The Problem at The Bar and Bench

CHAPTER I THE PROBLEM AT THE BAR AND BENCH A. LANGUAGE MASTERY AND LEGAL TRAINING by Irvine M. Menize* Qui novit neque id quod sentit ‘exprinsit perinde est ac $1 nesciret.** VA PROBLEM of long-standing concer which continues to plague legal educators is the inability of law students to use the English Innguage—both the spoken and write ten word—properly and effectively.’ Among the'many law schools, it can probably be stated without fear of contradiction, that there are few law teachers who would deny having been rudely jolted at some time or other at the inability of so many law students to write or express themselves in clear, concise and elegant prose. And yet, at the same time, it is actually difficult to conceive'that an overwhelming majority of the students entering law schoo! athe present time have had a minimum of sixteen yeaa of formal basic schooling. SLB, St Jobals Uoiveity: LLM. Brook Law Shoal iD, University of ‘Cheng Member of the Clore, New ‘York and ‘Uted Sues Supreme Court Bas, 22 Be mo knows but canat express what he knows ia fhe wie ‘anor TP Chict Junice Vanderbilt in his sepore on pelgal eaialion refers to the “weltght ener righ rrptting te “ality flaw stodets to tok Suiaht and to wate ond opedk in clr, fore aacsve Vea Ror, x Bee Slaton, 29 NAD: Ree 99, 30,286 (i330). ‘Ske ao Vandetile The Paswre of Legal Bincaion:. Ween Rice ibe Redes of Modem Ufe, 43 ABA. f07 (i93t)r “To. mention nly the, mot obvious mates, 1 is notorious that many lawyees do ct Site Wetland hat effcve avon are ares athe Ba" Glare, A Facy Opninn, 5 Ye Low Bese 4'(1939). Pt wnld be Seale dat ‘cal stent "who gaat Fors. thi hoc ure Hott feed aad ‘wie “Td not conndet this pbjective to be a modes one; on te sockty Fi oxaeagity amo On Wher de Wrong ib So-Callad Legs Euston, 38, Cola La Tepe 54, 660, (935)* “1 wank ery fa student tobe sble to read and write” af OF my fist year students moore than a third of my second year students can do edn Peps 7 i2 ‘THE GREAT POWER AT THE BAR AND BENCH Empirically, a legal educator of note has poignantly summed up the language deficiency situation in the follow. ing manner; But very, very many of them [embryo counselors at law], are hopelaly, Geplorbly unskilled andinepe'in the use of words t0 say what they mean, or, indeed, to say anything at all. OF the two hundred and twenty-five there have not been more than a doven who write really well, choosing the ape word and saying the thing Hfectively, -- . Once past my dozen, pethaps less than half of the remainder’ are capable of writing a’ simple essay, in English un- adorned, to convey a plain meaning... .. ‘The rest shade off into ‘varying degrees of floundering incoherence, stammering repetition tnd murky confusion of thought? He, then goes,on to say: “Is everything well with an education, when sixteen years of it lead only to utter con- sternation.at the prospect of a little original writing.” And finally, his pointed query: “What is to be done about all this ?™. 1, THE LAW ScHooL's Buxwen ‘That there is a sharp and continuing awareness within the legal teaching profession that a facile and effective command of English, by law students and lawyers, is a vital necessity, cannot be gainsaid> Nearly twenty years ‘go, the dean of a midwestern law school exhibited a then burgeoning awareness of the problem in an. address. de- livered at the joint session of the Section of Legal Educa ie weet widely publicaed comment is that of Colosbie's Dean Warten whee aie Sp at len pale ble al Mrmesltve or esol proce smfly, compehcndapy, snd cetve, Se as Sie a gaan or oe ‘Bat we HR oani tne TOPS our eiog Tavis ower ceil slated Per te thus to the trent vated foe tw sy" Colanlie Om BEEy espe of ibe Dean of oe Schoo! of Lat 38" C939) 7 Be atid de See ls Ween, [Legal Gd 133, 137 (958), xi els n 8 Ent Joa). Sip Roan SE pene of the Commision on PreeedBlscaton, 6 J. Legal Bd 74, totes Wo8sy: tie Asccaion of Aimee Taw” shots ts om Phased the eck for edition tn compretenion aad expremion in words Sih pear: cbegive of pete nic ‘Eingege i he faye woking ol He mut be ble ie the ied SF Egat eeitSchs wy ony lng cel deflect BOSSE SL Rian adeeb take bale ef comic seas ctiningh tad waaay”, What's wcled Gears E SEP URIPLIE Leta ay doh pecs a ‘THE PROBLEM AT THE BAR AND BENCH 5 tion and Admissions to the Bar of the Amerieari Bar’As- sociation and the National Conference of Bar Examiners, when he stated: “There is one lawyer's technique, however, which the law schools should and ean do more to develop. This is the art of writing. We may perhaps place ‘upon the colleges some of the blame for the serious illiter- Tr Bap: sdqutevedbulay, fant ith it Fear occ teed pti oc eo ae 2. Sanctlan cata a ane a al Se ee ey =) ae rae sy meson ed compton ale tee 4 ep se 3. Bhiy of names: waning. meson of ‘wis ii times and contests shades of seaming, inteiprettve|peoblens, 4, ani eo anlposr te Becrencnet of ogee Scaled oki Pinte neo We "a hein Tonite paca eyes set ke Shoup ee srt il re, ee lama Desa? asi been at ee ga ese Sarat Oa he man putea ie We cat i ope nt ee ie ul Oe eat iSasane ee eh Baee 1 cap tee a mahi eof eee elf to book appealing fo he special inerets Re mrs wtay Cath: Nee eaiany alt Batpousd one Ty aying and ming, be capot be cnt sii supecical itch. “A psp ofthe sintnum eens of oe pote sea ene, A gue oe iam ae gee scp ie eng PB cae ee ee a rae Te pl ts in es te ce = inaleg nde, eon, nl at Spl acs Se on alts Reade wid tol Be Hie must also work to-acheve some measure of eloquence and (pace, eae ee lf ol et al Sa he on Sais eee Sool cats estas, tng, speck cmon tae wan a Se al i ae aman ae EAL En, “OS dae eee Seas, fey eight cou in any dept wil seve the ste cbs TR wide ey of sealing leet fom weit sou PRISE Sa te oathtel tsem cea 3 Pt etter ae tae So iat Tonge nepons basen tolependén ted fallsale ny peepee 4 Behe of aden wing, wih empha oo ih ee e “ip ie sine rexoning, «cone dose mk ademately aervethe srudets language occas HE tag ealy fom a atgle ebook, SRE moter spon ed tothe ude soa he doe te4 ‘THE GREAT POWER AT THE BAR AND BENCH acy of law school graduates, but the law schools must accept their share.” Atiother legal educator of note has summed up his con- ception of the problem in the following manner: Qne, thing is certain (and we should freely admit it) lan- Fe Tm ce traci stk ip trade, Thgt i 9 tev ican foal fom a ie anges foto who tn 1p ores 1 deogaty sto aye Exacly so and so what” "One can fear abeur ideas (which ig what law is) and be can only deal ‘with’them through the medium of language. We have neglected ‘emphasizing its importance, and its skillful and exact use, and cer- Ct i tere fly more important in tbe triting Of faye Emphasis aed.) Since then, other legal educators have also exhibited a salutary attitude toward this vital problem, taking a forth- ent stand by inaugurating courses of remedial action in an ilempt to correct this fundamental shortcoming. ‘There is no doubt that law schools have made significant strides in seeking means to eradicate this language deficiency “Bink for himself and express his own ideas if exey questions are ‘Sciiced 10 maltpectoie caminlons which repli silent wing SnD faeaty’catash th sap undeiing and ating scoring? © 1 PMceat io alowed to wate, poorly, becuse the preesor as 90 ecm employed to teach English Fs he cure for te widerpead senility among prcaw tae dong ti jo Eg pve cs i et, eh & SE Betaason iat te espns or teeing ont Lira graduates Seats only prima. withthe, Bog is tncontgveiiy EEE Spey of the cote faculty” See ths, Ser, Eegish Usage fal Spelling ie Low Sebo An periment an Pore Seaton, tt ‘pal Hi. 238" (1958). Foe ¢ secon appraisal ofthe state of Tek composition Se most United Ses sche, sce Tine’ Magasin “Eagish, Wanen Fleze" November 9, 1939, wher i is noted on past 2h tie ute of Ein Compost ot US. hl i dep, ‘Bie olution to the problem Suggest ay Chaeny SF the Btoctnal Testing Service ito get US. students weg ore ‘en an beter Sites What Changes Are Praccal in Formalzed Legal Edacaton, 9 ‘Am. se 8, Ren, 1104, 10h, 1189 C94). + Gest, Wate Bo We arom Herein Leal Bascation, 28 Rocky dis Le Rer 24, 2629 (1950). Ee Growl fori Semitile aw Saket 10. , Lad a 365 Gist) Rusty The Mian Plan! Bait Engh for Le Sinden, BB dea iota (9st). See Mille, On Lege Site 43 Ry Lf. 23% 258 mas (1983):,_ "My. own experience with student writing his been fully as eettening as he [Dean Presers). We low professor mst tach grammar td he a ell we Hn Te Ned Jos Cr aripradence in Lae Sebo, 9 J “19, 290 (1986): “The AB. Ares att ces ek toe poten on tnd the seen 1 Heer sane, Grama, Rostonie, Distesey, Avthmetc, Geomety, Mask Sod ASionoay ‘THE PROBLEM AT THE BAR AND BENCH 3 barrier. One need do no more than peruse any law school catalogue to convince himself that law schools have taken up this important challenge en masse and also, at times, with unique and individual emphasis? In this area of remedial action, some law schools have even gone so far as to point with pride to their legal writing programs by describing them in detail to the law teaching profession. Others have sought to revitalize and improve their legal writing programs to meet the caustic criticism that has been leveled at the law schools, to wit, that law graduates cannot effectively speak or write! Still. others have simply sought to meet the problem head on by setting up a course dealing with English fundamentals within the required law school curriculum. Commendably, law schools have attacked this edueation- al carcinoma with directness of action and intensity of effort, but unfortunately, it seems, with not enough commensurate vision and depth. It is therefore the purpose of this article to attempt ta set forth a program wherehy. language malignancy may be more effectively dealt -with in order to assure greater facility and command on the part of. law students in their daily use of the English language. 9 Many of the Law school catalogues contin statements which emphasize the need for improved Gaining in the use of the English xg, Comell sees that itis of “fist importance” for the lawyer tbe able totes el cay and cogent both, rly nd in ting’ The Uninety of Dennsylvanin catalogue rtalert “An ably co speak sed waite leat and concsly of the Rages pounce. ib Big, sce Kalven, Lew Seboo! Training in Research and Bspostion: The Unisersiy of Chicago Prosram, J. Legal Bd, 107 (1948); Sol Manne, Low Com Legal Writing Program—The Wisconsin Brien, AD [ Legil“Bd 381, (1939); Moreland, Legal Weting and. Research i the Smaller Sobooln, 7 J. Legal Ed. 49" (1934); Roalle and Higenan, Legal Wein end Recht Nebr Unity 9 Ye ag." 195 1 bey Volx, The Legal Problems Coarses at she University of Kansas ity, 7] tag BA. 91 (1954)+ To. meet Use eitclsm that awe. gauates Sit lly sa of wate, we fey wo 9 requre mon cue of S'hadent sad Cetised the coorer in’ legal bibliography” and ia legal fei ted ‘igi, e wtng of earch paper wat made Prt WE, Balen of the University of Denver, Cllege of Law 36 (1937 1939): Sipiroducion. to Legal Weiiag: 1 quartet out. Instruction ia tnmar and talocic; sentence writings the paragraph; the ey; dcion legal (nftsrnshipe” The write is happy to celate tat fa teaching this couse hes hive profited grea. This course has now beea dropped from the fcilalum; ur the weer managed to include large postions of it in the egal Research and Writing course which he teeny ad occasion to teach. ‘The cenction of most sudan was grating.6 ‘THE GREAT POWER AT THE BAR AND BENCH LI. AREAS IN NEED OF MORE EFFECTIVE COMMUNICATION J io) TRAINING. ‘Proféssor Leach has stated that if he were to try to describe a good lawyer in a phrase, he would call him “a proféssional in versatility."