New lawyers are generally not prepared for the rigorous practice of law. Why? They simply do not yet have the practical and efficient legal writing skills required for a litigation or transactional practice. New attorneys must develop the actual skills necessary to write sound motions, briefs, memos, letters, and documents (like contracts and trusts) in a professional, practical, and non-intellectual manner.
This blog addresses the following points:
- Law school did not prepare your new attorneys for the actual practice of law.
- New attorneys must draft documents that are concise and accurate. As training, they should take a legal writing course for practicing attorneys.
I have taught or mentored hundreds of students who have completed pre-law courses, were law students, or new lawyers. Below are tips for success in a new practice. Click here to review our legal writing course, Legal Writing Launch (LWL or Course), and see if our Course might assist your firm as training for new lawyers. A new lawyer, who took LWL, called it her “savior.” One of our target audiences is new lawyers. (View the introductory video, and access the actual contents of the Course under any of the course levels—Basic Course, Assignment Editing, and Zoom Weekly Meeting [which includes Assignment Editing].) Students who had failed the Bar two and three times completed the Zoom Weekly Meeting level, and then passed the October 2020 California Bar! (See more on the Course below.) Feel free to reach out to me at (415) 939-5241 to see if the Course is right for your new attorneys.
Law school did not prepare your new attorneys for the actual practice of law.
As difficult as it is to hear, law school does not prepare new attorneys to practice law. In fact, law schools do not teach new lawyers how to practice law.[1] New law school graduates are simply not “practice-ready.”[2] One commentator went so far as to say that law schools are flooding the market with incompetent lawyers.[3] Preeminent legal commentator, Bryan A. Garner, simply states “lawyers don’t write well and have no clue that they don’t.”[4] According to Garner, lawyers “may only recognize their previous unskillfulness once they gain these skills.” He further notes that this is particularly true for newly-licensed lawyers.[5]
Why the poor writing? According to Garner, the blame falls mostly on law schools. Professors provide students with “poorly-written, legalese-riddled opinions that read like over-the-top . . . parodies of stiffness and hyperformality.”[6] And, law professors offer little if any feedback on writing in exams or assignments.[7] Junior lawyers are neophytes, Garner believes, and are ready for an apprenticeship with a good mentor (may they be fortunate enough to find one) and not for the practice of law.[8] Although some law schools may offer a clinic or two to prepare students for real-world practice, this training is not enough. Many law schools do not actually require any training prior to a student’s seeking State Bar licensure.[9]
Students come to law school to be trained as lawyers, and not as academics.[10] But, that is what law school does—trains students as academics. One commentator criticized the academic community for its overemphasis on impractical scholarship and its unwillingness to teach students about the reality of law practice.[11] Why is it that a first-year moot court student drafts an appellate brief? Why does that student participate in a moot court on that brief? How many new lawyers will write appellate briefs right away? How many will snag the plum oral argument in the court of appeal on that brief? Law school should focus upon the practical motions, briefs, memos, and letters that most new lawyers will write every day. At the small firm level, the skill set needed to practice takes years to develop and refine.[12] This is particularly disheartening with the recognition that the majority of lawyers in private practice are in solo practices or small firms.[13] The bottom line is: there is a need for competent new lawyers who can enter practice, thinking and writing critically; yet, there is a noted lack of these skills in modern law-school graduates.[14] Unfortunately, new associates often find themselves ill-prepared for the rigorous practice and demands at their law firms.[15]
There have been calls to “ditch” the entire third year of law school, and make it more like a medical school with rotations through different areas of practice.[16] One commentator suggests that there should be higher degrees of clinical and practical concentrations as one moves closer to practice.[17] Another author believes that law schools should integrate practical and doctrinal training throughout the curriculum.[18] Specifically, the last commentator states that professors should elevate skills training to a position of greater parity with doctrinal classes—and frankly, these changes are long past due.[19]
Although new attorneys may have written an appellate brief, they likely have not written letters, memos, motions, briefs, and other legal documents for the real world. New lawyers can learn to write powerfully, in sound paragraphs, using IRAC/CRAC, and in plain English. And, they can learn now with the proper training.
