The Quest to Take Legal Writing from Art to Science
My five-year quest to discover what makes great legal writing great
By Joe Regalia
“It’s an art.”
“You either have the talent or you don’t.”
“Just keep doing it and eventually you will be great.”
This is how a lot of lawyers talk about legal writing. You either have the chops or you don’t. But that’s a pretty depressing view of things, isn’t it? Writing is a lawyer's craft—it’s the medium in which we do nearly all our work. Are we supposed to believe that whether we are good at it comes down to talent or decades of experience?
I was not having it. My whole life I’ve been obsessed with writing. A writer is the first thing I ever wanted to be as a kid. And it’s what brought me to the law. Writing is a little like magic. You take ideas from your head—complex, fascinating, meaningful ideas—and you transfer those ideas into another person’s mind. Good writers can do this magic in ways that change how people see the world. It’s a powerful and exciting thing.
But loving writing and being good at it are different, a lesson that was especially hard to miss as I entered the legal world. The lawyers who can write well are, not coincidentally, successful. They persuade others. They have great reputations.
The lawyers who struggle with writing often don’t do so well.
So what separates the two groups? I needed to know. And I thought everyone else did, too.
So I set out to find some answers about becoming a better legal writer. Is it really just raw talent that separates the Justice Kagans from the rest of us? And if not: What makes good writing good and how do we start learning to do it ourselves (and quickly)?
I’m a scientist at heart, so I got methodical. I collected a database of motions and briefs that eventually numbered in the thousands. I selected documents that met certain metrics, including factors like whether the author had a high rate of winning on their briefs, whether the author was a well-regarded writer, and whether the briefing met good readability statistics. I also gathered every legal writing book out there (more than 200 now). And to round it out, I included the most foundational general writing books (think Strunk & White and William Zinsser).
Perhaps most importantly, I then worked with a cognitive scientist to put together all the cutting-edge science on persuasive writing. We created a repository of research that touches on ideas that might matter to us legal writers. Research on how we process written information, our biases, and much more. In looking for the holy grail of good legal writing, I didn’t want to leave it all up to what the “good writers” do and say. That’s important, but not the end-all. I wanted to pull in as much hard science as exists.
Once I collected all this data, the real work began. I needed to answer three questions. First, cutting through the bluster, do most successful writers end up using the same writing techniques predictably? If so, can we learn those techniques too? Second, does the science back up that these techniques really work? Put otherwise, can we be sure they aren’t just hanging around from years of tradition? And third, how can we actually train ourselves to use these same techniques?
Answering these questions became a five-year obsession. But a fun one. And the results are now in:
Yes, good writers use many of the same techniques—over and over.
Yes, many of those techniques are backed by cognitive science (but not all of them).
And most importantly, yes, you can train yourself to use these techniques (and easily).
In short, objectively good writing techniques exist and you can learn them with a little focused effort.
I should pause here and acknowledge that many would balk at the use of “objectively good” and “writing” in the same sentence. And fair. Even though I’ve spent years pouring through research on how readers think and what the best legal writers have to say—I can’t say it’s an exact science. Writing is like playing the piano. It looks easy, and it’s relatively easy to learn Twinkle Twinkle. But it’s not easy to be Franz Liszt. That said, my research makes clear that tons of writing techniques do work, and you can train yourself to use them.
So what do these techniques look like? Well, it turns out there are a lot of them. I have a list of over 1,000 techniques (and because I continue researching every day, that list is always growing). They range from the simple and familiar—like using the passive voice smartly—to the advanced—like using rhetorical flourishes or specific cognitive science principles.
But a list with over 1,000 techniques isn’t useful, so I spent a lot of time weeding out the less compelling stuff. If a technique only appears in one or two sources, I generally cut it. My philosophy is: I’m not qualified to tell you what good writing is. No single person is. So crowdsourcing helps distinguish between what is worth paying attention to. If I find a technique being used by a practitioner, and I can find some solid support in the science—it comes in. If I find lots of winning and well-regarded folks using a move, it also comes in. Same with advice from writing scholars.
This process culminated in about 300 top techniques that the best writers and science confirm actually persuade our readers. The best part is that with this list comes a transformational power: The ability to train discrete parts of your writing so that you write like the greats.
Aside from these discrete good-writing moves, I extracted something equally exciting: Ten principles that operate to make all the smaller techniques work. These ten principles flow through all the best legal writing, in one way or another. Understanding these principles brings the added bonus of discovering new techniques that leverage the fundamental science and practice of persuasion.
I can’t list all 300+ techniques here, but those ten principles work a lot of magic on their own. They include:
Tell a story. Good stories persuade. So build characters, scenes, and a plot. Create a story arc that plays on your reader’s emotions and senses.
Weave in Themes. Capture your reader’s heart with themes that tap into their values.
Craft Rules. Take complicated rules and turn them into simple and intuitive ideas.
Write Fluently. Write so your points slide off the page without effort from your reader.
Cut Clutter. Cut every word, every sentence, every idea, and every section that isn’t changing the outcome.
Highlight the Gold. Highlight your winning facts and arguments so they can’t be forgotten.
Start Smart. Craft beginnings that subtly influence how your readers see everything that comes after.
Know Thy Audience. Write with a tone that makes you likable and cuts through skepticism and bias.
Edit Systematically. Edit smarter, edit harder, and achieve excellent results.
Build Your Processes. Adopt processes and technology that will make writing easy and effective.
These are the 10 commandments that the experts and science confirm will transform your writing from good to great. In the next ten posts we'll explore how to use each principle in your everyday writing.