Few would argue with the suggestion that a crucial skill for any lawyer who makes a living helping clients resolve disputes is the ability to persuade. Anybody can look up a case. And, while novel arguments or clever strategies can enjoy a certain symmetrical beauty, the ability to persuade, to sell, is ultimately what separates a good or great lawyer from the merely adequate. To this premise, I would add that the ability to write, to string together sentences in a clear, articulate and persuasive manner, is the most crucial skill of all and one clients should absolutely insist upon.
Why is writing such a critical skill to our trade? Conceptually, persuasive writing doesn’t just require a command of language, it compels organization. Even a point delivered orally requires a structure, if it is going to persuade. Clear writing always embodies this structure. It reflects the ability to conceptualize and frame an argument. Like the frame of a house, a clearly framed argument helps guide the reader—often a judge—follow on the journey to the desired conclusion. It lays a firm foundation for the real magic which, in the context of the law, is the synthesis, or interweaving, of evidentiary facts with a governing rule. There is no substitute for the ability to organize and frame an argument.
In modern civil disputes, it is always a written instrument—a complaint or claim—which sets a case in motion. While it’s certainly possible to win a massive verdict or coax a settlement out of a case premised on an inartfully drafted complaint, the complaint frames the issues, sets the tone of the case, and introduces the parties and their lawyer. If the complaint is sloppy, exaggerates or overreaches, it underwhelms both the judge and the lawyer on the receiving end. The judge may become prejudiced. Equally important, there can be a subtle, almost imperceptible, shift in the balance of power between the opposing lawyers. Respect between counsel must typically be earned; it is rarely presumed.
Most crucial of all, ask any civil trial or appellate judge and you will hear that, in all but the rarest instances, an argument is won or lost on the quality of the papers. This is not to discount the importance of having favorable law or facts. But good law or compelling facts are worthless if your lawyer has not articulated them in a clear and persuasive manner.
Clients should demand their lawyer have impeccable writing skills!