New attorneys can become clear thinkers and clear writers, and learn the writing skills of the trade. “The dependence of good writing on good thinking cannot be overemphasized.”[20] Stated slightly differently, students who write unclearly think unclearly.[21] Law is essentially a trade and is based upon flawless writing, logical reasoning, and persuasive argumentation.[22] Not coincidentally, these three skills make up the trivium, the classical and medieval curriculum of grammar, logic, and rhetoric, which formed the basis of legal education for centuries.[23]
New attorneys must draft professional documents, which are concise and accurate. As training, they should take a legal writing course for practicing attorneys.
Sound writing skills play a key role in drafting professional correspondence, memos, motions, briefs, and other legal documents for the real world. New lawyers can learn to write powerfully, in sound paragraphs, using IRAC/CRAC, and in plain English. In legal writing, if the drafter does not wish to lose the reader immediately, the drafter must write in power-packed paragraphs™*. What is a power-packed paragraph? It is a phrase I coined, for law, after learning the expression from one of my excellent high school English teachers! She used the expression to describe the paragraph structure for writing basic English papers. What is a power-picked paragraph in law? I prefer CRAC . . . to IRAC. Lawyers know that IRAC is the analytical structure law professors teach students in drafting legal documents, like motions. IRAC is Issue, Rule, Analysis, and Conclusion. CRAC simply means that the drafter starts the paragraph with a Conclusion, a mix of law and facts, which is an affirmative statement rather than a question. In the real world, practitioners attempt to write forcefully. Starting each paragraph with a question is generally ridiculous, particularly in a motion; it is not the forceful writing required for advocacy.
Here is an example of a paragraph using CRAC. The first Conclusion, generally, is a mix of law and facts that the writer drafts as an affirmative statement. For instance: a jury likely to find the defendant, Jack King, guilty of first-degree murder when he pulled a gun and shot his wife five times, killing her. Next, the writer states the Rule moving from “big to small.” In other words, the drafter states the broader legal principle and “drills down” to move to the exact elements. Here is an example: For murder, the defendant must have the mental state of malice aforethought at the time of the killing. (Pen. Code, § 187.)** Malice aforethought is either express or implied. (Ibid.) A defendant has the mental state of express malice aforethought when he/she/they has/have the intent to kill. (Ibid.) What follows next is the Analysis where the writer states the facts/evidence, and marries the facts to the law. Using our hypothetical: Defendant Jack King (defendant) extracted a gun from under his suit jacket and fired it at his wife and victim, Debra Jones, point-blank. Specifically, he had a gun under his suit jacket, having placed it there himself. The defendant removed it. Then, he aimed the gun at his wife. Based upon the forensic evidence—specifically the gunshot residue on the defendant’s right hand, the prosecution’s forensic expert will opine that the defendant fired the gun, striking his wife, from only inches away. The five bullet holes reflect that the defendant shot his wife five times. When the defendant removed his gun from his jacket, aimed it at his wife, and pulled the trigger, he had formed the intent to kill her. And last, in the paragraph, is a brief Conclusion. (If the paragraph is short and the Conclusion does not add anything, the writer can omit it.) Here: Therefore, a jury is likely to find that the defendant committed first-degree murder when he shot his wife five times, point-blank and killed her. (For more on using CRAC, see our blog on CRAC.)
Firms should also offer training to new lawyers in drafting strong business emails, which are organized, straight-forward, concise, and clear. Recognizing that the paragraph structure is key to any professional writing, attorneys should treat email as a formal communication and write using a topic sentence, the principles raised, and examples. Here is a business email example that I, as a professor, wrote to my class, addressing three issues, all in our paragraph:
Hi Class,
I write here about our chat room session tomorrow night concerning course evaluations, presentations, and edits to the motion to suppress. First, you will complete evaluations from 7:15 to 7:30. Check your mailboxes for receipt, and then, submit the completed evaluations, as indicated. Evaluations are important to the program and to the professors, so please do complete them. Second, we will next turn to the presentations on the Michael Jackson child molestation case and O.J. Simpson robbery case. Please note that you must submit at least one question or comment to a presenter on the topic. And third, please read the (edited) Opposition to Motion to Suppress Evidence. It is attached here, and in Course Resources. Please make at least one comment regarding the effectiveness of a particular change, noting how the change fulfilled a Conclusion, Rule, Analysis, and Conclusion (CRAC) requirement.
See you tomorrow night in the chat room,
Bev Meyers
(For the entire blog about business emails, please see the blog).