® He then goes on to say “th is another’ way'of saying that he has acquired certain abilities: that: enable him’ to operate effectively in any enter- prise; familiat “or unfamiliar, to diagnose its difficulties anid» contribute substantially to the solution of its prob- ems.!4\-1f we agree with Professor Leach’s succinct: and ‘meaningftl deseription of a lawyer, then we must concede that'a lawyer's range and command of language pertaining to his daily dealing with variegated human motives, varied human endeavors and diversely complex problems and their solutions, should be broad and deep, indeed. Of course, not: to be lost sight of is the fact that the penultimate and ultimate end of all law is the quest and attainment of justice—human justice. But human justice, ofttimes, has a penumbral and elusive quality. Operating, in the'grey areas of human affairs and being compounded of many intangible and dusk-tinged ingredients, one is often prone to lose sight of the fact that at times there are also many additional hidden elements lurking beneath the sur- face of a factual situation not entirely exposed to one’s ordinary probing and humanly finite powers of discernment. We may often sense these unknown elements intuitively but our ability to raise them to a visible podium of tangibil- ity or understanding may on occasion elude us. More often. than not, this inability is purely a by-product of lack of lan- sage mastery in its broadest sense, with the result, that the goal we seek—justico—is ultimately thwarted. ‘The writer therefore feels that greater emphasis on expanded language techniques and mastery in the following areas of legailcommunieation, to wit, interviewing, counselling, ad- voeacy, negotiation and drafting, will do much to aid law students to become aware of the importance of language as an indispensable tool of the lawyer in his quest for equitable solutions and the ultimate attainment of justice. SSBB Poe aT tp nea nd 28 ~ OB ‘THE PROBLEM AT THE BAR AND BENCH ’ A. INTERVIEWING For years now, law schools have been concerned primarily with the educational dietary formula of feeding appellate decisions to neophyte, as well as to advanced, law students, This is not said in derogation of the case sys- ‘tem of teaching with its many rich and varied facets of expression. But when viewed realistically, it is well to note that the study of an appellate decision is merely a perusal of an apercue or tail end compendium of a live factual siti tion.® And there are voices being raised in criticism: that the study of law through the dissection of appellate opinions is a Vietorian anachronism.'* Pedagogically, can it be deniéd that there is a great deal of merit in teaching the student something about the case as it starts and then procéeds td evolve in the lawyer's office? For in reality, a ease begins when it is brought into a lawyer's office and the lawyer has to make the initial decision of what to do about it and-how to prod the inert wheels of justice into movement. As Pro- fessor Tasswell has so aptly pointed out, when a ease Has found its way into the office “there is less sterile pedantry about what is or is not the law and a more serious quest for whatever can aid the lawyer to cope with his prob- Jems.”* When this happens, the primary step—the inter view—which demands language utilization and mastery im- 'S See Mille, Prolegomenon 19. Modernized Study of Adminitrative Lew, 12 J. Legel Ed. 33, 94, 37 (1999): "Since the Tangeklfian revoltion tow caching, judicial’ decisis have been considered #4 be the Proper ‘aff Yor pedagosica purposes and for making scientific saalses of the i iit isla bert stagle focused approach Yo a complex problem, ome fuk fas to se eee eae ae et (ec pet rly one vaiety of tee». The particlatiom of Sot steel the dewands Lswpes a rthing an people te making on ewyert today We See Davis, lection of « Law Profesor abontInirasion end Rec seerh te, Dee Admiitntion, $9" daw Bok, See Ree 280 129 a3 (0953); "tad dhe appelite pinion {the hss Gtion. Tegal edition needs bs A that se arated to Higationprblens of what odo intesd of Problems of shoshoulewing problems of chosge among peace Poles, not fate rere in anata! efinements problems favlring the’ Hod of facts that yer must consider fading Dsinesmen, 0% aesey eat summa cpp arate oo pres nied ih bates o pats enol a meiy eemng cas or, Soniving Judeennde Sees Mule The Ipact of Pubié Lao Lap Bleaog, 12 J: Log EL 485 (1980). PW tasselh, The Lawyer of the Fase, 6 Ber Ball. 344 ONY, County Lawyers’ Asin 1999). Sew also Meher, The Tren’ of the Dat and Te Impact on Legal Edveaion, 37 Hays, L Rex: 388 (1944).8 ‘THE GREAT POWER AT THE BAR AND BENCH mediately becomes a most important cog in the machine of justice. ‘Viewing any case once it has found its way into the lawyer's office, it is basic that, the language skill of the attorney—in his role as interviewer throughout the entire history of a ease—will have a definite bearing on its even- tual outcome; for the direct or subtle nuances of the interview can well make or break its final outcome. It is easy to shunt the responsibility for the outcome of a case to the client. But in pointing the finger instead of crook- ing it, it may often be ascertained that many a practitioner tacitly invites failure in his duty to represent his client competently because of, in many instances, his dulled line guistie habits, inadequate command and unskilled use of language in relation to the problem at hand. As Professor Probert has co clearly pointed out: “[oJur language habits have too much dulled our living potentials, have too much. blocked our awareness of what we are and what we are about.” But of course, poor language habits are only one facet of this many-headed monster. Conducting skiliful interview within the framework of the lawyer-client relationship is not an easy task. Aside from the psychological and neuro-psychiatrie aspects of the interview—involving both the conscious and unconscious processes of the psyche in turmoil—the additional variegated factors of the case that the lawyer must contend with are also quite important. But in the final analysis, they are all bottomed on the skillful use of language in interviewing both clients and witnesses and the careful dissection of the language employed in response to the questions asked. For if the interview is skillfully conducted, the real factual prob- Jem—the erux of the case—usually emerges. ‘The solution is| ‘then nat too far behind. 1B. COUNSELLING Without fear of contradiction, it ean be stated that the counselling of clients is probably one of the most important phases of a lawyer’s professional work. For actually, not only is the lawyer a “counsellor-at-law,” but in the broader Probes, Preface Spmposiom on the Language of the Law 9 W. Rep L, Ren, 135. (1958) ‘THE PROBLEM AT THE BAK AND BENCH ° sense, he may be viewed as an omniscient adviser of human beings concerning their multifarious every day social and economic problems. As one practitioner has empirically. observed: “Most lawyers will concede that the problems they, ‘ag counsellors-at-law, encounter in certain fields of law are primarily problems not of law but of human relations,” For lawyers, therefore, to function effectively in their true role as counsellors involves not only a solid grounding in the law, but in addition, psychological insight and, most impor- tantly—a mastery of language and its techniques to assure the merging and proper application of law and insight to the problem at hand. Words are the indispensable tools of the lawyer’s craft. The thoughtful practitioner must know how words work and to what varied use they can be put to assure the client competent advice and judicious guidance. By so doing, the lawyer can contribute his share, as a forthright and sagacious counsellor, to the elevation of the profession and stability of society. Tt is. not without significance that the late Judge Vanderbilt, in speaking of the basie ingredients which are always present in the.work of the counsellor and advocate, has listed six elements, including, as last but not least, the important element of Eng, lish mastery: the assembling and marshalling of facts; the application thereto of the principles of law; dealing swith human nature in a wide variety; giving consideration to the economic, politieal and social environment of each transaction coming up for consideration; reasoning back and forth with respect to all four of these types of material; and the use ‘of understandable and convincing English, both oral and written (Emphasis added.) Piel, Are Lawyers Mising the Boat, 16 Dar Bail, 123 (NY. aun Laer Aas (id). Net lamer wll one ‘atthe Iran ‘eee rel cna, impel sc at cn Un the dary law field but also in the Reld of ciminal aw But many lawyers {i> hot stcopnize tht he tole they ate called on to play in mow of the ‘ther cates they baadle in their Igw offices is likewise in Tacge pat the sole ‘a counelloe not oniy at law Butso in human relations. Almost every tine «lawyer advises» client he is not oly practicing lw he is also, whether he kaows Wor not, practicing prehology.°" Pipe, spre at 134. 3 Vandedilt, The Fare of Legal, Education, 48 ABA. 207, 208 (1957). "See also Llewellyn, The ‘Modern Appraach 10° Conaselling and Adcoctcy Epil in Commercial Transationy 46. Column. Le Rete 16, {5d (id4@): Geek counslors counsel tocay a9. longer. for the saxo blood sgusrzages "Piy have discovered that tht kind ef counsel or of does freot bits back. I oflends say customer whe may read it. Tt oes court. ‘Rod a court cin find ways through or wader acy language you can walt.10 ‘THE GREAT POWER AT THE BAR AND BENCH ©. apvocacy ‘The primary task of the advocate is to persuade the vourt! (ot the administrative tribunal, as the case may be) to'his view of the law and the facts of his client’s cause. Tw out adversary system of jurisprudence, it is the duty of the lawyer" in his role as advocate to convince the court of ‘the justice and fairness which preponderate in his client's favor. He’ must induce the court to believe something so that it will act in accordance with this belief. He must influence by argument, advice, entreaty or expostulation. He mus}/hrevail on and win over a judicial or administrative triftunal to the justice and decency of his cause. Stated in another way, “‘the function of an advocate is not to ascertain the truth; the funetion of an advocate is to present from one side of the ease all that can be usefully and properly’ said, in order that it may be compared with what is presented from the other side of the case, so far as that can be usefully and properly said, and in order that the tribunal may then have before it these competing considerations and may hammer out on which aide the truth really lies." ‘This is no simple task by any means. That a sure command of grammar, rhetoric, diction and nuance are prime prere- quisites is surely beyond gainsay. ‘Therefore, advocacy based upon a facile and persuasive command of English is the advocacy most likely to breed success. D. NEGOTIATION Another of the important skills which should be in every lawyer's equipment bag is the art of negotiation. As Professor Mathews has so pithily indicated: “[S]cavcely ‘a day passes in the life of a busy lawyer without participa- tion to some degree in the process of negotiation.” Lasting ela it on a view of the clint and the other par> ae in some fort a tae tan, “in se or he Wns, and als in finding wap se fee our best fuller Whe she'Lee Sebooll Gon” Combes io he ‘Mating of Lawyer, 1 f- Legal Ed. 189, 201 (194@): “the. hawyer ts toe fomeli e buet In decom tat acon to many facto which leg ies ae ote cay «pa, and someines avery pur’ St Stn, The Voraon of Advocse, 25 Com B. Rev. 153, 160 (2947), 2 Mathews, Negeiaion: A. Pedagogical Challenge, 6 Ju Less’ Ba. 93 (1933). ees ‘THE PROBLEM AT THE BAR AND BENGH uw Like advocacy, negotiation, too, requires persuasion; possibly in a gentler and more delicate form. Negotiation in contractual relations; negotiation in domestic relations; negotiation in labor disputes; negotiation with administ tive tribunals; negotiation in real estate transactions; and negotiation even in such activities as seeking continuances, adjournments and stipulated adjustments of all types of preliminary or minor matters. These are only some of the areas in which this important function of a lawyer's daily activity takes place Basically, as Professor Mathews has pointed out, “negotiation may be tentatively described, then, as a process of adjustment of existing differences, with a view to the estab- lishment of a mutually more desirable legal relation by means of barter and compromise of legal rights and duties and of economic, psychological, social and other interests.”” Fundamentally, negotiation is a delicate art which brings into play numerous personal skills and insights such as “personal behavior in terms of poise, assurance and mobil- ity, all conveyed (or not) by voice and manner.”