Show Them the Way Using Feedback to Improve Writing and Writers - American Bar Association
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Show Them the Way
Using Feedback to Improve
Writing and Writers
D AV I D J . S . Z I F F
The author is an associate teaching professor at the University of Washington School of Law, Seattle.
In his baseball memoir Ball Four, former New York Yankees term, though, we want junior attorneys’ writing to improve as
pitcher Jim Bouton tells a story about Yogi Berra. Berra, an all- quickly as possible so we can spend less time editing their work
time great, was taking batting practice with some of the other and more time on the rest of our practices.
Yankees hitters. As the mortals sat and watched, Berra tried to To accelerate that transition, do more than just show the junior
impart some hitting wisdom. It didn’t work. Either Berra wasn’t attorney your finished product. That sort of “Just watch me do
clear or they just couldn’t understand. The lesson ended with it” feedback puts too much emphasis on the result and too little
Berra grabbing a bat and yelling, “Just watch me do it.” emphasis on the process. It’s as if we opened a cookbook and the
In Bouton’s view, that breakdown in communication wasn’t recipe page showed a picture of a beautifully frosted cake with
anyone’s fault. Berra was just too good, too experienced, and only these directions: “Make this cake.”
therefore too instinctual. He couldn’t explain how to do what That recipe would fail for the same reason that simply doing
he was doing. He just did it. the rewriting fails. Both the novice chef and the novice lawyer
If you often find yourself revising work product by recent law likely understand that the final iteration is better than their own
school graduates or summer interns, you might identify with initial effort. But they haven’t learned how to achieve excellence
Berra’s plight. A junior attorney gives you a draft that doesn’t on their own. The next time they bake a cake or write a brief,
work. You explain the problems and ask your inexperienced col- they’ll have to return to the expert for more help.
league to revise and resubmit it. The next draft falls short again. We’re always surprised and perplexed when our new hires
You repeat that process, perhaps a few times. In the end, you take struggle with simple writing tasks. After all, we hired them
the document and rewrite large portions of it yourself, as if to because they had good references, excelled in law school, and
say, “Just watch me do it.” submitted good writing samples. How could the same per-
Sound familiar? son who crafted that well-structured and well-reasoned moot
We can’t avoid editing junior attorneys’ writing. It’s part of court brief now make so many mistakes in a draft summary
our profession. But we can make the process more effective. In judgment motion?
the short term, of course, we want the particular brief or letter One possible reason: Even the best law students are novice at-
or discovery request to be the best it can be. Over the longer torneys. And novices often have difficulty transferring skills from
Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 1
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.one setting to another. Recent law school graduates have done program or simply show new hires to their desks, there should
a good bit of research and writing. They were likely pretty good always be room for some writing-related instruction.
at it to warrant getting hired. But the research and writing they That instruction could be as simple as recommending some
will be doing now is different—sometimes entirely, sometimes writing-related resources to provide new attorneys with a solid
subtly. They will likely need some time to figure out how to ap- foundation. Pick a favorite style and usage guide or a trusted
ply the skills they gained in law school to the new tasks before book on legal writing. Maybe you’ve collected bar journal ar-
them. And they will need and benefit from some help. Real help. ticles that offer writing tips. Perhaps your organization already
has an in-house style guide. If not, consider creating one; that
process will be useful, not only for future hires but also for the
Where to Start attorneys who create it.
So here’s a place to start: Provide new attorneys with general Consider including sample documents in your orientation
writing instructions. Adopting formal writing-related strategies materials. New attorneys crave good samples, because samples
at the outset of recent law graduates’ careers can help the new show how you want things done. And collecting samples can be
attorneys transfer their law school achievements into achieve- fun, akin to creating a highlight reel of previous work.
ments that benefit not only the clients but also the firm. We want Annotate and explain the samples, because providing sam-
that new hire to become the experienced lawyer who supervises ples comes with potential pitfalls. Samples can be limiting and,
tomorrow’s novices. if not accompanied by proper guidance, can lead to confusion.
