Lawyers and writing: do you suffer from the Dunning-Kruger effect?
The peculiar relationship between lawyers and the written word
In the digital era, a lawyer’s ability to write articles has become an increasingly important weapon in the never-ending battle to attract new clients. As a result, the idiosyncratic way lawyers use the written word is now more obvious, and even more problematic, than ever before.
On the one hand, lawyers make their living from using words. We draft agreements, pleadings, letters to clients and advices.
On the other hand, many lawyers don’t write well. Most of us use long, curly sentences and way too much legalese, and our lengthy paragraphs can cause regular citizens to lapse into a coma. We also have a fondness for pretentious and old-fashioned expressions such as ‘herein’, ‘hence’ and ‘thereafter’.
Before you become outraged at this observation, let me introduce you to some big guns in the field of law and language who, like me, believe that most lawyers massacre the English language on a daily basis.
Meet Professor Peter Butt
Emeritus Professor Peter Butt, of the University of Sydney, is the Australian guru on the controversial subject of legal writing. In the early 1990s, he was Founding Director of the Centre for Plain Legal Language, as well as a Professor of Law, at the University of Sydney.
For nearly 30 years, Professor Butt has campaigned tirelessly to ensure that the law is communicated in ways that non-lawyers can understand (and has practised what he preaches, in his seminal textbook on property law). He has spent many years teaching plain language law to Australian lawyers and still works for the Plain English Foundation as a consultant legal trainer.
- Undue technicality
- Archaic language
- Illogical word order
- Complex grammatical structures
- Sentences of excruciating length.
Still don’t believe me?
Meet Professor Bryan A. Garner
In 2013, Professor Bryan A. Garner, an American lawyer, lexicographer and academic who has written more than two dozen books on English usage and style, advocacy, legal drafting and, most importantly, golf, published an article in the American Bar Association Journal entitled ‘Why lawyers can’t write’.
It is an interesting piece in which Professor Garner takes out his metaphorical hatchet and has a real go at lawyers for their inability to string words together in a comprehensible way.
He claims that: ‘[W]hile lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words.’
Second, he argues that transactional lawyers are even worse writers than litigators, who at least receive some sort of scrutiny from the courts, with judges calling them out on their inept way with words.
Third, although all experience levels are guilty, Garner believes that the incidence of woeful writing is higher among what are called ‘newly licenced lawyers’ in the United States, and ‘recently admitted solicitors’ in Australia, than among experienced practitioners.
Finally, Professor Garner claims that not only do the vast majority of lawyers not write well, they also suffer from an affliction called the Dunning-Kruger effect.
What is the Dunning-Kruger effect?
In 1999, David Dunning and Justin Kruger, two psychologists from Cornell University, conducted a series of studies which showed that people who are lacking in skills or knowledge:
- Often think they are quite skilful or knowledgeable
- Cannot recognise genuine skill in others
- Uniformly fail to recognise the extremity of their own inadequacy
- Can recognise and acknowledge their previous unskilfulness only after training in the skill.
The study was inspired by a man who robbed two banks within a couple of hours after covering his face with lemon juice, in the mistaken belief that, because lemon juice is usable as an invisible ink, it would prevent surveillance cameras recording his face.
In his article, Professor Garner argues that most lawyers suffer from the Dunning-Kruger effect. He claims that not only are they unable to write, but they are completely delusional about their writing abilities. In other words, we think we’re fabulous writers when we’re actually hopeless.
Are you confused? Are you, like me, horrified that Professor Garner thinks you’re as daft as some dude who covers his face with lemon juice, then walks into a bank and yells, ‘Stick ‘em up’ because he is convinced he’s invisible?
Do lawyers really suffer from the Dunning-Kruger effect?
As I’m a copywriter with a legal background, firms often ask me to run workshops on article writing (or blogging) for lawyers. Unsurprisingly, firms are putting increased emphasis on article writing because it’s a powerful marketing tool for both individual lawyers and their firms. As they now say, ‘content is king’, but many firms are finding that their lawyers’ dreary little case notes are sinking like stones.
Nevertheless, many of the lawyers who attend my sessions seem irritated that they have to take time out of their hectic day to spend a couple of hours with me. They don’t see article writing as a skill they need to develop. After all, anyone who has been through law school knows how to write an article.
