Give a dozen brilliant mathematicians the same problem, and they will give you the same answer. Math has an objective truth to it; however, legal writing is different.
As with math, there are principles and logic with legal writing, but it is an art form, unique to each writer. So, give a dozen brilliant lawyers a brief to write, and they will each create a unique document that reaches the reader in its own way. There is no correct or incorrect.
The idea of legal writing as an art form is one of the most difficult concepts for law students to grasp—and understandably so. Students come to law school seeking to understand “the law,” but they soon learn that the law is often unclear. They see that drafting a legal analysis—in the form of a memo, a motion or a brief—is not as mechanical as solving an algebraic equation.
In my legal writing and analysis course, student writers frequently ask me questions like: “Should I analogize to another case?”; “What is the best word to use to effectively convey my argument to the reader?”; and “Is this argument even good?” These and other questions, the students will learn, have no answer, other than “It depends.” So instead, we teach principles and skills, provide feedback and help students to develop their professional legal judgment.
Naturally, in the absence of mathematical-type rules, some have tried to replicate them through technological tools. Certain tools do just that, like software that checks quotations for accuracy or scans for case citations, spelling and grammatical errors. Some tools also have motion templates for very basic tasks. Those are often very helpful to the busy writer and do no meaningful harm in the law school environment. Students, for example, have been using spellcheck well before they walked into law school.
Other tools, however, are beginning to go much further and concern me as a law professor. BriefCatch.com, for example, boasts using “natural language processing, machine learning, and artificial intelligence” to make you sound like a Supreme Court justice. Another platform, Compose.law (a product of CaseText), promises to provide “all the arguments, legal standards and prepackaged research you need to get things done, faster than ever.” It has a motion library that automates the beginning of the drafting process.
Legal technology is rapidly evolving and, to the extent it cannot now, it will soon have the capability to research and write legal briefs, emails and memos, perhaps, even without our input. Whatever benefits advanced legal technology may bring to lawyers, I am concerned about this sort of technology seeping into the legal writing classroom (and to be sure, it may already have—we don’t have reliable metrics).
The problem with law students using advanced legal writing technology stems from the reality that writing is an iterative experience. Unlike solving for “X,” part of becoming a great legal writer is experience. A series of first attempts followed by another round, and then another, to no objective end. The struggle to create arguments, string together prose and develop professional judgment in selecting words, cases and everything in between is part of what it takes to grow into a good, seasoned lawyer.
My concern is growing as legal technology is sprouting that not only identifies objective errors, but begins mimicking a lawyer’s hand and mind. Advanced technology like this may well prevent a student from growing into their full potential as a lawyer, replete with a possible lack of foundational professional judgment as a writer. We don’t want to spawn a generation of law students less skilled than their predecessors in our craft. That would be a shame.
So instead of using software to bypass and replace the learning process, students should try (and try again and again) to strengthen their legal writing muscle. Good writing and analysis comes with practice. Students should study the works of great legal writers such as Chief Justice John G. Roberts Jr., in addition to reading good writing in novels, briefs and even magazines. And of course, law students have committed legal writing faculty members who are eager to share their love for the law and teach their craft.
This is not to say that we should reject legal technology—quite to the contrary. Legal educators should embrace technology where it makes sense: digital textbooks, online research platforms, asynchronous lectures, and, in the face of a global pandemic, platforms like Zoom. These are easy propositions. We could also examine some of these new advanced technologies in upper-level courses in a deliberate and thoughtful way.
But we should be cautious of technology where it has the potential to replace the professional judgment that law students must develop. A computer program cannot solve a legal problem or persuade a judge, nor dictate how to effectively represent a client. In legal writing and analysis, the magic and power of our combined words come in their variation, style and strategy—and most importantly, from our own minds.
No computer can emulate that.
Michael A. Zuckerman is a seasoned lawyer who teaches communication and legal reasoning at the Northwestern University Pritzker School of Law. Before joining the law school faculty, Zuckerman practiced law at Jones Day and clerked for several federal judges.
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