Month: May 2016

I get this question frequently from my readers:

“Can I succeed in law school even if English is my second language/I am a bad writer?”

More specifically, here is an actual email I got a couple of weeks ago:

Apparently, a lot of Larry Law Law readers are not from the US.

Actually I address two questions.

First, if English is your FIRST language AND you were/are a terrible writer in college, I would say two things:

• Your writing can always improve with deliberate practice, i.e., someone giving you feedback, and you working hard to respond to that feedback; BUT
• You are facing an uphill battle. If you are a terrible writer — or worse, hate writing — why you are pursuing a career in the law, which is entirely based on expressing complex ideas with writing?

Second, I have different things to say if you are worried about your writing because you think your English sucks because English is not your first language language (and you are otherwise pretty bright),  OR if you are a native English speaker but you rate your writing ability as just so-so — not terrible, but not awesome.

Here is the key and the good news.

Legal writing is its own thing. And law school exam writing is even more narrow and specific.

Law school exam writing has its own rules.

If you understand those rules and can apply them — or understand those rules faster than other students in your class — you will do well in law school, even if you are just a so-so or not-great “general” writer.

On the flip side: even if you are a very good “general” writer, if you do not learn the rules of law school writing, you won’t do well.

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Law school exam writing is its own language

Law school exam writing gives life to the late Justice Scalia’s recital of an old aphorism about legal writing (which is expressed in the form of an SAT-like analogy):

“Legal writing is to writing as military music is to music.”

What he meant was: legal writing follows its own narrow form and logic.

No piece of legal writing will be beautiful like The Master and Margarita, Ulysses, or The Great Gatsby. Or A Song of Ice and Fire, for that matter (since I am obviously obsessed with Game of Thrones).

In fact, it is beside the point if you do.

Literature is art.  Maybe a particular book has a purpose (exploring the ultimate ambiguity or simplicity of this life, shedding light on social issues, entertaining, uncovering the absurd, etc.).  Maybe it is an end in itself.

Legal writing (by lawyers) is not art.  It is functional. It has one purpose and one purpose only (“We’re gonna do one thang, and one thang only — killing Nat-zeesss….“): to persuade a decision maker (judge or jury) to make a particular decision within a framework of competing arguments.

Law school exam writing is a narrow type of legal writing. It is functional.  It is not art.

Law school writing has a different purpose from general writing or even professional legal writing by lawyers.

The purpose of law school exam writing is to persuade your professor that you have spotted more legal issues, more thoroughly and creatively, than 90% of the other students in your class.

That’s it.

You must write well within these confines to get a good grade.

This is bad news for good general writers who don’t take the time to know what the confines of good law school writing are.

This is great news for anyone who is a mediocre writer or does not speak English as her first language.

IF you master the confines, the unspoken rules of law school exam writing, you will do well in law school.

Even if you make grammar or usage mistakes in English.

What might be unacceptable for literary writing or even normal legal writing — some level of typos, grammatical mistakes, unexplained or uncommon abbreviations — can be tolerated by law professors (“Professors are used to typos and grammar mistakes.”)

Want some proof?

English can be your second language as long as law school exam writing is your first.

Enter D., a law student at Berkeley Law.  She was not born or raised in the United States (I won’t say where she grew up. I can say, confidently, not Mauritius).  She did go to college in the U.S.

D. started KTCOOLS the summer before she started law school.   She finished almost all of the hypos for several subjects before she went to law school.

When I had issue-spotting contests ($20 Starbucks cards as rewards), she won one contest and was runner up in another. (A lot of Starbucks gift cards I gave away…).

She won even though her submissions had some syntax or grammar mistakes that a native English speaker would not make.

But it did not matter.  Her answers were superior to those of other students because she was absolutely fluent in the specific language of law school issue spotting and exam writing.

And her professors evidently felt the same way I did.

I caught up with her after her first semester, and this is what she wrote:

Think about that.

D. did well in her courses — and she had the second best grade in her whole class in torts.

She did better in torts than all but one person in a room full of students born and raised in the United States.

She went to a Vault Top 10 law firm in New York. (Actually, Vault Top 5 firm, but who’s counting?)

D. was prepared, and excelled despite not being a native English speaker.

Your English just needs to be good enough

So, why is law school like this?

(And is this bad news if I am an excellent writer?)

Oooh, another analogy!

Think of the sports ice hockey and water polo.  

Both sports combine a variety of skills, but each has a single prerequisite skill.  

Meaning, there is one skill you have to at least be competent at to play at all:

• You must be able to skate to play ice hockey.
• You must be able to swim to play water polo.

But these skills are just prerequisites to play at all.  

If you are an awesome skater or awesome swimmer, it helps, but it’s not the point of these sports (Aren’t there separate sporting events dedicated to just skating and just swimming, right?)

You only need to swim or skate well enough to score goals:

• Wayne Gretsky, the greatest hockey player ever, was not the fastest skater (or best shot, or biggest, toughest player, for that matter).  He skated well enough.
• Despite having played water polo myself, I can’t name a single famous player.  There is the Hungarian Men’s National Team.  No famous swimmers amongst these players.  Yet these guys swam well enough to win nine (9!!!) Olympic Gold Medals.
• Meanwhile, Michael Phelps — the most decorated swimmer ever — may or may not be a great water polo player.  He might beat everyone else to the ball, but what can he do with it?  Will he score?

It is the same with law school and writing.  Writing is a foundational skill, but not an end in itself:

• You must be able to write to do well in law school.
• But you don’t need to be the best (general) writer in your class to grab all the As.
• You just need to write well enough to show you can spot issues better than everyone else.

That’s it.

Weirdly, some great law students are bad writers.

One other story, in the opposite direction, about an awesome law student who was a terrible writer in other contexts:

I became the Senior Notes Editor of New York University Law Review late in my 2L year.

I had to edit the student notes (academic law review article written by a current law students who are on Law Review) of both 2Ls and 3Ls.

One unnamed 3L was ranked, if memory serves, in the top 10 students in his class (not 10%, top 10, Mitch McDeere style).

He was headed to a super prestigious Second Circuit appellate clerkship. He had attended a top-3 Ivy League college.

And oh, boy could he write well for his law school exams. (His class rank and clerkship showed that he was absolutely awesome at that.)

But when I got his student note, it was . . . at best profoundly confusing.

I had to work with my best editor to untangle the confused 100-page hedgerow of a word-collage, only to ultimately publish a somewhat-less-confusing melange of purported-English-language sentences.

To this day, I STILL do not understand how he did so well in law school.

But he did.  And if the note was a fair sample of his writing, that boy could not write.

But he got As.

To my eternal confusion.

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TL;DR version:  Not-great writers can kill it in law school.

Even non-native-English-speakers can be top law students.

IF they deliberately practice the right thing: law school exam writing and issue spotting.