™ ‘Essen+ tially, therefore, sound mastery of English is a solid base upon which all mannér of skill in the art of negotiation’is bottomed. For ultimately, in the area of negotiation, thie gontle persuasive qualities engendered by previse aiid‘ ef= fective English will leave their successful mark, E, DRAFTING It must be conceded that the drafting of legal instei- ments is a most important and major part of a lawyer's: professional activity. As one appellate court tersely stated: The practic of the law . . . embraces much more than the co duct of itgation, ‘The greater, more respontible and delicate part ofa lawyers wotk isin the other cretion. Defting instrument, resting tose, formulating contacts, driwing will and eget vos ice Iapwlecge an powet of apa a te tot, ese employments, mere ail in He alias whens taal Git aed’ nar sour chee preell feninst profound knowledge of the law, is a relatively wnimpor- tant part of lawyers work Bid, at 94, Id. 38 56 2% People vs Title Gasranty & Trust Co,, 189 App. Div. 648, 650, 168 NY. Supp. 278, 280-81 (1917).2 [THE GREAT POWER AT THE BAK AND BENCH ‘Legal draftemanship is basically concerned with words —or:more broadly, with language technique. But words, ‘as the:very marrow of language, must be known and thor- oughly understood when it is sought to state facts accurate- ly and communicate ideas precisely. In the words of Jus- tice Holmes, “A word is the skin of a thought.” In analyzing the relative importance of words, it is important to remember that words are as much a part of the subject matter as the actual knowledge of things Which is to take precedence as far as the relative importance is concerned was summed up by Erasmus when he said: “Cos- nito Verborum prior est, Cognito Rerum portior est.” Un- Goubtedly, said Erasmus, “The knowledge of things is more potent,” but, said he, “the knowledge of words, of terms, of sentences, of arrangement is prior”; at least, we may say, so far as the art of legal draftsmanship is concerned. IIL, REMEDIAL LANGUAGE SUGGESTIONS IE it be conceded that precise, persuasive and elegant English is a lawyer's basic working tool, then it should necessarily follow that it is the duty of law schools to as~ Sume a more responsible proportion of the burden of sce- ing to it that the embryonic lawyer goes forth equipped with this important linguistic tool of his craft. Further- more, it should also be one of the primary functions of law schools to oversee that the tool be kept in proper working order right through the law student’s professional training. While law schools have made sincere efforts along. these lines, the writer feels that the programs and methods used have not been commensurate or extensive enough to meet the need. The following suggestions are therefore being offered in the ‘hope that they may prove of value in fostering a more adequate command of English among law students which, it is hoped, will be carried over into their professional lives. A. AN ENGUSH PROGRAM IN LAW SCHOOL First, rhetoric and grammar should be made requixed courses in the law school curriculum. Furthermore, they. should be taught either separately or together as found best Ts May, Inrdaction to an Ensy om te ot embstiin Commonly Cod Batting, 3 2". Ran s26 (fang, Com ‘THE PROBLEM AT THE BAR AND BENCH B froma pedagogical point of view, at least once during each ‘year of law school training. The teaching of these courses should not be viewed as a perfunctory chore, but rather as fa vital cogt in the machine of professional education. - Skilled instructors of English should be sought and retainedas full- time teachers of the law faculty quite similar to economists and sociologists who now compliment many law school fac~ lulties, Of course, the ideal teacher for such a program would be one who has majored in English in his undergraduate work and who is also a law school graduate. Law teachers with a gift for the teaching of language in all of its ramifications should be utilized. ‘Second, the importance of these language courses should be explained to the students; especially directed to those Aoubters who might be inclined to feel that law schools are relegating themselves to the lowest rung of professional stature by indulging in the teaching of bare-bone English fundamentals. Historical orientation should be gone into, Tat the student be made aware of the fact that it was the feeling ‘of the humanist lawyer of the Renaissance era—dedicated scholars of lofty ideals—that for the study of civil) law, Sno would fist be required (0 be a eapable grammarian in the broadest conse, Let the student understand that the humanists, seeking to be leaders of society through wisdor te aloquenee, gave. preferred position in education to sue subjects as grammar, dialectics and rhetoric. ‘They believed that only through training as grammarians in the vast elas- sical literatures of Greece and Rome, came wisdom. They Fasthenmore beloved that this wisdom was no Devate Dos- seer it belonged to soclety, and it could be given to 80- ioty by themselves as wise counsellors beenme eloquent men. Bletuence, they felt, came from nature and norture and future embodied training in dialectics and in rhetoric, They ‘maintained that dialectics taught one how to speak ac- curately and with emphatic insight on any specific subject. estes provided an armory for attack and a moat for de- case ty the humanist lawyer rhetoric was the vertex: er oth grammar and daleties viewed rhetoric as the em mont and fulfiliment of this happy merger. To the aeaat lawyer, Thetadie was the art whereby the lawyer“4 ‘THE GREAT POWER AT THE BAR AND BENCH conldexptes himself with such clsty as to be tify un. derstood; with such elegance that he never lost his hear- erspand with such persuasiveness that the judge would be led t0 actin-accortiance with the: advocate’s wisdom. Ac- cordingly; ifthe student understands the pointed historical impact of language study as a'viable and vital factor in his legalotraining, there is good reason to believe that all his former doubts as to the importance of broad language training will be eradicated” ‘Third, in’ order to foster greater breadth and depth in thinking, speaking and writing in law students so that they may emerge more adequately trained for courageous leadership and the formulation of sound public policy for- mulae* a program of classical and humanistic studies be set up, as a required segment of legal education to run through. the entire three years of the students’ professional education. Breadth and depth in thinking should be stressed as an aid in dealing more soundly with legal problems. This ix in keeping with Dean CGriswold’s jndieions observation that “lawyers could do an even better job than they are now doing if they had a broader education in law school”? Or, as part of required courses in Jurisprudence which, too, should run through the entire three-year pe- riod of legal training—™ the rhetorical as well as the historical and legal aspects of the courses should be stressed, Important thinkers who have influenced Western legal thought from Plato, Cicero and St. Augustine down through more modern’ writers, Kant, Savigny, Spengler, Cairns and Kelen, to mention only a few, could be dwelt upon to gooil advantage from the jurispradential as well as the 7 Besos, Renate Henan und the Roman Lat, 38 Ore. Ren 2 ey Mtoe 2 towel , Legal Edecaion and Pale Poliy Tunings the Bae beeen, a ae eh as oye say ant Rate Hg he Nod ors Conte's Jatiadees i 7. ast "Se ss Hogan, The Need for « Conse Ta Jartpadece in Lat Sebold Leael B10 (1950). - Sno a‘rapifction of Ws view, see Ray, The New, Curiam st Souther Metbodit Univertiy, 3 Je Legal BA M951 (951). where callin fouise in js fiven to ft year sens OF emus, it ould be lng te prop ds ah Soe son fe nts ‘Vere able fo dvell on Ge grammatical, ditovcdl and eter linguistic Fess the cay, Syn if iy freak an avareps of ee tpee in I tion ain 0 fae iii ew ace ip Bales febine Jones one we School 97. Legd 4s RIVERA. ‘THE PROBLEM AT THE BAR AND BENCH 6 rhetorical point of view. In this way, the student would be constantly brought into direct contact not only with. the legal and historical factors of his studies but also with the importance of the thought ideas as well as the linguistic factors as gleaned from these authors. ‘And last, as part of this overall program in the area of language and communication, courses such as semanties ‘and phycholinguisties should also be given as part and pareel of the regular law school curriculum; even at the expense of removing some of the so-called legal courses. Students should be introduced to what William James has referred to as the important area of “anverbalized life,” which he said is, at times more of a revealer of human nature and the processes of the psyche than our dulled habits of word usage are capable of communicating. Students should be taught to peer behind words to the realities that words are tased to symbolizes Zor language has inescapable limitations" For actually, language at its best is still an inadequate strament to convey the many-hned ahadings of meaning hit one may seek to convey. There are countless moods, and feelings which elude verbal expression. Nevertheless, it would seem that a great deal can, be done toward bridging the gap between feeling, thought and verbalism by developing within the student -a:sense of “poetic” writing in order to gain insight into the world of unverbalized feeling and thought. Monta{giie, “fmerson, Shakespeare, Milton and Marcus Aurelius are only.a, very few of the many greats into whose company students should ie invited, even if only on limited cesasions throigibit their entire law school training. Seminars’ to, stretch ‘afd lubricate the mental arteries which have becotie narrowed by specialized legal thinking should be initiated at Teast ‘once throughout each law school year. As Oliver Wendell ‘Holmes once remarked: “A man’s mind stretthed bya new idea can never go back to its original dimensiotis”. “Above all, let us feel that we are working toward the! goal of pit TTS Fk, Boh Bh pln thy Middle 196 ga Ran 8 aga ei hata es hl ee pe se a Ae Ma, SR "Tale Te Pleo 9G len het adits in tuk. fade Sh ODN ee Ser gs, tl a osngs Town6 ‘THE GREAT POWER AT THE BAR AND BENCH ducing not: only a competent lawyer, but also a truly cul- tivated human being. ‘In ‘stressing the’ importance of breadth and depth in ‘uiigtiaige and in thought, two eminent legal educators have very aptly pointed up the problem in the following manner: seagctbe yet, it must be recalled, is 4 member of a learned proféssion—of a skill group which has the temerity to make a Brofesio'of tendering advice to others. Te is his responsibility tovacquaine himself not only with what the learned have thought, and: with’ the historical crends of his time, but also with the long. ‘erm, interests of all whom he serves and, the appropriate’ means of securing such interests, .... We submit that adequate train. {ng most thefore inde experiences that al the developing swyet tO acquire certain skills of thought: goal-thinking, trend- thinking and’ sdestife inking. "The lawyers sede storehouse of learsing is already soo tightly stuffed with l from the past to be thotoughly mastered by any one in a lifetime of devoted scholarship; a student must, if he is not to choke on tral have exis criteria of relevance” ‘Thete comes tine, 1s Mr. Justice Holmes long ago remarked, when energy can be more er ee, eg es ema abe ‘May not this energy that Justice Holmes speaks of be more profitably utilized by the law student in reading, discussing and writing about classic and humanistic thinking and writ. ing as a means of broadening and deepening his mastery of language and thought? B. HOW To Frr IMPORTANT NEW COURSES INTO A LAW SCHOOL CURRICULUM Of course, it might be conceded that the study of gram- ‘mar, rhetoric and the classics within a law school curriculum, ig desirable and possibly even appropriate. But, it might be asked, how cam such broadening studies be fitted into an already tight and plethoric law school curriculum? The answers will not be too difficult to find if we realize that there are growing indications that legal education is, slowly bogging down in a quagmire of minutiae. The broad pattern of the forest is slowly being lost sight of for the myriad trees, proliferating branches and the countless shim- meting leaves. There is a continual process of adding new courses without, at times, any elimination or reduction of 8 Leswell & MeDougal, rufre note 28 at fi1-12, 215416, ‘THE PROBLEM AT THE BAR AND BENCH 7 the old. Possibly, reconsidered thinking in this area is necessary. Professor Llewellyn has observed that too many case book editors have assumed the obligation of attempting to cover every aspect of their field, which under normal conditions would call for three times the time available.