Friday, May 29, 2020


Bryan Garner
Law schools teach three bad habits—ones that are particularly deleterious to pretrial and trial advocates. These three dreadfully bad habits can be broken,  and the means to breaking them are covered here and, in more depth, in Trial Advocacy: Planning, Analysis, and Strategy and Pretrial Advocacy: Planning, Analysis, and Strategy.

I’ve previously discussed this awful habit of being a lousy communicator. Nevertheless, in this series, the subject is worth revisiting. Law schools should produce professional communicators, but quite to the contrary they graduate lawyers who are poor communicators. Some are so bad they can and often do put a jury to sleep. Law schools should focus on producing professional communicators – lawyers who are effective writers and speakers. However, Bryan A. Garner’s in his column for ABA Journal entitled, “Why Lawyers Can’t Write” subtitled: “Science has something to do with it, and law schools are partly to blame” states:

“While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality, and they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments.” ABA Journal (March 2013, p. 24).

Jim McElhaney
Jim McElhaney, advocacy instructor, ABA Journal contributor for 25 years, and also like Garner an ABA columnist, put it this way:

“Law school is as much obscure vocabulary training as it is legal reasoning. At its best, it can teach close thought and precise expression. But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity.
“So we lard our speech and writing with words and phrases of awkward obscurity and rarely have anything to do with legal precision but that unmistakably say, ‘This was written – or said – by a lawyer.’

“Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.

“And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to be effective communicators.” ABA Journal (September 2012).

Correcting this habit isn’t easy. It requires a good legal writing program, such as Seattle University Law School’s currently ranked number three in the country, that can teach students how to write clearly and effectively. Further, professors should do what Garner suggests and give students feedback on the substance and style of their submissions.

Coming soon: Law School Bad Habits 2 and 3.

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