How can new lawyers develop logic and writing skills in which they may be deficient? And quickly? The training should include an intensive legal writing course. There are many good online legal writing courses. Our course, LWL, is a great choice because the Course includes the option for live instructor feedback, is self-paced, and is available on-line with easy-to-use educational technology. One commentator noted that students should harness educational technologies to develop some of the basic skills necessary for law school.[24] Another commentator has discussed the value of the Core Grammar for Lawyers online platform to prepare students for practicing law.[25] LWL offers Core Grammar as part of its focus in ensuring that pre-law students, law students, and lawyers know the fundamentals of grammar.
Billionaire investor Warren Buffet states, “[b]y far the best investment you can make is in yourself.”[26] Buffett added that developing one’s communication skills—both in writing and in-person—”can increase [one’s] value by at least fifty percent.”[27] You should invest in your new attorneys, right? So, have them write!
[1] Dolan, Opportunity Lost: How Law School Disappoints Law Students, the Public, and the Legal Profession (Opportunity Lost) (2007) From the Selected Works of James M. Dolin, 2, https://works.bepress.com/jason_dolin/1/
[2] Flanagan, The Kids Aren’t Alright: Rethinking the Law Students Skills Deficit (Kids Aren’t Alright) (2015) Brigham Young Univ. Educ. And Law Journal 136, 181. https://scholarship.law.umassd.edu/fac_pubs/90/
[3] Opportunity Lost, supra, at p. 1.
[4] Garner, Why Lawyers Can’t Write (Why Lawyers Can’t Write) 1, 1. https://www.abajournal.com/magazine/article/why_lawyers_cant_write
[5] Why Lawyers Can’t Write, supra, p. 2.
[6] Why Lawyers Can’t Write, supra, p. 2.
[7] Why Lawyers Can’t Write, supra, p. 2.
[8] Why Lawyers Can’t Write, supra, p. 3.
[9] Opportunity Lost, supra, p. 9.
[10] Opportunity Lost, supra, p. 9.
[11] Uphoff, Clark, & Monahan, Preparing the New Law Graduate to Practice Law: A View from the Trenches (Preparing the New Law Graduate) (1997) University of Missouri School of Law Scholarship Repository 380, 387. https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1383&context=facpubs
[12] Opportunity Lost, supra, p. 13.
[13] Preparing the New Law Graduate, supra, p. 409.
[14] Viatar, Adams & Reese, Legal Education’s Perfect Storm: Law Students’ Poor Writing and Legal Analysis Skills Collide with Dismal Employment Prospects, Creating the Urge to Reconfigure the First-Year Curriculum (Legal Education’s Perfect Storm) (2012) 61 Cath. U. L Rev. 735, 742, n. 26. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2142812#:~:text=Legal%20Education%27s%20Perfect%20Storm%3A%20Law%20Students%27%20Poor%20Writing,the%20Urgent%20Need%20to%20Reconfigure%20the%20First-Year%20Curriculum.
[15] Legal Education’s Perfect Storm, supra, p. 4.
[16] Opportunity Lost, supra, p. 17.
[17] Opportunity Lost, supra, p. 18.
[18] Opportunity Lost, supra, p. 18.
[19] Opportunity Lost, supra, p. 18.
[20] Legal Education’s Perfect Storm, supra, p. 741.
[21] Legal Education’s Perfect Storm, supra, p. 742, n. 26.
[22] Legal Education’s Perfect Storm, supra, pp. 755-756.
[23] Legal Education’s Perfect Storm, supra, pp. 755-756.
[24] Kids Aren’t Alright, supra, at p. 182.
[25] Kids Aren’t Alright, supra, at p. 182 and https://www.coregrammarforlawyers.com/
[26] Warren Buffet Says This 1 Investment Decision Will Be By Far the Best One You Ever Make, Inc.com (Jan. 2021).
https://www.inc.com/marcel-schwantes/warren-buffett-says-this-1-investment-decision-will-by-far-be-best-youll-ever-make.html#:~:text=In%20a%202019%20interview%20with,by%20at%20least%2050%20percent.%22
[27] Warren Buffet Says This 1 Investment Decision Will Be By Far the Best One You Ever Make, Inc.com, supra.
*The term power-packed paragraph is a trademark of Legal Writing Launch LLC.
**The citation format used here is from the California Style Manual.