® There are also indications that at times legal educators have lost sight of the fact that law echools cannot—nor is it their duty to—turn out finished practitioners in tree years. Recognizing the needless proliferation of new courses ‘and the expansion of old courses, Professor , Weihofen sounded an alarm more than fifteen years ago when he said, “Even without the spur of war conditions: the law schools face a situation which demands a streamlining of the curriculum.” In dwelling upon the problem of-eourse expansion versus educational economy, Professor Welhofen indicated that ‘there would seem to be room for careful in auiry into the question of how much case material is necessary for mastery of a given legal principle or coneept} [and] whether law students do not overlearn certain, cepts such as ‘consideration,’ ‘negligence,’ ‘seope, of em! ployment’ and ‘substantive due process’; « . .”. Wlewclyn, On she Frotlom of Tearing Prise Lie, 34 Bir, Le wn 115 9a. Fer Takei, The Micon of Law Geren 27 NEUE 20525 099. 7 2 wrtaen, Ldncion for Law Toatrs, 48 Célh, L\Rep 4B, 57 (90) Se ee Coat, Lee Eacaion Some ditions 28 See a ta tones Gt Thee i tention to at, Tiaty ty allag + fourth ene to tke ese of the ew lagal material ee cehenion which wnat be tested, for we could not de with al whenade Suet inthe ofl way evr 1 we em om tnd aed «Ht ot ‘rea tthe ew schol cusscaum, “I care the eling of tac on Jt deal beach who sls ail we lay teaches lear ow’ 2 Se Set mot fom ou cnc, we shoul i of staring the essa of fu seal of lengthening if fae es» 1 OEE SRNR ea at of aeyelopmest in-out plsneing and tacking. hey Se SgRenel by thee word Eooonp, Varey, and Dep een Map aoe Seat 150. Compare Cain, Caer of Ce nuts USE). C388 Pale). wth Simpson Cates ow Conrats O986) (351 ett? nacre Paved’ s wecherof Contac be coir res PHB ir fst cone to wo Senpson’s eso ited of Cota’? ‘Flt te efices compare ook, Caer ov Exsiy COMB) (1192) Bess, Disa tche ae en Egty (0999) (051 poe; compere Salen, se ex ageney (1998) (002 pape), wtb Seavey B Hal, Catron Ageney (936) sy18 ‘THE GREAT POWER AT THE BAR AND BENCH ‘More recently, another eminent legal educator has also stressed the need for a reorganization of present day legal education in the direction of consolidating and simplifying the entire curriculum structure.” This may well be the ansier to this difficult problem of making room for relative- I important new courses; especially, where the need for including and stressing fundamental legal tools—such as lan _ghlige mastery as a basie and indispensable element of sound legal education—is most urgent. ‘The process of combining or consolidating courses as a ‘miéahis of streamlining a curriculum and cutting across nar~ row and restricted course lines is not a new concept, albeit, a rather excellent one* Unfortunately, not enough has been done along these lines; although word does come through from time to time that there are those pioneering W See Griswold, Law Schools and Human Relations, 1955. Wrath, WL. 217, 22950: "One thing, # seme 1 ie, i cleat about len ec” tion. Te 15 tpiag to do too mnch already." ; Clearly, though, the fact it at that fiw teachers ‘Of new materiale aod new approaches: “itis no longer posible for student to low all the Inv. Nor ie ft cither necessary or desrable, The colleges have faced a smilae problem and fave evolved workable solution in terms of general education. “Perhaps we feed Some of the general eduction apprcach ithe law school, Whit would fappen if balf ai much time. were fpent ‘on negligence == or undisclosed Delocple? "Stadenes would of course know ‘tat thee thing? exis. They ‘have their mins sharpened on some aspects of these problems. But ‘we may be, I feag tying to pump too much minutiae nko ose stalots for their own food. We might be able to give them what they realy need with broader stakes, and with lese da A "eiye’s edattion ie never done, If we prepare our students 20 that they aztable'to tale any problem that comer slong, working tout |p detail when they need to do so, we may accomplish more for thee, and fe soca ten He ity oe tem alle dey cen So Griswold, Law Scboolr Wind the ‘Lopal™ Profession, 7. I. 303, S1ict2_ (1935); ""Te-may well be thatthe developments fa the legal ete tien of stadents hive gone ac enough, if not too fa, We may sow be too speck concerned inthe lw ecole, with dei, with cova al ok the rounds «The law schois should remember soe. deat tht they do ‘ot need’ to teach thelr students all the law, What the students shouldbe taupe is the background, the spit, the tations, the methods —~ how 10 dial with uestlonr, how 10 make themeelves expert on ‘new quetions ina relatgey short tine” Wheelie, Cainer, What makes « Law School Great, 1956 Ud. IP. 270, 271; Wileht, The. Univerity Lae Seboolie? J. Legal Bde 405, 41617 (349) ‘THE PROBLEM AT THE BAR AND BENCH 19 and foresighted legal pedagogues who do see merit in ‘its theory and practice.” In some schools, as a further means of curticulim streamlining, certain subjects have already been eliminated as separate courses and have now been dovetailed in part into other courses.” This is also a salutary and: helpful measure to permit the inclusion of relatively important and new subjects within an ever-evolving and changing cuts calum framework. Overhauling, reorganizing and streamlining the law school curriculum are important facets of 1a sil: bal cational planning. There is much that still ean be done in this area. ‘The writer has no doubts that much will be done in the not too distant future if law schools are toikeep. pace with our ever-changing and expanding soclal and economic pattems and structures wv TV. Conctusion asin wed Language is the marrow of the law. “As stich] itehéule be tauigit on equal parity with all other so-cilled important legal subjects. In its broadest sense, it shotfld Be ‘Hab a part of the regular law school curriculum.” Ani?” ev more, it should be continued as an endless proves Uf'1egal edueation: from the time the student commeticés nis eed ‘training up until he retires from active practice. Pro- phetically, a noted jurist and legal educator hias stmmed up ‘he importance of language to the legal profession in the iollowing manner: Te is the lawyer's business to master wordss the tisk hat the law rons is that they. may master him. If they do; and. 10 the extent that they do, the law will fal to ranslate into action the ideals of the comminity. "All aspects of the process of eon. munication are vital to the lawyer and to the law. Awarenesd Sea ce, Pout, An Experiment Cousin Wroner Teun A rasa, 10 J Lepal bd 497.508, (1958). a elaten fo protenioaat {finn he! clas of a nal i eS aea ikea agh, Triads 0 cal de suden’s cnught bre facie {sch and Brees ovral poly. "Now's th faa Seta She lel ag for hate Sn ad Sith eats Heaefes, Salad" See se Co Cots sad or Shoals Be MG Dede sr diss) : wo Secs Cobb, Te Boling. Christan — A Ditadee} Cae rela Chase the tery of icin 1h, ined BSH Oo:20 THE GREAT POWER AT THE BAR AND BENCH and absorption of new depths of understanding must begin early and must be continuous if they are to have a real impact! May not, the object of legal education be better served by giving language its proper place within the law scnool cur- iculum? : Schack, Foreword 10 she Language of the Law, 9°W. Res. La Rev 117-958) “Adapted from VILLANOVA LAW REVIEW, 6201 (I9@-i981), with peimlssion thru the Editoria-Chief 1B. LANGUAGE MASTERY AND TEGAL TRAINING by Donatp P. CUSHMAN and JOHN M. CALt, JR. IRVING M. MEHLER, Professor of Law at the University of Denver, in the Winter, 1960-61, issue of the Villanova Law Review states: “Among the many law schools, it can probably be stated without fear of contradiction, that there are few law teachers who would deny having been rudely jolted at some time or other at the inability of so many law students to write or express themselves in clear, concise and elegant prose.”' ‘The purpose of this article is to indicate in a general fashion the depth of this problem. The specific purpose of this paper is to suggest the direc tion in which a solution to this problem may be found, ‘The Problem “The unsolved problems of legal education are legion”, said Chief Justice Arthur T. Vanderbilt? But to a member of the legal profession, one problem rises above all others. A decline has been recognized in the ability of legal ad- ‘Yocates to communicate. ‘This decline has caused attention to be focused on the inability of law students to write and speak in clear, forceful English. Although a few law schools have attempted to correct the problem, the problem persists. T Mehler, Lenguage Mastery and Legal Training, 6 Vil. L. er. 201 19603961). (OG Vaadibl,: General Bluction aad Lewatraining in the Mebing of « Geet Layer, 38 Gof dec Coleget BAN ECS). ‘THE PROBLEM AT THE BAR AND BENCH a A Decline in Advocacy Recognized Lloyd Paul Stryker, famous counsel in the Alger Hiss trial, states, “The art of advocacy of late years has been declining.”