Last week I kept asking myself, Why bother?
Not in a nihilistic way - it arose while I was preparing a lecture on legal writing for a local bar association. (Which by the way went swimmingly and I dearly hope it'll be the first of many. Stay tuned.)
Legal writing in law school was a hard sell. It always seemed too basic to require much practice and every exercise was a chore I met with derision. So in case my bar association audience was in the same place, I wanted to justify its expenditure of time and energy.
This is where I wanted to cite statistics analyzing the effectiveness of quality legal writing versus abysmally edited, poorly articulated, unpunctuated, slapdash drivel that passes for "written argument" in so much of the profession. But there don't seem to be any, and for obvious reasons - what self-respecting judge will admit she ignored an argument's substance in favor of its presentation? Anyway, how would you even quantify the variables, and what's your thesis - that the more passive-voice sentences in your brief, the slimmer its chance of success? (OK so that's maybe not bad. File it in lists of projects to undertake before retirement. Or after.)
At any rate, we don't have much to work with. But what is available - the subjective assessments of the people you need to convince, i.e. the judges deciding your case - is incredibly valuable. And judges are clear that if they want one thing, it's an easier job.
This is true of any reader - take, for example, Williams & Bizup's guide Style: The Basics of Clarity and Grace: "Most of us do work hard to understand [difficult writing] - at least until we decide that a writer failed to work equally hard to help us understand or, worse, deliberately made our reading more difficult than it has to be. Once we decide that a writer is careless, lazy, or self-indulgent - well, our days are too few to spend them on those indifferent to our needs."
Is this the attitude you want to elicit in the person deciding your client's case?
From the judicial perspective, take a classic lecture called The Wrong Stuff, in which Ninth Circuit Judge Alex Kozinski instructed his audience in how to submit a losing brief. To achieve this he recommended long briefs full of things like convoluted sentences, ad hominem attacks (never persuasive), and buried arguments. If, after deploying these strategies, you still manage to win your case, he says "you ought to give up practicing law and start playing the lottery."
Not once have I seen a judge celebrate legalese, or legal style generally. Instead, USDJ Lynn N. Hughes's sentiment is representative: "The common language of the law is not the product of necessity, precedent, convention, or economy, but it is the product of sloth, confusion, hurry, cowardice, ignorance, neglect, and cultural poverty."
But lawyers can counter this. According to Judge E. Barrett Prettyman, our "greatest weapon is clarity, and its whetstone is succinctness."
It's impossible to know the impact of, for example, your direct and persuasive point headings on the effectiveness of your argument. But what we do know is that these - along with accurate citations, clear arguments, and steadfastly correct usage (no "lavatories of innovation and democracy," thank you, Gov. Rick Perry) - make a reader's job easier and contribute to the court's impression of you as a credible and trustworthy advocate.
Regardless of whether you do, judges care.