The learning process starts right away, when the new law- Reviewing them, junior attorneys must distinguish among three
yer comes on board. Whether you mandate a formal orientation kinds of guidance: (1) generally applicable sentence-level and
Illustration by Carolina Peláez
Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 2
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.structural choices, (2) the original author’s own idiosyncrasies, A shortcoming of samples is that they are, by definition, pro-
and (3) the original author’s strategic choices based on the spe- vided to junior attorneys who don’t already know how to write
cific context of the individual case. what we want them to write. They lack the judgment and con-
The first category provides the most value. It can be used by the textual awareness to distinguish between, on the one hand, gen-
junior attorney as a model for future writing. That sort of general- eralizable aspects of the samples that should be learned and, on
izable advice can take many forms. Perhaps the sample illustrates the other hand, unique choices that should not be adopted. They
a clear, plain-language writing style that the junior attorney can don’t know the difference between always using plain language
model when addressing other complicated legal issues. Or the and sometimes starting with a constitutional argument.
sample might use headings to break up sections of a brief; illustrate
how much space to give a brief’s introduction and conclusion as
compared with its factual and analytical sections; or show some- Foundations Through Explanations
thing more specific, like a particularly effective way of dealing So samples should come with explanations—what is generalizable
with adverse precedent or neutralizing a strong argument. Any and why; what is unique and should not be repeated unless the
of that is useful because it can be applied in a variety of contexts. specific circumstances call for it. Explanations can come through
written annotations, direct conversation, or both. But the key to
laying a thoughtful foundation is providing explanations.
More Guidance Why is laying a thoughtful foundation for successful writing
The other two types of guidance are a bit more slippery. Samples important?
display some of the author’s own idiosyncrasies—style choices,
word preferences, rhetorical devices, and other quirks that the
author tends to use but the junior lawyer need not mimic. Those
demonstrate an effective approach but not the only effective ap- Novices often have
difficulty transferring
proach. To assist a junior attorney’s untrained eye, explain those
aspects of the samples and provide samples from different au-
thors effectively using different styles.
Samples also reflect specific strategic choices made in the
unique context of specific filings in specific cases for specific
skills from one
clients that would not necessarily work in other settings. For
example, the junior attorney might receive a sample brief that setting to another.
refers to the client, Petrochemical Conglomerate Incorporated,
as “the Company.” In that instance, that choice may reflect the
judgment that the client’s name might not evoke sympathy. But For a moment, forget about law. Imagine you are learning to
that shorthand naming decision may not be why that brief was play music. Your teacher gives you a flute and asks you to play.
selected as a sample. The junior attorney should not think that You’re not very good and you struggle. You see how your teacher
genericized client names are always preferable. does it. You try to mimic your teacher’s technique. Then you prac-
But the junior attorney can’t automatically know that and, tice a bit, just on your own, in preparation for your next lesson.
from reading the sample, wouldn’t have any way to know that. But at the next session, your teacher gives you a trumpet and asks
So, from that sample, the junior attorney may learn the wrong you to play that instead. Your flute practice and all the work you did
lesson. Drafting a brief for the Little Orphans Charitable Trust, during the first lesson feel useless and unhelpful. You’re terrible at
the junior attorney may unwisely choose to refer to that client the trumpet. Will next time be better? Perhaps. But what if, when
as “the Trust” or, much worse, as “LOCT.” you arrive for your next lesson, the teacher gives you a clarinet?
This problem can arise in more important and complicated That disconnected and haphazard process isn’t the most
ways. A sample brief might present a theme that aggressively effective way to improve at playing music. Better to start with
attacks the opposing party, but that strategy might be unwise more foundational skills: notes, scales, keys, time signatures,
against a more sympathetic opponent. A sample brief might ad- those sorts of things. Then you could practice playing scales on
dress a counterargument by quickly brushing it aside, but that the flute. And when your teacher hands you a trumpet instead,
strategy might be foolish against more robust or pertinent mate- your flute practice won’t be worthless. That practice would
rial. A sample brief might begin with a fundamental constitutional have improved your understanding of scales more generally.
argument, but only because that argument is the strongest, not And that improvement would transfer to the new instrument,
because all briefs should start with constitutional arguments. making the scales on the trumpet a bit easier to understand.
Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 3
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.The common foundation provides a connection between The intention of our client’s action was to help the puppy.
seemingly distinct and fragmented lessons. And it’s that con- *No! Just say, “Our client intended to help the puppy.”
nection that helps novices transfer their emerging skills from
one setting to the next. By recognizing the common underlying The intention of our client’s action was to help the puppy.
skills, the novice can sustain learning momentum, more effec- *See Williams on nominalizations.
tively improving with each iteration.
Receiving a similarly strong foundation in good writing is The junior attorney may absorb the more generalized lesson
important for junior attorneys. They shouldn’t just be thrown from the first, more direct, style of feedback, but the second, fa-
into work with the hope that they’ll pick up writing lessons by cilitative approach makes future errors less likely. It suggests the
working on disparate projects for different supervisors. Better junior attorney read a selection of Joseph M. Williams’s excellent
to start with some general information that can provide a jump- writing text, Style: Lessons in Clarity and Grace, which should
ing-off point for comments, lessons, and improvement going be on the onboarding reading list. That selection will provide
forward. That general foundation is critical to facilitating the a better and more effective explanation of the problem and its
process of transferring skills from one project to the next. solution than any senior attorney could provide in the marginalia.
It’s also helpful to provide both directive and facilitative Perhaps most importantly, the facilitative feedback provides
feedback, perhaps the most critical tools for helping junior at- a helpful connection between otherwise discrete projects. By
torneys grow their writing abilities. Generally, editors provide connecting the revision of this specific ineffective sentence to
two kinds of feedback—directive feedback, which either tells the improvement of a more general skill—here, avoiding nomi-
the recipient what to do or perhaps just does it; and facilitative nalizations—the junior attorney more readily carries that im-
feedback, which notes a problem but prompts the recipient to provement forward to the next writing project.
figure it out on his or her own. With facilitative feedback, junior attorneys don’t just get
For example, when a senior attorney reviews an introduction better at writing individual sentences about puppy intent.
drafted by a junior attorney and then simply rewrites it, that is Instead, they learn how to write more effective sentences in
directive feedback. If, instead, the senior attorney points out any circumstance.
some general problems, asks some questions, raises some issues, One common objection to that form of facilitative feedback
and recommends that the junior attorney review a sample and is that it takes too long. That’s a valid concern. It does take
revise the draft, that’s facilitative feedback. time, especially at the beginning. But the time it takes is just one
Both forms of feedback are necessary and helpful. Each has important factor. As a skilled writer, you can always rewrite
its place and value. If a junior attorney writes “summary judge- the sentence—or the paragraph, or even perhaps the entire
ment” with the e in “judgement,” better just to make the correc- brief—in less time than it might take you to explain the general
tion. Scribbling in the margin “Why did you choose that spell- principles and prompt the junior attorney to improve the draft
ing? Please consider the differences in British and American on his or her own.
English and perhaps consider revising” is unwarranted. But that extra time spent on feedback won’t be wasted. It’s an
Directive feedback can also be useful at the start of a investment. The time spent training at the start of a new attor-
document, the first time you run into a repeated problem. ney’s career will pay off when that new attorney is more quickly
Demonstrating a certain kind of revision and how to fix it can and more effectively creating work product for clients. The goal
help the junior attorney independently make the rest of those isn’t to make any one document better. The goal is to make the
revisions. As with sample documents, sample revisions work junior attorney a more effective writer for future projects.
more effectively when we explain the first revision rather than Providing facilitative feedback is itself a skill, one that takes
merely make it. The reasoning behind that revision might seem a little time to learn. It’s often a struggle to craft generalizable
clear and obvious, but it might not be clear and obvious to the feedback in response to a paragraph that doesn’t work. Writing
junior attorney. “Make this paragraph better” is not particularly helpful, though
that might be the first reaction that comes to mind.
Consider the situation from the junior attorneys’ perspec-
Facilitative Feedback tive. Struggling to determine why a paragraph doesn’t work,
For more abstract, structural, stylistic, or strategic choices, facili- how might they figure it out? If they don’t understand what
tative feedback is far more useful to a junior attorney’s develop- the problems are, they won’t be able to avoid them in their next
ment. It can be particularly helpful when tied to the foundational drafts. Time invested in the initial explanation will save time
material provided during orientation. on the next revision, when the junior attorney is better able to
Compare these two possible revisions: avoid whatever problems he or she had writing the last one.
Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 4
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.helps to ensure that the junior attorney doesn’t pull up the kale
Avoid Using Track Changes with the dandelions.
One counterintuitive way to impose a more effective feedback Beyond feedback, take the time to familiarize new attorneys
and revision process is to avoid using Track Changes on your with your revision process. Regardless of what form your feed-
word-processing program. Of course, Track Changes is conve- back takes, your newly hired attorneys will be receiving a lot of
nient and wonderful for specific uses. But for junior attorneys it. Receiving and responding to all that feedback will be a new
who are experiencing the revision process as a learning tool, the experience, another new skill they will need to develop.
convenience of Track Changes is a bug, not a feature. Compared with real-world practice, law school offers fewer
A sentence revised with Track Changes is the worst kind of di- opportunities for intense cycles of writing, feedback, revision,
rective feedback—it’s directive feedback that requires no thought feedback, more revision, and more feedback, repeated until com-
to accept. The junior attorney sees his or her sentence all in red pleted or the filing deadline arrives. Even with the expansion of
with a line through it. Next to it, the junior attorney sees your clinical programs, externships, and upper-level writing courses,
sentence, also in red, which apparently is better, but for some law schools still can’t match real-world practice when it comes
unarticulated reason. to the intensity and expectations of the revision process.
The junior attorney has two options: stare at those sentences
and think about why your version is more effective than his or her
version; or just click Accept and, in less than a second, be done
with it. For a junior attorney under time pressure with multiple
deadlines to meet, guess which option will be more likely chosen.
A first draft from
By contrast, comment bubbles or even handwritten notes on
paper force the junior attorney to think a bit more about those a junior attorney is
somewhat like a garden
changes. The decreased efficiency creates more time to think, to
evaluate, and to understand the feedback. Most of us benefit from
the act of reading a handwritten addition and then using our own
judgment to incorporate it into the document, sometimes with
slight modifications. Even in the short time that takes, some learn-
overrun with weeds.
ing and understanding can occur.
One of the goals for the senior attorney is to facilitate that learn-
ing and understanding, though perhaps not on every writing proj- Engaging in that process is itself a skill. Help junior attorneys
ect. Sometimes the filing deadline looms, and there’s no time for learn how to do it.
facilitative feedback. In those cases, what needs to be done must As part of the orientation process, explain the revision pro-
be done right away. But if you want to encourage the development cess. How do you want them to think about your comments and
of your junior attorneys, you can improve their writing by improv- recommendations? Should they accept them unquestioningly?
ing your feedback methods. Should they occasionally push back? Can they make revisions to
In the midst of all that directive and facilitative feedback, in- your revisions? If so, how should they indicate those changes?
clude some positive feedback. As with the other types of feedback, Remind them that every revision should be considered as a po-
explain why the good parts are good. Positive feedback isn’t just tential global revision—an invitation to find similar problems
for encouragement or to protect the junior attorney’s ego—it’s elsewhere and to fix them too.
practical. If a junior attorney has difficulty understanding why Yogi Berra wasn’t wrong to show his teammates how he hit the
ineffective aspects of his or her draft are ineffective, then the ju- baseball. The difficulty for his teammates was what to do with
nior attorney will also have difficulty understanding why the ef- that demonstration. If they simply tried to do what he showed
fective parts are effective. Point out the successful aspects of the them, they wouldn’t succeed half as well as he did. For those hit-
draft, not to make the junior attorney feel good but to encourage ters to improve, Berra couldn’t just tell them how to hit, and he
more of that writing in the future. Positive feedback reminds the couldn’t just show them how he hit. Rather, he needed to show
junior attorney that he or she is capable of doing what needs to them how to work, how to practice, how to focus.
be done, and it helps the junior attorney understand what makes Do the same for your junior attorneys. Don’t tell them how
good writing good. to do it. Don’t just show them how you do it. Rather, show them
A first draft from a junior attorney is somewhat like a garden how to do it for themselves. And then, in time, they too can be
overrun with weeds. Constructively critical comments help the writing like an all-time great. q
junior attorney weed the garden. But highlighting the good stuff
Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 5
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.You can also read
