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Legal Writing as Art and Science

Tonya Kowalski*

1
Legal writing is both an art and a science. We can all appreciate how
an illustrator’s single, deft penstroke can suggest the languor of a cat’s repose
on a sun-bleached windowsill. We do not as often appreciate how a lawyer
draws a scene with facts, selecting and assembling them just so, and creating a
scene of both suffering and spirit in an asylum seeker’s affidavit. And while
we marvel at an engineer’s solar array, which “catches” sun like so many
flowers, in our hurried professional lives, we rarely perceive the skilled law-
yer’s incorporation of neuroscience and learning theory into her efforts to
teach a complex rule to the reader. As lawyers, our professional standards are
no less exacting than those for the most celebrated artists and scientists. But
even though most of us spend the great majority of our practice wielding the
written word as both sword and shield, we often treat the task as perfunctory:
something to be gotten through. We are pressured by time and heavy case-
loads that allow little time for growth and reflection. The law curriculum, too,
often sends the message to new lawyers that legal skills are stone-age skills
that anyone can learn by rote.
Fortunately, the perception of legal writing as mere labor is changing,
and a growing number of law schools like Washburn show their dedication to
nurturing practitioners by emphasizing legal writing as an academic and prac-
tical discipline. A full six credits are devoted to legal writing in the first-year
curriculum at Washburn. Historically, Washburn has drawn from its tenured
and tenure-track faculty to teach legal analysis, research and writing, even
during the era when most other law schools offered no legal writing course or
devoted only teaching assistants to mentor students in those all-important
skills. In recent years, the first-year program has evolved into a co-directed
model staffed by faculty members who consider legal analysis and writing
their primary scholarly and teaching interest. The law school does not draw

*
Associate Professor of Law, Washburn University School of Law; J.D. 1995, Duke University
School of Law.
1. See Kathryn M. Stanchi, The Science of Persuasion: An Initial Exploration, 2006 MICH. ST. L.
REV. 411, 456 (2006).
Persuasive legal writing is, and remains, an art, not a science. Nevertheless, science can be a part
of art. The best persuasive legal writers already try to predict how their audiences will react to cer-
tain arguments, syntax, analogies, or vocabulary. . . . [I]f you are going to do it, you should do it
right. The data about human decisionmaking will not give lawyers all the answers, but it can show
us strategies that we might never have known about or considered, and it can put a fresh spin on
other, more familiar strategies.
Id.

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102 Washburn Law Journal [Vol. 50

lines between skills and doctrinal faculty; there are no separate categories or
tracks, and many faculty members teach both types of courses. Increasingly,
many courses represent hybrids, teaching a doctrinal field through practice-
oriented problems.
The message that legal writing is fundamental to good lawyering is re-
ceived by our students. This special issue of the Washburn Law Journal is
devoted to excellence in legal writing, and comes during the Journal’s cele-
bration of its golden jubilee. The articles selected for this issue represent a
balance of both the art and the science of a growing field. As the Washburn
Law Journal reflects on a half century of contributions to legal discourse
across the nation and in Kansas, legal writing as a scholarly and practical dis-
cipline looks to an open horizon in terms of finding its place in the law. Just
as composition theorists and cognitive scientists recognize that writing is
thinking, judges and lawyers know that legal writing is thinking about—and
developing—the law. It is also the brushstroke on the canvas, moving the
viewer to deeper states of relation and understanding.