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.