Is Good Legal Writing Inherited or

Developed?
By Matthew Salzwedel on June 27th, 201212 comments
Are good legal writers born with writing ability, or does a lawyer become a
good legal writer through mentoring, dedication to the craft, and hard work?
This question isn’t new; many people have published their views on it, at
least with respect to writing ability in general.

Jack Kerouac thought the question was important enough to publish

a newspaper article on whether writing ability is inherited (he concluded that
good writers are made, but genius writers are born).

In tackling the question whether good legal writers are born or developed,
below I compare the expanded views of two authors on opposite ends of the
writing spectrum—Bryan Garner (legal writing and usage) and Stephen
King (fiction)—to discover their thoughts on this nature-versus-nurture
controversy. I’ll then add my own take on the question, which is that most
(but certainly not all) lawyers can develop good legal writing, but that they
need to dedicate themselves to the task.

“[D]on’t ever believe that writers are born (not made). It isn’t true …”

Let’s start with Bryan Garner’s views on good legal writing. In a 2002 article
in the Student Lawyer, which he later adapted for a chapter in Garner on
Language and Writing, Garner stressed the importance of teaching good legal
writing in law school. He says that if you think you’re a good writer when
you start law school—because, for example, you studied English or
journalism as an undergraduate—you’re deluding yourself. He cites Gorham
Munson’s claim in The Written Word (1962) that “professional writers,
discounting even marked talent, say that nobody can be called a writer until
he has written a million words, the equivalent of ten good-sized books.” As to
whether good writers are born or developed, Garner says that good writers
are not born with the innate ability to write:

[D]on’t ever believe that writers are born (not made). It isn’t true, any more
than the idea that golfers or violinists or cooks are born. The fact is that even
those with talent—Tiger Woods or Itzhak Perlman or Martha Stewart—have
worked extraordinarily hard to develop their technique. It’s no different for
writers.

Stephen King approaches the question with more nuance. In On Writing: A
Memoir of the Craft, King says that “[w]riters form themselves into the
pyramid we see in all areas of human talent and human creativity.” At the
bottom of the pyramid are the bad writers; above the bad writers are the
competent writers; above the competent writers are the “really good writers”;
finally, at the top of the pyramid, are the great writers:

the Shakespeares, the Faulkners, the Yeatses, Shaws, and Eudora Weltys.
They are geniuses, divine accidents, gifted in a way which is beyond our
ability to understand, let alone attain. . . . [M]ost geniuses aren’t able to
understand themselves, and many of them lead miserable lives, realizing (at
least on some level) that they are nothing but fortunate freaks, the intellectual
version of runway models who just happen to be born with the right
cheekbones . . . .

King claims that it’s impossible to make a competent writer out of a bad
writer, and that it’s equally impossible to make a great writer out of a good
writer. But he also believes that “it is possible, with lots of hard work,
dedication, and timely help, to make a good writer out of a merely competent
one.” If you want to be a good writer, says King, you need to do three things:
read a lot and write a lot, then read a lot and write a lot, and then do it over
and over again. King also maintains that becoming a good writer isn’t easy:
“[I]f you don’t want to work [hard], you have no business trying to write well
—settle back into competency and be grateful you have even that much to
fall back on.”

I agree more with King than with Garner on whether good writing is an
innate trait (though I stake this claim with some trepidation, as Garner has
been known to visit this website). Based on my experience, as well as the
anecdotes of others I know in the legal profession, there are lawyers who
simply are innately talented legal writers. Ryan Scott, a law professor at
Indiana University and former law clerk for the Tenth Circuit, is one
example. As a first-year-law clerk at my former firm, his written work was
far better than any writing I’d reviewed from other first-year-law-student
clerks. Scott was gifted with an innate ability to write, and it was obvious to
everyone who worked with him.

But like King’s assessment, I’ve also heard anecdotes about lawyers who, no
matter how much a firm works with them to improve their legal writing,
never seem to grasp even elementary concepts of good legal writing. So, for
example, even if a superior repeatedly points out to the person that he
should ditch the here-and-there words and other forms of legalese (as The
Lawyerist’s Andy Mergendahl has advised here), or that nominalizations and
buried verbs should be reworked into active voice, or that Enclosed please
find (PDF) is silly and should be stricken from all correspondence, a month
or two later the superior will see these legal-writing foibles in a letter,
memorandum, or, worse, a brief filed with a court.

But I also agree with both King and Garner that there are “serviceable” and
competent writers (I define “serviceable” writers as writers who are one level
above bad writers and one level below competent writers. Unlike bad writers,
their work doesn’t need to be completely re-done) who, with close mentoring,
unwavering dedication, and tenacious hard work, can become good legal
writers.

How do serviceable or competent writers make the transition to being good

legal writers?

It’s simple: By actually caring about improving their writing.

Emerging good legal writers show that they actually care about becoming
good writers by:

 Getting legal dictionaries and usage and grammar books and actually

referring to them when they need to resolve a thorny language, usage,
or grammar question;
 Accepting constructive criticism of their work and internalizing the
concepts raised by that criticism. In other words, once emerging good
writers learn a legal-writing concept or rule from others’ criticism,
rarely will you find the same error in future work.
  Not filing briefs, submitting memoranda to a superior, or sending
letters to a client or opposing counsel containing obvious typographical
and grammatical errors that could have been caught on one final close
review;
 Abhorring the recent phenomena of “making sausage,” even under
incredible time constraints, and making sure that they have budgeted
sufficient time to thoroughly revise their work before submitting it to a
superior or a court;
 Being excited about attending legal-writing CLEs like
Garner’s Advanced Legal & Writing & Editing seminar, and
welcoming the opportunity to learn new or refresh old legal-writing
concepts at those seminars;
 Having the confidence and assertiveness to explain respectfully the
correct grammar or usage rule when a superior wants to lacerate their
prose (Example: a superior deleting the hyphens in phrasal adjectives
like breach-of-fiduciary-duty claim or common-benefit doctrine); and
 Taking every opportunity to improve their legal writing by constantly
seeking new writing projects, even those outisde their day jobs. Indeed,
in The Careful Writer, Theodore Bernstein correctly observed that
“[w]riting is one art form that can be practiced almost anywhere at any
time.” And echoing Gorham Munson’s view above, Ray Bradbury
apparently once said, “Anyone who wants to be a writer should write at
least 1,000 words a day.” Not many lawyers can come close to
Munson’s and Bradbury’s long- and short-term writing goals without
actively seeking outside writing projects.

So I don’t agree with Bryan Garner that any lawyer can become a good legal
writer, a competent one, or, perhaps, even a serviceable one. There will be
bad writers who cannot be saved from themselves no matter how hard they or
their colleagues try. I also agree with Stephen King that great writers are in
an untouchable class of their own. But I agree with both of them that if a
lawyer is a serviceable or competent writer, there may be some hope for him
to become a good legal writer if he steadfastly dedicates himself to becoming
one.