On Writing Standards (And Our Unreasonable Love Affair With The Past)

Same Shit Different Century_Misfortune of Knowing Blog

When I had a spare minute in the office yesterday, I grabbed this month’s ABA Journal out of my mailbox and opened it to Bryan Garner’s piece, Why Lawyers Can’t Write. I recognized the author as the guy who, laughably, teamed up with Justice Antonin Scalia for Reading Law: The Interpretation of Legal Texts, as though Scalia applies a principled legal analysis to cases rather than a political agenda.

While I know Garner by reputation, this brief ABA Journal piece is the first time I have actually read his writing. In general, I agree with his proposition that legal writing is too often dull and convoluted; however, I rolled my eyes at his bold and unsupported assertion about writing standards, which goes beyond the legal profession: “Writing standards have consistently fallen over the last century in secondary and higher education. (It would take a full-scale book to unpack that set of issues.).” I am curious to know what he would cite in this “full-scale” book to support this claim.

Anyone who has ever read a legal opinion from 1913 would know that legal writing had nowhere to go but up in terms of clarity and creativity. A quick Lexis search for 100-year-old U.S. Supreme Court opinions reveals numerous examples of atrocious legalese from our most illustrious legal thinkers of the time — men (and they were indeed all men) educated in the very best secondary schools and universities. Justice Mahlon Pitney’s prose makes me cringe, and though I know that any assessment of writing is subjective, I’m going to follow Garner’s example and simply assert that Pitney’s writing shows us that writing standards were low across the board in the early 20th Century.

In reality, though, every generation has its star writers, like Pitney’s contemporaries, Justice Oliver Wendell Holmes, Jr. and Judge Learned Hand, and our situation today is no different. Many lawyers love to write and write well, while others produce mediocre writing to meet the demands of our legal market. Skilled writing takes time, and the time of a skilled writer costs money. No client wants to be billed for beautiful writing. They want the cheapest brief, memo, or motion that gets the job done.

Garner’s assumption about the difference between writing today and writing a century ago is nothing more than an unreasonable glorification of the past. His complaints in 2013 are similar to the complaints of educators in 1912, when Edwin M. Hopkins of the University of Kansas wrote:

For every year the complaints become louder that the investment in English teaching yields but a small fraction of the desired returns. Every year teachers resign, break down, perhaps become permanently invalided, having sacrificed ambition, health, and in not a few instances even life, in the struggle to do all the work expected of them.

Similarly, as Shakespearean scholar and Yale professor Thomas Raynesford Lounsbury lamented around 1912:

On no one subject of education has so great an amount of effort been put forth as on the teaching of English composition with so little satisfactory to show for it. … While there are many men who write excellently, there is no increase in the proportional number of this body …

My guess is that educators in 1813 had similar complaints, as it seems nearly everyone thinks life was better in the past. Perhaps unsurprisingly, Garner’s ABA Journal article suggests his antiquated outlook extends beyond his love of antiquated legal writing. For example, he recounts an experiment he performs on his unsuspecting secretarial candidates: “[I ask them] to spell three words — such as idiosyncrasy, inoculate, and anoint. Candidates rarely spell more than one correctly, and I gently correct them.” After eighth grade, spelling an uncommon word correctly on the first try is a big deal only if you’re using a typewriter.


  1. I went to a Bryan Garner seminar about two years ago – a partner in my practice group is a big fan and “encourages” (read: instructs) all associates in the group to attend. Personally, Garner isn’t my “cup of tea” – I agree with basically all of your points – but I will say one thing for him. Unlike me, my best friend is a huge Garner fan. She spent a year working on rule of law issues in Afghanistan and once wrote him an email from over there looking for his opinion on a grammar debate she was having with co-workers. He responded very kindly, weighed in on the question, then thanked her for what she was doing over there and asked where he could send her some free books. It basically made her month. (Wouldn’t have made mine, but different strokes for different folks.) He was very gracious to a big fan. So that’s something!

      1. What an interesting exchange! Grumpy, indeed. I can sympathize to a degree because it must have been draining to answer all that mail, not to mention take away from what White really wanted to do – write books. Still, it’s hard to sell books if you alienate your fans!

  2. I think you said it all when you mentioned, “… it seems nearly everyone thinks life was better in the past.” I know always feel that way about so many things. As for writing, lawyers have it over the rest of us. Writing is not a passion of mine and words seem to be a passion of lawyers. It drives my friend, a lawyer, crazy when there are grammatical errors.

    1. Hi, Donna! My guess is that lawyers tend to like writing more than people who go into other professions. A huge number of English, Philosophy, and History majors enter into the field, and many lawyers dream of publishing fiction someday. So, I think you’re right: lawyers are often good writers, even if their legal writing isn’t the most imaginative sample of their written work.

  3. Love the KU shout out 🙂 Good technical writing is clear and concise, in my opinion. Most everything else is subjective, but there is a tendency to romanticize the past.

    1. Thanks for stopping by! Yes, good writing is clear and concise. Many people believe that grammar is an objective indicator of writing quality, but I tend to think that there is a great deal of flexibility in those rules. So, someone might think a sentence that ends with a preposition is objectively wrong, and I would disagree. There isn’t much about writing that falls into the objective category.