® Supporting Stryker’s appraisal of the situtfon are a number of well-known judges, legal educators and attorneys. Frederick van Pelt Bryan, judge of the United States District Court for the Southern District of New York, suggests: “The decline in the techniques of the art is, mani- fest in many ways. Fewer and fewer lawyers seem able to select and isolate the issues in a case and present them clearly and forcefully. Frederick Bernays Wiener, a prominent member of the District of Columbia Bar, complains: Even after making due allowance for the frailties of mankind, amazing how few good arguments are presented and heard, even int the highese stare and federal ibunals. Within the year 1 have been told by a justice of the Supreme Court of the United States that 4 jut of 5 arguments to which he must listen are not good. And judges of other appellate courts give me no reason to suppose that the percentage of good argument is perceptibly higher elsewhere? Chief Justice Vanderbilt wrote: “I doubt that you will be able to find a speech or an article by a judge or a lawyer on the shortcomings of legal education that does not condemn our graduates for their inability to write and speak simple English.” Supporting the observation that deficiencies exist in the skills of advocacy, a number of law journals published articles by legal educators and attorneys pleading for cor- rective measures BREE he pre drones 36 (934 Baan, Arr of cdsocacy tir Rise and Pal, 14 Bar Ball, 144 (1957), 5 Wheney Oral Adgoaty_ 62 Here. L- Rev.'s6 (i9ua)e 6 Vanderbilt. ee sie at 252 rousntigy Te Aruna of ox pred 39 Crm LO. 40 andy cughein, TBe Argument of at Appel in ie Con o aS Fon fa nes SIS), “Bermaan he Brofesto of Tat Adverse 2) Ie, Coun’ J, 262 (1960); Giilnan, ‘Shosld Let Schools Pach eit Techniques, 13 J, Legal Ba, 208 (0960). The’ lak ale contains iicatay of atest recommend praca wsning in: Sook2 ‘THE GREAT POWER AT THE BAR AND BENCH Students’ Inability To Use Effective English Concern for the inability of Jaw students to write and speak, effective English prompted.a number of studies designed, to,examine the problem. ,.In 1949, Arthur T. Van- sexbill, then Dean of the New, York University Law School, enlisted the services of eighty-one law schools and collected data on 24189 of the 30,190 law students registered in thelr schools." This study focused attention upon the “Well-nith universal criticism respecting the inability of law students to think straight’ and write and speak in leary“foreeftil English.” In 1962 Professor Mehler submitted: “A problem of long-standing concern which continues to plague legal educators is the inability of law students to use the English Janguage.” Studies conducted by various organizations in 1953, 1955, 1958, 1959, 1960, and in 1961 serve as additional evidence of Mr. Mehler’s statement.”° Profesor Bernard C. Gavit, Dean Emeritus of the School of Law at Indiana University, pinpoints the im- Dortance of language to the attorney: One thing is certain (and we should Srely admit it) language is a lawyers principal stock in trade. . .. One can only leamm about ideas (which i i wht lw) ard Can oly de withthe though the medium of language. We have neglected emphasizing its im portance and oll nd enn uot and ceedaiy fe mates are finally, more important in the training of a lawyer. “The legal profession”, states Judge Bryan; “may be divided into three branches. First there are the scholars ‘of the law, whg develop and teach its theory and philos- ophy. - . . The second branch has as its primary function -. . to advise clients, to apply preventive legal medicine ‘to their problems, and to work out the legal framework within which an individual or a business may function in oustin, Porter & Duncan, The American Lawyer 189 (1938). 8 Vanderbt, A Report ow Prelegel Education, 29 NOL. Bem, 246 (3950), ‘ 1 Mehl, of cin, supra aote 1 at 201. See also the Report of she Commision ow ‘Prelogal Bincation in the j. Legal Bd. for cach of the 7 "Sant Whore Do We Go from Here jn Let Binion? 25 Rely Mi 1, Ben 28. (3950). # ‘THE PROBLEM AT THE BAR AND BENCH 8 & complex industrial society. . . . The third branch, . . . nd the branch which is in a sense the culmination of the whole is the profession of the advocate."" W. Paul Gorm: ley, Assistant Professor of Law at the Chicago-Kent Col- loge of Law states, “Regardless of specialization, it is probably apparent to members of the legal profession that ‘the most important single tool used by a lawyer ‘is’ syn bolic language. . . . A moment's reflection will: indicate ‘that even though a courtroom lawyer, corporation eounel, government attorney or office lawyer spends’ considerable time in employing the written language, most of the'daily. functions of a lawyer depend upon effective. speech." Another legal educator of note has summed up the problem in the following manner: “But very, very many of them [embryo counselors-at-law] are hopelessly, di plorably unskilled and inept in the use of words to ‘say what they mean, or, indeed, to say anything at all.” Law Journals, once again, reflect the growing concer for re ‘medial action in tha area of communication. Educators Attempt To Deal with the Problems Law schools are not completely unaware. of the, prob Jem. In the past three years a number of law, echoals have made significant strides in dealing ‘with. student deficiencies in the areas of written and oral commiinica- tion. Two practices aimed at improving comimiiication are included in some curricula, First, there is briet, writ. ing and oral argument, and second, trial practice and moot court. Some law schools point with pride to their legal writing program by deseribing it in detail to the law profession. While cach of these courses is tmquéstionably valuable, their nature in the legal curriculum points to two important weaknesses, First, in many schools these (9c ON Lat Nath fis Communi 61 ABA 3 "peo, Eli Stet Woe J abi ios, Lee Schon Bj. Lead! BL 361 C1955). Rae etd Wag” Bogs ia ihe La School, co. Lo Sobel Rove 9 Nona “Low Cor teed Wrting Brotng-Eie Wise fege a C9a ‘THE GREAT POWER AT THE BAR AND BENCH courses are merely electives; students are not required to take, them... Second, and far more important, is that in both: courses heavy emphasis is placed upon comprehension of the law and writing logical briefs, leaving persuasion and delivery in an unimportant role. And even the small bit of oral work. entailed is likely to be guided by an in- structor moro competent in written construction than in ‘oral composition -and delivery. However, the majority of law schools reflect the attitude of Dean Vanderbilt when he commented: “We do not have time to train them [law students] in the arts of investigation, reasoning and expression. . . In recognition of this continuing problem, the As- sociation of American Law Schools in its annual reports from 1952 through 1968 presents a plea for the development of skills fundamental to communication in a student's prelegal education. ‘These ave education for: (1) comprehension and expression in words; (2) a critical under standing of human institutions and values: and (3) creative power in thinking.” For the purpose of this study it will be useful to explore in detail areas one and three of the above statement. Education for Comprehension and Expression in Words ‘The purpose here is to gain both perception and skill in the English language, What is needed, therefore, is the skill which can be obtained only through practice in: 1. Expressidn: adequate vocabulary, familiarity with modern usage, grammatical correctness, organized presentation, conciseness and clarity of statement in writing and speaking. 2. Comprehension: concentration and effective recol- lection in reading and listening, perception of meaning conveyed by verbal symbols. Vandel, The Mission of @ Lew Center, 27 NULL, Rev. 24 (0952). Piss Me tet Blenion oA Sitement Pay by The Aton of damier toe eb | ays PT ‘THE PROBLEM AT THE BAR AND BENCH. 2 Both expression and comprehension also. require developed sensitivity to: 3. Fluidity of language: varying meanings of words jin different times and contexts, shades of meaning, interpretative problems, hazards in the use of ambiguous terms. 4. Deceptiveness of language: emotionally charged words, eatch phrases, hidden meanings of words, empty generalizations.’ Education for Creative Power in Thinking ‘The purpose here is to develop a power to think clearly, carefully and independently. Creative power in thinking requires the development of skill in: 1. Research: awareness of sources and types of ma- torial, adaptation te particular use, methods of presenting facts. Fact completeness: willingness to recognize all facts, avoidance of preconception and fiction mas- querading as fact, disciplined ability to ‘withhold judgment until all facts are in. 3, Fact differentiation: relevance of facts to particular issues, varying importance of different facts, rel. ative persuasiveness of various facts. 4. Yact marshalling: reduction of masses of facts to vanageab proportions, arrangement of facts. in ogical and convineing order. 5, Deductive reasoning: use of the syllogism, spot- ‘ting logieal fallacies, avoiding conclusions flowing from inaccurate premises. 6. Inductive reasoning: experimental methodology, sie- curacy of observation, elimination of variables, role of hypotheses, conditions essential to valid genéral- ization such as adequacy of sampling, strict limitation of conclusions by available reliable data, id wt 45,26 ‘THE GREAT POWER AT THE BAR AND BENCH 7. Reasoning by analogy: methods of classification, graduations of relationship, finding resemblances which justify inferences of similarity. 8. Critical analysis: disciplined skepticism in approach, thoroughness of inquiry, keenness of mind in cutting through to essentials. 9: Constructive synthesis: systematic formulation of principles, meaningful organization of ideas, struc- tural relationship of concepts. 10. Power of decision: resolution of discoverable issues in the light of short- and ‘long-term ends found preferable on explicitly identified and justified ‘grounds. The association concludes its discussion of prelegal edueation by stating that the development of such skills is not the monopoly of any department or division, and therefore no particular courses are required by prelaw students” Problem Persisis Despite an awareness of the problem and despite the formulation of reform measures, recent studies by speech and legal educators indicate that the problem persists. A review of recent research in the field of speech reveals that in 1955 Donald E. Williams conduetd a poll of thirty- seven law schools and 141 colloges offering undergraduate prelegal training in an attempt to ascertain the attitude of legal educators toward courses in group discussion and argumentation. ‘The respondents indicated that 95 per cent favored training in group discussion. All respondents, save one, favored training in argumentation. Yet, no systematic plan was offered for the study of these sub- Jects. The reason offered for the lack of systematic study in discussion and argumentation was the absence of a specific demand for such training from the law schools A statistical and analytical report in 1958 based on 136 completed questionnaires’ and on inspection of 160 law Ba. & 67, Pie 2 Wales, Group Disauion nd Areomntion in Let! Bacto, At Quarterly J. of Speech 397 (1953). eae i ‘THE PROBLEM AT THE BAR AND BENCH a schools reveals that no particular prelegal subjects areire- quired. ‘ James MeBath, Assistant Professor of Speech at’ the University of Southern California, in 1960 polled 176 at- tomeys in the metropolitan Los Angeles area to determine the contribution of speech training to the legal .profession. This survey discloses that, “78 per cent agreed that public speaking and/or debate should be required in the pre-law eurrieulum."