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Barker, D --- "Strategic Legal Writing" [2008] LegEdDig 29; (2008) 16(2) Legal Education Digest 54


Strategic legal writing

D N Zillman & E J Roth

Cambridge University Press, 2008, 212pp

Legal Writing is not recognised as a law degree subject in either the United Kingdom or any of the Australian State or Territory Jurisdictions, so for that reason is very much a North American concept. The equivalent outside North America would be an introductory course on legal research or an introduction to legal essay/assignment writing.

Nevertheless, this is not to downplay the art and skill of legal writing. In fact most practical legal training programs leading to admission for professional practice in Australia and the United Kingdom will contain a legal skills and professional awareness course. This would normally incorporate the development of communication and technical skills necessary for legal practice, of which legal writing would form part.

However, the impression that an observer would gain both from discussions at legal education conferences in the USA and reading journal articles is that legal writing is a basic core subject in the legal curriculum which does not enjoy equal status with mainstream legal subjects, a view also expressed by the recently published Carnegie Report. This means that much will depend on the enthusiasm of the law teacher to create an interest in the topic for their audience as compared to other core subjects such as contract, torts or criminal law to which the law student can easily relate as having relevance for their future career in professional legal practice.

In Strategic Legal Writing, the introduction states that in comparison to many legal writing texts which emphasize how one writes; this text is unique because it focuses on why one writes.

As compared to many legal teaching texts it is necessary to be aware that Strategic Legal Writing adopts an entirely different approach. This means that the introductory pages require a concentrated approach by the reader who will need to master this introduction if he or she is going to understand and obtain the full benefit of the main part of the text.

The introduction not only incorporates an examination of what is meant by Strategic Legal Writing but is also followed by an explanation of Using the Text. The Introduction could be confusing to some readers in that there is a separate Introduction to Chapters One, Three, Five, Seven, and Nine as compared to the Introduction to Chapters Two, Four, Six, Eight and Ten. This is because the odd numbered Chapters relate to the transactional or office practice chapters whilst the even numbered Chapters contain the litigation assignments. There is also the further complication that whilst Chapters Two, Four and Ten are concerned with civil litigation, Chapters Six and Eight involve criminal proceedings. The Introduction is followed by an Overview which is in some ways reassuring to both the teacher and the student in that it recommends two non-legal books to assist the student in developing a ‘clear crisp writing’ style. This is followed by a summary of what are, in the view of the authors, the ‘most important elements of strategic legal writing.’

The scenarios involved in the ten chapters are highly original and should prove challenging and stimulating to the student. They range from the problem of whether the introduction of a non- denominational prayer at a University Athletic Banquet contravenes the Religious Clauses of the First Amendment to the American Constitution, terminating the employment of a University Professor, recovering a sculpture misappropriated from a United States Embassy and prosecuting a perjury case whereby a defendant fabricated an email message and then lied about it.

The text introduces the student to a variety of causes of action, such as replevin and unjust enrichment and also provides a litigation assignment involving a ‘motion for downward departure.’

Whilst the Introduction states that the structure of the text was based on the authors’ experiences in drafting a course for a nominated class of law school students, this reviewer would question whether the assignments could have been grouped in a more structured sequence. It might also be more helpful to the readers if the ‘Follow-up’ sections could have been incorporated into the relevant chapters.

However, despite these criticisms of how the text might be better re-ordered there is no doubt that Strategic Legal Writing will add a new dimension to any legal writing program.

Professor David Barker AM


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