Today, we’re proud to present a guest post by Joe Fore (@Joe_Fore), Co-Director of the Legal Research and Writing Program at the University of Virginia School of Law.
A few weeks ago, Legal Writing Pro Ross Guberman (@legalwritingpro) shared a LinkedIn article posted back in April 2017 about an attempt to give writing advice that turned sour. It’s a tale that can provide some important lessons about giving effective feedback in the legal writing context. Here’s the story:
A recent college graduate applied for a job with a South Florida law firm and submitted writing samples along with her application. The firm’s owner found the writing samples to be—in his words—“riddled with problems.” But rather than simply toss the application on the reject pile, the attorney pulled out his virtual red pen and offered—as he saw it—some “constructive feedback”:
The applicant, however, didn’t see the attorney’s critiques as well-intentioned advice. Instead, she took to job search site Glass Door to complain that the attorney’s comments about her writing were “inappropriate” and “completely unacceptable.”
The lawyer’s story drew deeply divided responses online. Some commenters took the author’s side, seeing the situation as an example of a thin-skinned Millennial who couldn’t handle constructive criticism. Others showed sympathy for the applicant, labeling the attorney’s comments condescending and counterproductive.
There’s probably a bit of truth in both of these positions. Certainly, it’s essential for new attorneys—indeed, all novices—to be able to accept and implement feedback. But I can’t help but think that the way the attorney’s feedback was delivered got in the way of some sound writing advice.
So what can practicing attorneys do to ensure that their feedback is most likely to be understood, appreciated, and implemented by the recipient? Thankfully, there are many helpful resources out there. A June #PracticeTuesday thread discussed thoughts for commenting on written work product—focusing primarily in the context of collaborating on a motion or brief. And the Legal Writing Institute (@LWIOnline) has created an entire online collection of published articles all about critiquing written work. Drawing on these resources, here are a few simple and helpful strategies that attorney-mentors (or anyone critiquing written work) can use to improve how they frame their feedback to maximize its effectiveness.
1. Make the writing the subject of your feedback, not the writer.
Consider these three pieces of feedback that our attorney-critiquer gave: “Don’t use unnecessary words.” “Don’t do that.” “[Y]ou don’t know how to break up sentences.” Who’s the subject of all of those sentences? It’s “you”—the person getting the feedback. This kind of “you”-centered feedback immediately puts recipients on the defensive by suggesting that they—and not their work product—are being judged. And, as the authors of the classic legal writing text The Lawyer’s Craft point out, “[c]riticism is hard enough to take without name-calling.”
So one easy—and effective—way to improve feedback is to de-personalize it by making the writing the subject of your feedback. Rather than focus on what the writer did, focus on the writing as it exists on the page. As the late professor Molly Warner Lien explained in a 1999 survey of effective commenting strategies, using comments like “The organization of the section could be improved” rather than “You did a poor job of organizing this section” keeps the focus on the writing and “produces enthusiasm rather than defensiveness.”
In the attorney’s feedback to the job applicant, he actually implemented this strategy—with varying degrees of success—in a couple of places. Take, for example, the comment “Your sentence was like 4 lines long.” The comment puts the emphasis on the sentence itself, not on the person writing the sentence. But it still characterizes the problematic sentence as “your sentence.” A better example is the final comment bubble, which says “Again, this sentence is so long—it is an absolute monstrosity.” While we can debate the merits of using the word “monstrosity” to describe someone’s writing, this comment avoids critiquing the writer altogether. Simply by changing “your sentence” to “this sentence,” the critique has made the feedback become less personal and puts the emphasis, appropriately, on the writing.
2. Assume a new identity.
Another way to avoid a defensive reaction is to show that the comments are coming from the feedback-giver’s role as a “reader” and not as a critiquer or editor. One easy way to implement this strategy is to begin comments with phrases like “A reader might think that…” or “A judge might be wondering…”—a strategy Jessie Grearson calls “professional role-playing.”
This role-playing strategy has several advantages. In terms of tone, phrasing comments in this way avoids setting up a “me”-vs.-“you” dynamic and, instead, puts the feedback-giver and the feedback-receiver on the same team. As Stetson professor Kirsten Davis notes, this can help to build “ethos” between the writer and critiquer, pushing feelings of judgment away from the feedback-giver and onto a mysterious, third-party “reader.” In addition to making the feedback more palatable, role-playing also helps writers develop a better awareness of readers’ needs. As a 2009 law review article on mentoring new lawyers explains, phrasing comments from a hypothetical reader’s viewpoint helps the writer develop empathy by showing “why the successes and problems in the document are so important to the reader[.]”
Again, our lawyer-critiquer actually got pretty close to this in one place when he said, “Nobody is going to make it through that long of a sentence other than you.” While the “other than you” may have been a bit counterproductive, setting up a third party reader—“Nobody”—was helpful. And it would have been even more helpful to emphasize the reader’s feelings toward such a long sentence.
3. Point out the good stuff.
Looking back over the attorney’s bubble comments, there’s one thing you won’t see: any mention about what the writer did well. Too often, feedback-givers get so focused on pointing out things that are wrong that we forget to point out things that the writer did right. Inexperienced writers may assume that the lack of positive feedback means that there’s nothing good about their writing—which, of course, is almost never the case.
Giving positive feedback isn’t about coddling; it’s about providing sincere, specific examples of what writers have done well. As legendary legal writing professor Anne Enquist explains, positive comments, “not only provide needed encouragement, they also point out effective examples in the student’s own work that he or she can draw on and use again in other contexts.” And during June’s #PracticeTuesday thread on editing colleague’s work, both practitioners and legal skills faculty echoed the importance for highlighting the positive:
Constructive feedback seems to go down better with a spoon full of sugar — (genuine) praise about what’s great/works in the current draft.
— Chris Walker (@chris_j_walker) June 14, 2017
Be sure to say why it’s good so writer can do it again. #PracticeTuesday
— Katherine Kelly (@ksilverkelly) June 14, 2017
Giving writing feedback is a hard, time-consuming, and often thankless task—especially for busy practicing attorneys. By using some of these above tips, you can maximize the chances that new legal writers will be open to receiving and implementing your advice.