® : ‘A survey conducted in January of 1964 at Canisius Colloge sought to measure objectively current curriculum trends in pre-legal and law school education. A question- naire was sent to each of the law school approved by the ‘American Bar Association. Of the 180 questionnaiges mailed, 109 or 84 per cont were returned. The results’ f the survey disclosed that no particular prelegal: subjects are required. However, several law schools provide ‘lit fof recommended prelegal courses. Those mentioned: most ‘frequenlly were: Dnglish (6096), history (68%), polifien! science (47%), economies (86%), accounting (38%); phi- osophy (82%), social science (22%), mathematics: (20%), logic, physical’ science and psychology (18%)/ !speech (16%), and biology (119%). When respondents were asked if public speaking, argumentation, or discussion shouldbe required or recommended in a student's prelégal education, only 8 to 5 per cent checked “required”, while 87 per eerit checked “recommended.” The data further revealed that 80 per cent of the respondents require law students: to take courses in brief writing and that 75 per cont of the schools require their students to take some form of oral argument" While law schools are reluctant to require specific prelegal courses in communisation snd are divided in-recom- ‘mending a preference for Englis': and-spéech, current research in the area of legal education indicates that prelaw students have made little progress in achieving improved B Nicholson The Law Schools of the Usted Sutes 25° (1959): 2B Mba Br he anihory ace grateful to Canisiae College fo its coéperation in the collection of dats.8 ‘THE GREAT POWER AT THE BAR AND BENCH communication skills. A special meeting of the Council of the Section of Legal Education of the American Bar As- sociation in May of 1961 reports: “Too few lawyers had Mastered the oral and written intricacies of language.” sity Law School in May of 1961 said, “Tt is becoming increasingly apparent to legal educators that many students entering our schools are seriously handicapped in their studies by inadequate preparation in the use of the English language” —Sup- porting the American Bar Association and Dean Gutman’s appraisal of the situation is Carl McGowan, now a judge of the United States Court of Appeals for the District of Columbia Circuit, who stated in September, 1961: "The law schools as well as engineering schools are increasing. ly,in despair over the inability of their students to express themselves clearly.”"” Studies previously cited in 1953, 1955, 1958, 1959, 1960 and in 1961 serve as additional evi. dence in support of Judge MeGowan's statement.2* A discrepancy exists, therefore, between what is thought educationally appropriale and what is actually practiced, ‘The law schools are asking for the prelaw students to obtain skills in the use of the English language as undergraduates. The undergraduate colleges are offering training in these skills, but law students are not being required to take such courses. This situation is compound ed by the failure of law schools and the organizations within the legal profession to prescribe the specific courses for a prelegal curriculum. Thus the erux of the problem here considered comes to an apparent impasse, Interest- ingly enough, certain responsible groups have suggested a solution designed to improve the students’ ability to communicate. Professor Gormley suggests, “The obvious solution is for the law school and the bar association to offer more formal instruction in oral communication.” Such educators as Irving M. Mehler, Judge Bryan, Bernard ©. Gavit and Dean William L. Prosser recommend that i oa well, Law ar a Liberal Ars, Usiverity of Chicago Law Center 1961 i. Y. Times, May 26, 1961, page 55, ‘Lawyers and the Uses of Language, 47 ABAJ. 698 196i). 0D sees ob, cg te ote 1 » Gorm pth pn ae 13 a 344 ‘THE PROBLEM AT THE BAR AND BENCH » vhetorie and grammar be made required courses in the law school curriculum.” Supporting such a solution was a 1959 conference on legal education which concluded: “Law Schools . . . must teach the student to apply to the law the ability to communicate... . ae In summary, a decline has been recognized in the ability of lawyers and law students to “think straight and write and speak in clear forceful English.” Legal eduea- tors, although aware of the problem, are having difficulty deciding on the proper measures, even though a reasonable solution has been proposed. Malet, oF; cits tbe ote 10 at 2175 Bryan op, cb. care ote 4 ac sua roe iby NB eth Sete iw Lat Sool, 18). Eagad oe ihe Law Schols Look Abad: 1959 Conference on Lega! Biscaion 6 (199) Sr Sassen, over & Duncan, op. ct, inp nate 8 at 189. “Adapted from AMERICAN BAK ASSOCIATION JOURNAL, 51:70 (1965), with permision then the Exective Editor ©. LAWYERS AND THE USES OF LANGUAGE by CaRL McGowAN of the Illinois Bar (Chicago) AS LAWYERS, we make our living each day by the use ‘of words, but perhaps this very fact causes us’ to. think too little about the ways in which we use them. An ine telligent observer standing outside the legal profession may well be better situated than anyone within it to appraise the current state of health of the use by lawyers of the English language. ‘This last thought came to me when, a few months ago, I was reading a book by Jacques Barzun, the always stimulating Dean of Faculties and Provost of Columbia University. Called The House of Intellect, the book was not concerned with lawyers as such, nor even with the condition of the rhetorical and literary arts apart from other goals of the educational process. It was addressed in the main to what the author conceives to be the adverse effects of modern science, philanthropy and art upon the performance of the human intellect. This inquiry isx0 ‘THE GREAT POWER AT THE BAR AND BENCH not of pecliar concern to lawyers but what did eae m attention asa lawyer was a comment like this: e I is notablethat in our obsession with the scientifie mode, two of the mist remarkable uses of language in society are today in small repute; though not entirely neglected, they ate at least reduced to the, rank of commonplace services. such ae any ablebodied man could. discharge for his fellows. I refer to diplomacy and the law. ‘Since the doors of diplomacy, at least in its upper reaches, are elosed to most of us, We have little basis in first-hand experience for judging the first of these charac- terizations. As citizens, however, and as human beings standing in awe of what modern warfare appears to mean, we have a great stake in the purity and precision of the international discourse carried on by the diplomats and péfitical leaders. And since statecraft, including that in the field of foreign relations, has traditionally had close relationships with lawyers and the law, a decline in the Ianguage-arts of the one may well have its harmful effects upon the other. Dean Barzuxt wrote his book before the 1960 session of the General Assembly of the United Nations was con- vened in New York, But surely the character of those Proceedings would not cause him to revise his opinion about the prevailing cloudiness of communication in in. ternational relations: And simply because the voices of the great English-speaking countries—the United States and Great Britain—were mainly in happy contrast to the obscurantism flooding the debates from other channels, we cannot stand still in satisfaction. It must, rather, be recognized that our qualifications for successful leadership of the free nations depend heavily upon ability to speak to the whole world in words of clarity and- eloquence. __ For those who listen have great capacities for judging our produet: Most of the emerging leaders of the new Afriean states, and those who speak for Asian coun- ‘ries like India, are fluent in the English language. Many of them got their education under sobering circumstances of great sacrifice and struggle, and frequently in English schools and universities with more rigorous standards than. some of our own. We should be slow to assume that ‘the young men’of the new nation's are“&t any disadvantage ‘THE PROBLEM AT THE BAR AND BENCH a in speaking and writing the English language vis-a-vis the average American colloge graduate who chooses a. career in the foreign service or who finds himself representing his corporation overseas. Certainly our most distinguished educators are unable to give us any reassurance in this regard. Dr. Bernard Berelson recently completed for the Carnegie Corporation ‘a detailed survey and report on “Graduate Education in the United States” in which his concluding estimate was that 80 per cent of the entering graduate students in this country embark upon their work with inadequate, and wholly unsatisfactory writing ability, At an earlier, stage of schooling, the College Entrance Examination, Board hhas found that many high school graduates “reach coll unprepared to read intelligently and unable to themselves clearly”; and it has acted to create a Com- mission on English which will try to do for the teaching: of English what its earlier Commission on. ‘Mathematics has already set out to do for secondary school instruction in that area. Law Schools Lament Students’ Ignorance of English ‘The law schools, as well as the engineering schools, are increasingly in despair over the inability of their students to express themselves clearly. Dean Warren, of the Columbia University School of Law, has devoted more than one of his recent annual reports to this problem, and in the most urgent terms. ‘There must be many who have had disappointments in reading the legal memoranda and first drafis of briefs turned out by their associates— and possibly by their partners as well! ‘The men of law— a profession which is supposed to be able to handle words, if nothing else—cannot look down their noses at the men of science. In any event, all of these signs take on an ominous aspect in the light of the hard fact that, as the New York Times not long ago asserted editorially: “A nation, to defend itself in modern competition, cannot, be satisfied with technological competence. Tt must also. be literate.”2 THE GREAT POWER AT THE BAR AND BENCH As the words poured forth last fall at the United Nations, some were reminded of an Englishman who wrote under the name of George Orwell and who has been dead ten years. Orwell became most widely known through his novel, 1984, but many of his essays are equally re- warding and should be known by more lawyers concerned with the uses of language. ‘There is one essay in particular which deserves greater currency. Written in 1946, it is called “Politics and the English Language”. Through a devastating analysis of specific examples, Orwell shows how bad writing can interfere with straight thinking about the broad issues of world polities that touch ever more closely upon us. In the context of the impending national effort to improve our teaching and use of English, this Bassage is both relevant and timely: A man may take to drink because he feels himslf to be a failure, and then fail all the more completely because he drinks. ‘It is rather the same thing that is happening 10 the English language. It becomes ugly and inaccurete because our thoughts are foolish, but the slowrnliness of our language males it casiet Lox us have fool ish thoughts. The point is that the process is reversible. "Modern English, especially written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble, If one gets tid of these habits one can think clearly, and to think clearly is a necessary first step to. wards political regeneration I suppose that “political regeneration” is itself an ambiguous phrase. Some might take this to mean only that if the Democrats could write better, they would think better and thereby become regenerated as Republicans. Others might draw a different moral. But “political re. generation” for Orwell related to those who have been seduced by the Communist mythology and thus placed in danger of being encompassed by the life lived today by millions of our fellow human beings in Russia and China. ‘Those were the issues before the General Assembly and, so far as can be observed, we in this country were not significantly divided about them. When George Orwell wrote 1984, he must have had 2 pre-vision of the proceedings at Turtle Bay jast year, ‘It was in his picture of the police state of the future that the words “Doublethink” and “Newspeak” were created, ‘THE PROBLEM AT THE BAR AND BENCE 3 “Doublethink” was the mental process by which a pérson could hold simultaneously in his mind two flat contradie- tions and believe both of them. “Newspeak” was the of- 1 language, required to be used by all and designed not to extend but to diminish the range of thought. ‘Mr. Khrushchev repeatedly exhibited his’ masters. of both of these arts; and Premier Castro showed a flair for them which, with a little hard work, could become a fully developed talent. When the latter talked of the American preference for “German warmongering” and. “Japanese militarism” as against the wholly peaceful, pre-oecupa- tions of East Germany and Communist China, -hei.was double-thinking with a vengeance. And Mr., Khrushchev was projecting duality of thought into Newspeak when he said that NATO “has assumed the thankless’ mission of exercising the spirit of freedom wherever it appears on the glob Ring Lardner had a very sensitive ear for’ thelipos- sibilities of this kind of use of words, There. is, that ‘wonderful passage of his where, in responie, to. the, convenient question, the unilluminating response comes back: “‘Shut up’, he explained.” ee ‘To combat these methods of misrepresentation,:andito keep the eyes of the uncommitted peoples “focused pati the facts, superior abilities for clarity and fottéflitnveds fH expression are required. We must be better than good. The shoddy, the second-rate, even the average, will:not do the job. Winston Churchill’s command of language’at one perilous moment in history was his single greatéét weapon against world domination by fascism. And, although Prime Minister Macmillan is no Ohittchill Cont munism faced a formidable trailition of the éffectivé' ‘ide of the English tongue when this highly literate ‘man spoke to the General Assembly in these words: Its therefore as trustee for ordinary men and wore) whont wwe serve that we, the so-called statesmen of the world, should approach our tacks today. But if we are to free mankind rom, jp Horance, poverty and fear, we must at least free ourselyes, old and wornout slogans and obsolete battle cries... . 