the high achieving students are rewarded with exposure to some of the most turgid, muddled writing the legal world has to offer, under prepares young lawyers for the challenges they will face in serving clients through written advocacy. Here's to hoping that the academy will respond to the demand for better legal writing.