I’m sympathetic. I used to be a fee earner in a law firm, and I was the first person to whine whenever I had to attend yet another training session.
Nevertheless, in today’s digital world, it’s important to learn how to write a good legal article that will have an impact. It also involves quite a bit of skill and thought. If you’re trying to draft an article that will actually persuade a client to pick up the phone and call you, it needs to be more interesting and useful than a dry, academic case note.
In my workshops, I often hand out copies of Professor Garner’s ‘Why lawyers can’t write’ article and then spend a few minutes discussing why I’ve been retained to torture them for a couple of hours during their busy working week.
I’ve yet to find a lawyer who, on reading the Garner article, doesn’t agree that lawyers often do terrible things to the written word.
Although, in my life as a legal copywriter, I’ve come across lawyers who appear to suffer from the Dunning-Kruger effect, I’ve concluded that the vast majority of lawyers do not suffer from it.
Instead, I think the situation is more complex than Professor Garner implies. I believe that lawyers fall into three broad groups when it comes to their attitude towards writing:
- A small group suffers from the Dunning-Kruger effect.
- A larger group has become so trapped by the traditional way lawyers write, they think it’s normal.
- A final group believes that practising law has damaged the way they write but they can’t see any solution to the problem.
Lawyers who have forgotten that they don’t write well because the traditional legal way of writing has become normal
I believe that a lot of lawyers don’t know they don’t write well, simply because, over the years, they have adopted ‘legalese’ as the norm.
This is understandable.
At law school, you spend most of your time reading judgments, writing turgid case notes and answering problem questions. Consequently, law students conclude that writing in the traditional lawyerly way is a skill that is valued and must be nurtured.
After all, most law schools run courses in legal research and writing. In most of those courses, insufficient attention is given to plain legal drafting.
Once they enter the profession and start working, many junior lawyers feel the need to hide behind legalese, especially when dealing with clients. I put this down to professional insecurity – the old sneaky tactic of ‘I’ll baffle the client with jargon to cover up the fact that I’m still finding my feet’.
In addition, this traditional legal way of writing is often encouraged by supervising partners, who first embraced legalese some time ago and cling to its peculiar and archaic forms of expression. In the end, it’s a brave junior lawyer who challenges a partner in a traditional law firm about the way something is written. After all, most law firms are still structured in such a way that partners bark instructions and everyone else obeys them.
For most young lawyers, after a couple of years spent in a law firm, the traditional legal style of writing becomes normal – even something to be admired.
Lawyers who secretly believe that becoming a legal practitioner has destroyed their ability to write
This group of lawyers is made up of practitioners who know they don’t write particularly well but pretend they think they do, because they have to make their living from using words.
In short, they claim that while their ability to write well has been impaired by the norms of their profession, the damage is irreparable.
These are often the kind of lawyers who had a creative bent in high school. They wrote interesting English and history essays. They were the shining stars in art or drama class. However, once they entered law school and then the profession, they found that every ounce of creativity was slowly squeezed out of them.
I agree with Professor Garner that transactional lawyers tend to be worse writers than litigators, simply because drafting agreements all day does nothing to preserve your ability to write in a lively or entertaining way.
And I would argue that most lawyers are in the group who are aware that practising law has done terrible things to the way they write, but can’t see any solution to the problem.
What is the solution?
I believe that every lawyer can learn how to become a better writer. I am also convinced that lawyers who learn how to write well will have an edge over their competitors.
Here are my tips on how lawyers can become better writers.
Tip No. 1: Become a master of clarity
When I first started working in a law firm, a partner who was an exceptionally talented writer supervised me.
His advices were the stuff of legend – for the quality of his legal analysis and because his meaning was always crystal clear. The clients loved them (and him).
Sadly, clear writing is a skill that many lawyers undervalue. However, I contend that it’s as important to be able to draft a high-quality legal article, which both breaks down a complex legal issue for clients and markets your skills as a legal advisor, as it is to draft the perfect pleading in a highly complex commercial case.
The truth is that distilling complex ideas into clear and simple language takes a great deal of expertise, because:
- Clear writing represents clear thinking.
- Clear thinking involves both time and hard work.
