Candidate attribute number 5 on the Legal Employer’s Hierarchy of Needs is writing ability. Good writing plays a larger role in attorney recruitment, hiring and practice than it does with respect to almost any other profession with the possible exception of journalism. Attorneys write for a living. For most attorneys, writing consumes most of their professional time. In a legal work environment where expressing yourself in writing is central to an attorney’s daily duties, carelessness when it comes to writing is not tolerated. Moreover, your writing represents your employer and any document carelessness or “muddleheadedness” will be attributed to the organization for which you work. Employers won’t put up with poor writing for very long.
How Employers Assess Writing Ability
A would-be employer assesses your writing ability by examining your writing sample(s). That is by no means the whole story. Evaluation of your writing ability begins long before an employer sees your writing sample(s).
This is the easiest of the Hierarchy’s “Big Six” to demonstrate. Be aware that every document you submit to a prospective employer is, in fact, a writing sample. This includes resumes, online application forms, cover letters, transmittal emails, resume addenda, and reference lists.
Craft application documents that are logical, impressive, and correct when it comes to grammar, tense, syntax, agreement, parallel construction, etc. Always have a second set of eyes that you trust look over your documents before you submit them.
Something as small as a typo in a transmittal email can be the basis for rejecting your application. When I hired attorneys, a typo meant automatic rejection. My company lived and died by its writing. There was zero tolerance for carelessness and sloppiness.
If, in sorting through your potential writing samples, you find such errors, select another document. The brilliance of legal arguments is frequently neutralized by grammatical mistakes in the eyes of employers. Worse, once the reader spies a grammatical error, s/he tends to obsess about it to the exclusion of your content.
The Writing Sample
If you don’t have a suitable legal writing sample, prepare one now before you are asked to submit one. If you are unemployed or not in a position to do much serious legal writing, volunteer for an organization such as a legal aid provider where you might have the opportunity to prepare legal documents.
Opportunity Knocks for the “Writing Sample-Bereft”
Alternatively, you can always craft a good writing sample by submitting a comment on a proposed government regulation. Hundreds of proposed regulations each year appear in the Federal Register where the issuing agencies request public comments. Public comments often wind up published as part of the preliminaries to the promulgation of the final rule or an intermediate document (both of which also appear in the Federal Register). Your writing bona fides will be enhanced if the regulatory documentation mentions your comment. Even if it does not become part of the record, you will have created a serviceable writing sample on a legal issue.
Choosing the Right Writing Sample
Legal employers today focus more attention on writing samples than ever before. What used to be a largely pro forma exercise, the last step before an offer of employment, is now taken much more seriously.
If you are blessed with an assortment of possible writing samples, the following criteria can help you choose the best one to submit (Note: These criteria are not presented in order of importance because what might be important to one employer might be less important to another).
It is the rare writing sample that satisfies each of the following criteria. However, legal employers do not take an all-or-nothing approach when reviewing writing samples. The bar is set a few ratchets down from perfection.
Currency. Employers are more likely to be impressed with a recent writing sample than one that is dated. An old writing sample implies that you have not done any serious legal writing for a long time. A rough rule of thumb: submit a writing sample prepared within the past two years.
Is your topic interesting? You are more likely to “imprint” your writing ability on an employer and have him or her remember it at hiring decision time if it is interesting. What makes it interesting is a timely topic and/or lively or entertaining facts. A murder case beats the daylights out of an analysis of collateral debt obligations any day.
Is it “quickly absorbing?” Does it quickly capture the reader’s interest? An ideal writing sample opens strongly and rivets the reader’s attention quickly, making him or her want to read further.
Complexity. This can be a double-edged sword. Complicated issues that require – and clearly manifest –your analytical skills can be a significant plus. At the same time, they can cause the reader to become bored, confused and lose interest. This becomes a balancing test—something you will have to determine for yourself, or in conjunction with someone whose opinions you respect. That person does not have to be an attorney. The best legal writing can be understood by non-attorneys, too.