1 thi it tight to recall for a moment the story of my own eountly. .“ ‘THE GREAT POWER AT THE BAR AND BENCH For:more than a century it has been our to guide our ne, tntoner toward ftedom and independence Since the Second, World War India, Pakistan, Ceylon, Ghana, Malaya, comprising ‘over 510,000,000" of peoples have, with our help, ‘ached the goal of independent fe anal tren Gentlemen, ‘where. are the representatives of tliese_ former British territories: here:they are, sitingjin ous midst in this hall. “AS lawyers, we recojize®this s’powerful argumenta- ‘tion. The Innguage is’simple and direct; and the state- ‘ments of prineiple are anchored in fact. We: can believe ‘that ‘the difference from’ the diatribes of the dictators ‘was "not lost upon the listeners, whatever their national loyalties. ‘The skilled employment of language has, thus, its uses “and at least its occasional triumphs—in international ‘iplomaey. We should, at all events, have cause for alarm if Dean Barzun is right in his feeling that there has been, in general, a decline. What are we to think of his similar appraisal in respect of the law? ‘Unlike many laymen, Dean Barzun is a wholly sympathetic observer of the legal profession. As he puts it = « . contempt and ingratitude toward the interpreters of law is a ‘grave fault. Tt shows ignorance of the long, arduous growth, and superior merit of an institution to which we owe our ease and priv- legs as thinking beings, ‘The law is « model of intelectual wotk, itis a work of words, It is a profession easy to ridicule by its externas and it is criticizable, like other institutions, for its anachronisms. But as an attempt of the esprit de finesse to mold, herent conceptions of the true and the just on the restless maltipl city of human life, it is a criumph of atticulateness and exac- titude, . . It is this veryvhigh value placed upon the mission and the past accomplishments of the law which impels the ‘Dean to search out, the clogs upon the law's most effective functioning. He thinks that one contributing cause to our bad public relations—our inability to get our judicial reform proposals voted by the public, the clamor at the United States Supreme Court—is a prevailing element of moral casuainess which becomes quickly bored with the lawyer's concern that definite and fair procedures be fol- lowed in convicting criminals or adjudicating rights. But his “deeper cause”—and the one refevant to this inquiry— ‘THE PROBLEM AT THE BAR AND BENCH a “is the lowered standard of linguistic power, which’ accounts also for the fact that’ only a few judges ‘no lotigetIivin —Holmes, Brandeis, Cardozo—furnish us again'and again with the verbal concretions of ideas we shotld be lost without.” z All lawyers would, I think, take pride in this recogtii- tion from outside the profession that from within it:come “ideas we should be lost without.” If the formulation. of ‘such ideas is one of our essential functions, then.;we cannot devote too much care and attention to, the, protection and. improvement. of language standards. For surely,,the noblest of all uses of language is to capture and i those fundamental concepts by which a just and peaceful society lives and moves and has its being. Z Cardozo's Six Styles of Judicial Writing A less. flattering aspect. of this comment is that it appears to assume Ul only judicial utterance’ is Signiti- cant in measuring the law's linguistic powers. But sin¢e most good lawyers lead a secret double life in WwhicH they fancy themselves judges of last resort, and’ Shapé! theit legal speaking and writing accordingly, it ig O8'“inolly ‘unfair that our literary critics look to judieidl épiniiotis as the measure of the language abilities of the!proféssion as a whole. We have not needed outsiders’-t0>d0 "this job of identifying the weaknesses, as well.as the oceasionil strengths, of judicial writing. Judge Cardozo hiiself:once made a classification of- judicial styles in his» essay Law and Literature, He thought he could discern six -in number, ranging from. the type magisterial, or imperative, at one end of the spectrum, to the type tonsorial or ag. glutinative, at the other, this latter being so dime bel Cause ofthe large part niaved init by seiosore and pase John Marshall was, of course, the great exemplar. of the former. - If anyone doubts. the critical: importance Which skill inthe writing of English can have, eas only to think of Marshall. He gave permanent shabe atid structure to what has. become the leading nation jn fhe ‘world, and ho did it by the inspired use of languags,,. none knew this better, or lamented it, more’ bilterly,: thant36 ‘THE GREAT POWER AT THE BAR AND BENCH those who wished that shape and structure to be of an ventirely different kind. John Randolph of Roanoke spoke truly of the power of effective writing when he said of one of Marshall’s key opinions: “All wrong, all wrong, but no man in the United States can tell why or where- ‘Marshall spoke ex cathedra. He did not argue. He id not rely upon authority. He neither remonstrated nor demonstrated. He. pronounced—and in propositions ‘0 clear and orderly and rational that the debate was over from that time forward even though many people were vaguely uncomfortable about the result. If one recalls the historical circumstances—a young, struggling and un- certain country, divided but hungry for guidance as to how to make its new government work in practice—this was a most fortunate conjuncture of the times and the style. In the large, the 360-odd volumes of the U. S. Reports have not fared too well in terms of the literary art. A disappointingly small proportion of that enormous output can put forward any claim for recognition as graceful and appealing writing. John Frank has recently made another classification of judicial writing by the Supreme Court. His groupings are four in number, and he has appended examples of each to his book, Marble Palace. The first he calls Legal Lumpy, and he is probably correct in assigning a great deal of Supreme Court writing to ‘this category. Take this one sentence from an opinion by Justice Shiras—a judge no better nor worse in literary ability than mst of those who have sat in his place: ‘The case is thus brought within the mule, which this Court has so often ad ocesion to lay down, that the remedies inthe cours of Inited States are, at common law or in equity, not to the practice of ste courts, but according to the principles of ‘common law and equity, as distinguished and defined in that coun- tty from which we derive our knowledge of these principles, and thet, althongh the forms of proceedings and practice in the’ state courts shall have been adopted in the circuit courts of the United States, yet the adoption of the state practice must not be understood 4s confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended cogether in one suit. ‘THE PROBLEM AT THE BAR AND BENCH 3 There is one sentence with 128 words in all, three negatives, and a variety of qualifying and tangential ref- erences. Small wonder that the kinsman who was the Justice's sympathetic biographer felt compelled to say that Shira’s technical proficiency and experience in the law gave him “no advantage as a stylist”; and that his “way of presenting his view was more competent than charm ing.” This Kind of legal writing is widely prevalent—and it is by no means confined to Supreme Court ¢pinions. Frank's second classification is Legal Massive, .in which he recognizes Chief Justice Stone as an, acknowl edged expert. ‘This is only a part of one of Stone’s sentences in this mode: Apare from cases, involving. the historic public callings, im semorably subject to the closest regulation, this court has stained regulations of the price in cases ‘where. dhe legislatures fixed. the charges which grain elevators, Bros v. North Dakota, 133 US. 391; Budd v. New York, [43 US. 517, and insurance companies right take, German Alliance Ine. Co. v. Less, supa; on tequited miners to be paid per ton of coal unsereened instead of screened, MeLeae 2. Arkansas, supra; Rail & River Coal Co. 0. Vaple, 236 US. 2984 6 required employers who paid their men in store orders to redeem them in cash » and so on through ‘ive more instances, complete with citations, in this one sentence alone, with four more similar listings in the sentence to follow. All laymen, and many lawyers, leave off reading early and reach for the daily paper. The drama involved in state regulation of prices is hopelessly submerged. ‘The two remaining classifications, respectively’ ei titled Rock-Bottom Contemporary and Legal Lucid, T shall not pursue, You can infer their contrasting nataré from the fact that a quotation from Chief Justice: Vinson ilus~ trates the one, whereas Holmes’ famous and glowing words from his dissent in the Abrams case exemplify the other. Only this last kind of judicial writing succeeds in. eon- veying to the outside world some grasp of the great work the law is about. Most of the time our lights are hidden under literally bushels of words, inexpertly. put together. ‘The failures in this respect are, of course, tot entirely human, The problem has its inherent difficulties, “Justice38 ‘THE GREAT POWER. AT THE BAR AND BENCH Frankfurter: (who need not be an,apologist since he writes always with the pungeney of one. who.is at, home in, the world. of letters) tag reminded us that “[L]iterature.is not;the. goal.of lawyers, though, they occasionally attain ik” And, for this he has the authority of Holmes him. self, who said that “[0]f course the Jaw is not the place for, the ,artistor the poet, ‘The law is the calling of thinkers.”