- It is extremely difficult to distil a complex idea into simple language that everyone can understand.
The best and clearest way to write an article is to introduce the concept or idea, link one point to the next and then sum up with a conclusion. This will ensure that you explain the topic to your readers in a clear and coherent way that makes the concept or idea easy to absorb.
Put yourself in the shoes of your reader. Is your article as easy as possible to digest? After all, everyone has a lot to do and attention spans are short.
Tip No. 2: If you are writing an article to post online, big-picture pieces are likely to be more effective than case notes in attracting prospective clients
The reality is that big-picture articles are probably going to be more effective in persuading prospective clients to get in touch than are short case notes.
Legal articles that gain traction on Google tend to be ‘thought leadership’ pieces that provide a sweeping picture of the law.
A bonus is that big-picture articles work better from a search engine optimisation (SEO) perspective, because you’re more likely to pick up traffic (and garner attention) from a general topic that delineates a complex legal issue than from a piece on something very specific.
If you care about SEO, it may even be worth doing some keyword research to find out what the popular searches are.
Most importantly, it’s the big-picture type of article that is more likely to help you build your reputation as an expert in your field.
Tip No. 3: Flex your analytical skills to ensure that every document you write is suited to its purpose
Legal analysis is a very specific skill.
It is also quite a narrow way of thinking.
You can’t simply apply the same approach to every professional writing task you undertake. Each one requires its own strategy and may even require looking at what is involved from a completely different angle.
- Most tender responses that law firms prepare are narcissistic and overly descriptive. They also tend to include meaningless platitudes. When you are drafting a tender response, you need to present your skills and experience so as to convince the client that what you are offering is substantial and meaningful, and that they should retain you. You need to get into the client’s head and think about what they are looking for in a legal team. In other words, you should be explaining how you can help the prospective client when you join their panel of legal service providers, rather than indulging in pages of waffle where your firm is doing nothing more than patting itself on the back.
- When you are writing an article, it shouldn’t just delineate a legal issue, concept or topic; it should drive the reader to keep reading because it is informative, useful and, ideally, interesting.
- When writing website copy for a particular practice area, you need to explain why a client should choose your firm for legal advice on this type of law over any other firm. More specifically, you need to focus on what you offer clients that makes you different from your competitors. Again, most law firms fall into the trap of waffling on about themselves.
In short, the analytical skills you use for these writing tasks will be different from those you use when you draft an advice for a client, a letter to the other side, pleadings or an agreement.
Tip No. 4: Train yourself to write in different styles
Most lawyers use the same writing style for every document they generate. It’s an easy habit to fall into. However, I believe that every lawyer, even if they are very busy, needs to be able to change gears, depending on what they are writing.
This means that you have to become more flexible in the way you write, and adopt an appropriate style for each particular type of document you are drafting. This requires thinking not just about the purpose of the document, but also about its audience.
- If you are writing an article, this involves exercising different literary muscles than drafting an agreement. An article should demonstrate your communication skills. It may even be worth taking the radical step of sounding like a regular citizen, rather than a lawyer who only speaks legalese.
- If you are drafting pleadings, the task is more technical and requires a different style of writing than does drafting an advice or a letter to the opposing side. At the same time, clarity is essential.
- If you are writing copy for your website, you are presenting your firm to prospective clients. So, the copy should reflect the personality of your firm, not make you sound like every other firm.
Mastering the art of ‘writing smarter'
Again, most lawyers are extremely busy.
Nevertheless, in an increasingly competitive market for legal services, lawyers need to look at generating high-quality content as a way to distinguish themselves from their competitors and win work.
In the end, I believe, it’s a matter of learning how to ‘write smarter’. Instead of approaching your writing task in a passive way, take an active approach that will help you to determine the best possible method of communicating your message to your audience.
You may find that the skills you develop through writing interesting articles and appealing website content feed into your other work. They may well improve your advices, or letters to the opposing side, or the way you sculpt that lengthy agreement that’s sitting in your in-tray.
In the end, you have a choice.
When you start drafting your next article, or new copy for your website page, you can try the techniques I’ve suggested. Alternatively, you can pick up a pen, use lemon juice instead of ink and hope that whatever lands on the page will help you to bag that terrific new client.