Is it a legal document? If you seek an attorney position, a legal writing sample is more appropriate than something else. However, if you lack a legal writing sample, make sure the document you select satisfies as many of the other criteria as possible.
“Confusion Quotient.” If your argument or analysis is difficult to follow, the reader’s interest will wane while his or her irritation with you will grow. This criterion is one of the key reasons for you to have someone you trust read your writing sample and provide you with feedback prior to submission to the employer.
Relevance. Is your writing sample related to the position for which you are applying? If you are applying for a litigation position, for example, a pleading, brief, memorandum of law or argument in support of a motion, etc. are ideal submissions. If you seek a transactional job, then a properly redacted transactional document is best. If a regulatory position, then either a regulation you drafted, a position paper analyzing a proposed or final regulation, or a regulatory comment you submitted is ideal.
Relevance to the practice area or industry. If, for example, you are applying for a position as a trademark attorney for a cosmetics company, then a writing sample concerning a cosmetics industry trademark issue cannot be topped.
Is it about an issue of significance to the employer? While you may not be able to submit a writing sample that speaks to either the position, the employer’s industry or the practice area where you would work, one that discusses a timely issue applicable to the employer also qualifies as a strong submission. For example, the impact of climate change would be very interesting to an energy industry or environmental employer, regardless of the employer’s specific industry niche.
Is it persuasive? The bottom line of all good lawyering is persuasion. If the logic of your argument/analysis is compelling, you will receive credit for your persuasive ability in addition to your writing ability.
Impact. What was the impact of your writing sample (if any)? Was this a “winning” document? Did it contribute to a positive outcome? Did it change something? Note: This is not quite the same as submitting a persuasive writing sample. A document can be persuasive, but not a winning one for many reasons, and vice versa.
Readability. Does your writing sample read easily and flow smoothly? Your writing style should demonstrate that you have a strong command of English spelling, grammar, syntax, usage, etc., and that you are a good editor and express yourself clearly. Reading it should be enjoyable (or at worst tolerable), not an excruciating ordeal.
Does it survive careful proofreading? If there are typos or misspellings, choose another writing sample. More candidates are rejected for this reason, on the basis of their writing samples, than for any other reason.
Is it concise? The French polymath, Blaise Pascal, once wrote to a friend: “I apologize for writing a five-page letter…I did not have time to write a one-page letter.” An economy of words is prized in a writing sample and any other document.
Ownership. How much of the writing sample is your own work? Every legal employer understands that lawyering is often a team effort. It is generally not expected that you must only submit a writing sample that is 100 percent your own work. At the other extreme, avoid submitting a document that has been heavily revised or edited by someone else. The closer you get to a document that is entirely your own work, the better. Indicate on the cover sheet accompanying your writing sample that: (1) the document is “____ percent my own work,” and (2) how and where it reflects someone else’s contribution.
Are you a capable “bluebooker?” Ideally, there should be a sufficient number and variety of legal citations to enable the employer to judge whether you understand bluebooking. Citations should be both correct and consistent.
Was your writing sample published or cited? A document published by a third party or cited in a court opinion, law review article or other publication gains considerable credibility because the third party has vetted your writing ability.
Does it have a cover sheet? Every writing sample needs one that puts the document in context. The cover sheet should explain what the document is about, when it was prepared, why and for whom it was prepared, how it was used, whether it is complete or excerpted, how much of it is your work, etc. The cover sheet should be reader-friendly and send a positive message about your organizational skills and forethought, for which you will receive extra points from the employer.
There is no hard and fast rule governing how many of these factors have to be satisfied for a writing sample to qualify as worthy of submission. That is a judgment call for you to make, once you have evaluated all of your potential writing samples.
Improving Your Writing Ability
There is only one way to do this effectively. Read, read, read and write, write, write. The more you do of both, the better you will become at expressing yourself in writing.