.Cardozo recognized, that. good judicial adminis- tration frequently, requires: “caution and reticence.” And, as Frankfurter points out, “[C]aution and reticence” are tot the welisprings of literature, but they are indispensable ‘to’‘wisdém'in law, eertainly to wisdom in adjudication." “°" Accepting this limitation, however, the goal should always be for language to be used by lawyers in as effective a'way’as possible. ‘There should be more occasions when we'do infact seale the literary heights, or at least attain’ the foothills rising above the plain of conventional expression. What are the barriers in our path? ‘here are, first, the deficiencies im our educational syslem with respect to the teaching of Kinglish, to which have already referred. This isa peril common to all profestions and indeed to all persons, whatever their callings. ‘A second sourve of impurities in current speech is the jargon that seems to afflict government service. Lawyers are pecilliarly exposed to it because of the close relationship between law and governimentt and the fact that an incteasingly ‘large number of lawyers spend some time in the public service. I don't Know ‘what it is about Washington that generates these special vocabularies, but thei danger is real and continuing. ones. The other day Kvread that the Department of: Defense’ lists certain amounts appropriated to it hy Congress as “unprogrammed in no-year accounts”... It turns’ out. that this means. only that, these appropriations -have mot vas’ yet been spent ‘The, trouble with language like, this is that it ends up by.confusing-even those who devised it in the first place, “Another word’ that has erept into lawyers’ talk is “finalize”.''So far as T can @iseover, it is a word the lawyers, brought home from World War IL asia. result of ‘thele, temporary, association with, the. military; -and now ‘THE PROBLEM AT THE BAR AND BENCH » an otherwise literate attorney will tell yout that he is engaged in “finalizing” a contract. You will not fitid the word in any dictionary, but that alone is no objection to it if it is a useful addition to precise speech, Language should be no more static and frozen than anything. else, But “finalize”, as E. B. White has said, is “a peculiarly fuzzy and silly word. Does it mean terminate or does it mean put into final form? One can't be sure, really, what it means and one gets the impression that the person using it doesn’t know either, and doesn’t want to know.” If we of the learned profession of the law start allowing our speech to be dominated by the civil servants, or by the military, we are surely in trouble, ‘That road ends only in Madison Avenue and the verbal’ horrors that modern advertising has spawned. A third factor is the extraordinary degree to which a successful lawyer may get out of the habit of writing anything himself. The evils of ghost-writing are by no means confined to public officials, although they have the same source, namely, the tendency for able men, to become busy and drawn ‘into a daily round of meetings, and appointments and other enemies of creative thought and expression. ‘The result is that some of our best mea at the Bar may be doing very little initial comission; and we all know how the first draft tends t'set the style and tone of any piece of writing. President Lineoln had readily at hand a. very, gifted young writer in the person of John Hay as one of his secretaries. Ihave often wondered what. would ,have happened if Lincoln, succumbing to the time pressures he was under, had asked Hay to work up a first dratt of something appropriate for the dedication of thé’ now nilitary cemetery in Pemsyivania. And I doubt that the Second Inaugural would have come out quite’ the’ dame: if it had been first undertaken by the boys over at What ever was the Civil War equivalent of the Blidget Buredii, Good writing is a highly personal experience, and it does not come from tinkering with the product ‘of somedne else. The lawyer or judge who can write well bit déedn't’ have the time to is lost to the cause of bettér legal com munication. »© ‘THE GREAT POWER AT THR BAR AND BENCH A Good Style Depends Upon the Ear ‘A’ good writing style is heavily dependent upon. the eat!” We laiow that a particular pideo' of prose is goo because there is a rhythm in it which we may not be able to define but which we hear nonetheless. We learn to ‘white Well otiéelves by reason of these tones we pick up in our reading, but they will be missed if we read too fast, A further obstacle to good use of language is, thus, the fact that we have so much to read these days that we have to develop the knack of racing through a lot of ‘material. I have seen it said that the art of rapid reading, admittedly essential, may well be killing the sense cf tone in prose as well as in poetry. Without that sense of tone, our own writing and speech will inevitably suffer. ‘There is one hopeful prospect, and that is that we seem to be moving to some degree toward a listening society rather than one which relies solely upon solitary reading. ‘The malo, the long-playing record, the tape recorder, the television play or reading, are seeing to that. If the quality’ is good, the tones emerge, as in slower reading by oneself, and the cultivation of the ear will go on. Now I should not like to be understood as suggest~ ing that listening can ever become an adequate substitute for reading. Seienco is wonderful and it unquestionably has many fabulous surprises yet to reveal, but we can not anticipate that a better instructional method in the use of English will ever be contrived than that of sitting down and reading quietly to oneself. Whiat is read is, of course, equally critical. We have recently had it on the authority of @ member of the Supreme Court that the quality of both the oral argument and the briefs before that Court in Washington is, on the whole, distressingly low. ‘The Justice in question has speculated that this is due to the narrowing cultural range of the profession, which in turn is a result of the restricted reading habits of lawyers, both in terms of the small amount of time devoted to general reading and the ephemeral character of what is tead. The caliber of presentations to the Court, so it is said, tends to be — ‘THE PROBLEM AT THE BAR AND BENCH. 4 higher in lawyers from smaller places. If so, this indicates that the pressures of urban practice and living are,divert- ing successful city lawyers from those cultural activities which leaven the single-minded pursuit of the law. ‘On the need for breadth in those who hear-and decide cases, Judge Learned Hand has said: T venture to believe that it is as important ro a judge called upon to pass on a question of constitutional lar, to have at least @ Bewing scquinance wish Acton and Madan, with Thucydides Gibbon and Casile, with Homer, Dante, Shakespeare, and Mikion with Machiavell, Montaigne, and Rabelais, with Platoy: Bacon; Hume and Kant, is with books which have been specifically writen on the subject, For in sach matters everything toms on the spitt in which he approaches the question before him. Judge Hand would also say, we can safely assume, that a lawyer who ‘ries a constitutional case these days—and ‘who hopes to win—should be similarly equipped. For mitt of us the bowing acquaintance with these sources which ‘we acquired in college has become pretty faint with the passage of years and tho preoccupations of making: Nyt jing. But I believe we all would recognize the truth’ of the point Judge Hand is making. As the law, grows anid takes lis shape from the changing and developing Tite of real life, success for the practicing lawyer, a8'also a, tinction for the judge, requires a largeness Of, spitit te flecting sensitivity to the wider world of Which law, ig only a part. , But capaciousness of spirit is nothing if it eannetba communicated, The thinking of great thoughts is ineom- plete if the thinker cannot tell others what they are. ‘The authors on Judge Hand's. reading list did iboths and ‘one of the reasons we read them is for the lessons tHey"'teach in how to make words serve as the instruments .of great ideas, as the means of making the ideas become, guides to action in the experience of many more: persons ‘than the original thinkers. The great idéas that ‘come“from within the law will never get outside it unless Jawyers have some measure of artistry in the use of words. Lawyers are primarily men of reason, as artists:are primarily men of imagination. If we had less, of reason and more of imagination, we should write novels, not, wills2 ‘THE GREAT POWER AT THE BAR AND BENCH —drainatic ‘plays, not mortgage indentures. Our uses of words would be vivid and colorful and compelling in their effects upon those who hear or read. them. ‘To achieve effectiveness int the use of language, therefore; llainyers ‘have a special need to’cultivate the imagination. Reason must be supplemented if it is to be brought to bear with its fullest power. ‘The time we can find to devote to the artistic triumphs of the imagination—the great: pictures, symphonies, literature—is not wasted, even in the narrowest terms of professional self-improvement. It-is thus that those faculties are stimulated through which we transmit the great and abiding messages of the law. ‘The Jaw and lawyers deserve a high place, because they do generate and proclaim ideas which the world would indeed “be lost without.” More than ever now is our profession under a duty to keep those ideas flowing, and in a form which persuades that these are the rules by which men live in just and orderly—but free—societies, ‘There can be no nobler employment of language. John ‘Mason Brown has said that the great writers in the law “Tike their blood-relations the great wordmen in literature, haye lighted up the world for us by using language as beacon”. ‘To keep that flame alive and burning brightly is surely a constant and urgent concern of every man of law. ‘Aispied from AMERICAN BAR ASOGIATION JOURNAL, 47:37 (1861), eth pemmision thea the Exscutve Bator, ‘D. LAWYERS MUST BE EFFECTIVE ‘COMMUNICATORS by W. PAUL Gonmuzy ‘Visiting Levernulme Fellow a the Paculty of Law, University of Manchester, England REGARDLESS OF specialization, it is probably apparent to members of the legal profession that the most important single tool used ‘by a lawyer is symbolic language. Con- siderable attention has been devoted to the shortcomings of law:students and recent graduates in'the use of writ- ‘THE PROBLEM AT THE BAR AND BENCH 4s ten English; however, relatively little attention has :been devoted to that academic discipline labeled. “speech”: by, most universities.’ A moment’s reflection will indicate that, even though a courtroom lawyer, corporation, counsel,- gov ‘ernment attorney or office lawyer spends considerable time in employing the written language, most of the daily Zune~ tions of any lawyer depend upon effective speech. ‘The purpose of this artiele is to indicate in a general fashion the reason why future attorneys and the present- day successful members of the Bar should seek more training and skill in speech in order to become,more, effective participants in society. The specific purpose. of this! paper is to show that the proper use of oral persuasion and eom- daily activ. ‘The Need for Speech Training If we look at the contemporary scene, it at once becomes apparent that the world leaders of today are fective speakers. Can we possibly imagine“a mute” Hur chill, de Gaulle, Adenauer, Eisenhower, Kerinedy, ‘Nixon Castro or Khrushichov? An extended list cold esi bd provided to show that the statesmen of the World ave er? fective communicators, even though we' may “wisi? shit some of them were not quite so effective. — ‘The need, in the first instance, is for! effective! bom- munication—I do not mean the old discredited instruutib that was offered in oratory and elocution around the tur of the century. TW. L Mathews, Jey Fist Vegr Legal Writing and Legal Mesbod in a Smile i! Stboo Wf Legal BE. 208 (1993)"" Rabon eq. Legat Writing Progvam is the’ Law School, 2. Us Chr LS. Rats, (0933). Su Moculoy, He'G. Manne, Low Con Legal Writing. Progra The Wisconsin, Bsperiette, il T, Legal Bi. 387 (1959), Tor some. ates the importance af speech sce A. S. Caller, Appellate Caes: Ti Ona hegement, 44 ABAT. 831. (1938). Cater sts: ‘forth ‘their sale amount to Has couroon sa fae te Wily to be pesuuive, ingootiting and iofermative om their fet" (page 352)" aaj Sl “Tae Aopament of a pte, 3 Cornel EPG. a 34 He rots gt sat ol aunt lo pee Sek Banas the Argument of an Apped, 16 ABA). 095 (540). or 2a example ofthe wee of. general cemantcs ia aw school instrcton se. Walter Becbst, WA} Not Teach Semanies 39 Lew School? 10-f- Legal Bais 25 (1957) Gah

The Problem at The Bar and Bench

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