Is Legal Writing Getting Worse?

For as long as I can remember, people have talked about how bad legal writing is.  People are now saying that it's getting worse.  (More.)  But when was it ever good?

Every law student is forced to read old judicial opinions.  Those are terrible cases to read.  Recently I had to read some cases from 1950.  Awful stuff.  The facts weren't clearly stated.  The issues weren't clearly stated.  Older cases are generally unclear.  They are poorly written.

Good writing is clear writing.  Take an opinion from 1950.  Then take an opinion dealing with a similar issue - but from 2005.  Which one would take you longer to wade through?  With few exceptions, the modern opinion would be much easier to read and understand. 

Some might say judges are becoming better writers.  But it's an open secret that law clerks write large parts of most opinions.  It's thus the recent graduates who are elevating the discussion.

Those law clerks (at least at the federal level) tend to come from Ivy-league schools.  Most modern federal opinions are pretty clear.  They often miss issues that a specialist would see; but the writing is usually pretty good.  Somewhere, then, law students are learning how to write.

Judging based on judicial opinions, legal writing has improved.  Has written legal advocacy improved?

Are other lawyers writing better or worse than their predecessors?  I've read a few old briefs, and plenty of new ones.  With both sets, I've see some really bad ones.  Most are mediocre.  Some are good.  A few are excellent.

And why should we expect the distribution to be otherwise?

How many fiction writers are there?  How many are worth reading?  How many of those worth reading are exceptional?  We remember great authors for a reason: There aren't very many of them.

We can't expect everyone to be an Oliver Wendell Holmes.  As in every profession, competence is common; exceptionalism is rare.  Yet if you took a poll, you'd hear the converse.

Almost every lawyer considers himself an exceptional legal writer.  A few  (especially good trial lawyers) consider being a poor legal writer a point of honor.  They will tell you, "I can't write," and laugh.  Outside of them, most lawyers would say they are just fantastic writers. "And yes, I would love to red-line the brief you wrote.  And, no, you can't start a sentence with 'and' because that's how I was taught and that's the end of the discussion.  I'm an excellent writer, after all, and thus you should listen to me."  Given that excellence is an exception, a lot of people are tricking themselves

Comments

[Martin Magnusson]

I agree that not every legal writer can be OWH.

That does not mean, though, that the sad state of legal writing is a foregone conclusion. The problem is that lawyers get away with writing prose that makes no sense, lacks any style, or both.

As a whole, legal writing is quite bad and I disagree with your notion that "competence is common." In our profession, competent, simple writing is actually *uncommon*.

[Mike]

Your bio says you haven't been practicing law for even a year. What experience do you have that leads you to believe that: "As a whole, legal writing is quite bad"?

What legal markets have you worked in? Rural only? Urban? Do you have a national practice?

[Martin Magnusson]

Mike: It's true. I don't have a national practice.