  4. I appreciate your point about how the educational mission has broadened over the last 100 years, and I also like your point about the arbitrariness of the standards against which so much writing (legal and otherwise) is judged. But I also wonder what purpose it serves to make the declinist/”Golden past” argument, anyway. Is Garner selling something?

    1. You’ve hit the nail on the head. He has a relatively good reputation as a lexographer, but his company sells continuing legal education courses on legal writing! He makes money off of convincing people that he’s a good writer and that they are not.

  5. I wonder how he knew that standards have fallen over the past century. How old is he?! I can’t imagine that anyone he interviewed would agree to work for him, so I hope he’s comfortable using his computer! 🙂 BTW, my numerically-focused colleagues usually have the same complaints about math skills ‘these days’. Same old, same old. Good post, AMB.

    1. Yeah, he doesn’t come across well in the article. Everyone seems to have complaints about “these days,” except for me. I like 2013. I like moving forward.
      Thanks for stopping by, Jane!

  6. I have recently noticed that grammar and English skills in the books I have picked up are in decline. I think that Theo’s point that there’s always a bad egg in everything could be true–I’ve just had the bad luck of picking up three books in a row where the person editing/writing wasn’t aware of the need for proper names to be capitalized and that starting sentences with coordinating conjunctions butchers flow. Unfortunately, I also ran across an author who said that grammar/typos weren’t a “big thing” she’d just “fix them later”–later after being published. I pray that this isn’t the norm, and I hope you are correct in saying that it isn’t.

    1. As a writing teacher myself, I’d argue that starting sentences with coordinating conjunctions does not butcher flow. I’ve got many bigger issues to correct in my high schoolers’ writing. And I’m not really even sure that I would correct a sentence that began with what my worksheets refer to as the “fanboys” conjunctions (for, and, nor, but, or, yet, so).

      1. I don’t mind minor grammatical errors; that’s how language evolves. Sometimes the only way to achieve the rhythm I want is to begin the sentence with a coordinating conjunction. Besides, I don’t think writing skills have changed much over time, but our exposure to bad writing probably has increased. Now, mediocre writers who would never have been published in the past are able to disseminate their poorly edited work on the Internet. There are wonderful self-published authors out there, but there are also mediocre ones (reading the sample and reviews can often uncover them). Thanks for your comment!

  7. There you go, I’d have spelled/spelt it ‘innoculate’ without a doubt 🙂
    Having worked with lawyers for many years I thoroughly admire how most can set out the pros and cons of a subject matter so clearly. Whether this has always been the case I really don’t know. The exception I’ve come across is one very learned Jersey lawyer who, very beautifully and stylishly, says the same thing three separate ways. It’s no wonder that he never lasted in partnership very long, but found his niche in sole practice.
    But I’d also like to see how Mr Garner justifies his position.

    1. I would love to read Garner’s book on the “decline” of writing! I would also love to see the first draft of his manuscript, which I’m sure will have many juicy misspellings like “innoculate.” Everyone’s manuscript has minor errors like that! We’re human.

  8. I’m often skeptical of ‘kids these days’ type arguments, but for some reason the decline in writing standards is one I hadn’t questioned. It’s a good point and one worth examining the evidence further.

    Looking quickly, I found this blog article http://dissenttheblog.blogspot.com/2009/08/has-student-writing-ability-declined.html citing evidence that writing ability hasn’t declined over the past decade. Over a longer term, there may be evidence for decline, but all that’s cited in the post is a decline in SAT verbal scores which I don’t think is the best metric.

    1. Thanks for the link. I’ll take a look at it. I’d be cautious about using SAT scores as an indicator of anything but a person’s aptitude for taking that particular standardized exam.

      When I hear the blanket statement that “writing standards have fallen,” my first question is, compared to what? I wonder whether these kinds of statements have an implicit component of racial and socioeconomic bias to them. For the elite students, who back in the day were all male and all white, my guess is that the standards have not changed, and the standard for lower socioeconomic individuals and for women has likely improved because a higher percentage of them receive an education that was unavailable to them in the past. Not everyone is going to be a great writer, whether they were born in 1900 or 2000.

      1. Changes in who is sampled are definitely important to factor in, something that was not considered in the post I linked to. It’s notable though that the math and verbal sections seem to follow somewhat different patterns when they presumably went through similar demographic shifts.

  9. Garner fails to note that more than a few secretarial candidates responded to his inquiry with “d-o-u-c-h-e-b-a-g.” If you consider yourself an expert on writing because you always win impromptu spelling bees with words you chose in advance, you have a wee bit of Dunning-Kruger yourself.

    1. Ha! I wouldn’t want to work for anyone who included a spelling test as part of the interview process. As for Dunning-Kruger, I bet there are many people who experience the exact opposite: self-deprecation and low self-esteem. Lawyers write badly because the market requires it, not because they’re oblivious about their own level of competence.

  10. I suspect the proportion of those who write beautifully to those who don’t are about the same as they’ve always been. It’s an art, after all, and while you can teach grammar and sentence structure to school kids, it is only those interested few who go on to learn beautiful writing is a joy forever.

    1. Yeah, not everyone is going to be a great writer. I wonder to what extent blanket statements about how great things were in the past are based on implicit racial and socioeconomic bias. What was so great about the past? That the vast majority of “great” writers were white men?

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