The Lawyer's Guide to Writing Well. Tom Goldstein
“Oh,” we say, “you mean on paper!”
We've engaged in this colloquy dozens of times to show that before communication is possible, the writer must know what he wants to say. Just as most of us cannot solve a complicated math problem in our heads, so most of us need paper to solve the problems that are put to us as lawyers. Before communication, in other words, comes problem solving.
In the first edition, we called this chapter “The Ten Steps of the Writing Process.” Jacques Barzun wrote us to complain of the unnecessary use of “process.”
How much anguish we would all have been spared had we known when we were young what we were supposed to do when we had to write. Told to compose an essay on Shakespeare, Charlemagne, or the Declaration of Independence, we gnawed at our pencils, wondering how to get words to resemble the essay example in our textbooks. The methodical writer constructed an outline, dutifully scribbling “I. Shakespeare, the Man.” The impatient jotted down thoughts in spurts and whooped when the last ruled line was filled in. The furtive pulled down the encyclopedia, copying the most relevant article, aware on occasion of the need to paraphrase, though unclear why. Wasn't the object of the exercise to make sure we stayed in at night? Any words on the page would prove the next morning that we had.
When the papers came back to us, the teacher annotated in bold marginal red about the need to avoid so many irrelevancies, or to organize our thoughts better, or to refrain from copying quite so liberally, but few teachers could explain what we were supposed to do and why we couldn't seem to do it. Even fewer acknowledged the pain of writing and showed us how to ease it.
Lawyers need to know what writing is about and how to vanquish the pain, without aspirin. You need to know that you are not the only one who suffers from chaos, uncertainty, and false starts. All writers do, and there is a sound reason for your difficulties in writing clearly and smoothly and logically on demand. That reason lies in the very nature of writing.
Polished writing requires many steps. First, in the composing stage, you think through a problem and get your thoughts on paper. Second, in the editing stage, you shape what you have written to communicate it to an audience. When you sit down to compose, you have nothing to communicate, nothing, at least, about a subject of even moderate complexity, for you have not yet figured out what to say or even what you know. Just because you stare blankly at a piece of paper does not mean that your mind is defective; it is not a warning to take up another line of work. It means that your work as a lawyer is about to begin. Writing is thinking on paper.
Though problem solving is the essence of a lawyer's job, that skill is barely taught in law school. Classroom discussions focus on small points. Indeed, one cannot expect more from classroom time: To take on a larger problem, students would have to write it out, and no time in the classroom is set aside for that. With few exceptions, law schools call on students to solve problems only on final exams, and by then class has been adjourned for the semester. Students thus learn little about writing from their exams. For the most part, the schools teach doctrine, not skills.
Different skills are required at the two stages of writing. The goal of the first stage, composing, is to solve problems; the goal of the second stage, editing, is to express the solution clearly, to communicate. Most instruction in writing emphasizes the second stage, by teaching rudimentary editing skills. Writing instruction, at least in law schools, rarely emphasizes problem solving or composing.
Skill in composing entails proficiency in thinking: First, you must have the talent to put concepts into words—to wield logic, use analogy, and employ metaphor. Second, you must exercise judgment—to evaluate, select, and weigh.
There is an accuracy that defeats itself by the overemphasis of details…The sentence may be so overloaded with all its possible qualifications that it will tumble down of its own weight.
JUSTICE BENJAMIN CARDOZO
In solving math problems, you need plenty of scrap paper once you move beyond simple arithmetic, because the solution is uncertain and mistakes are unavoidable. So, too, in solving a logical or conceptual problem, you will rarely get it right the first time. You stumble, you back up, you weave this way and that because you are hunting for the solution as you go. That is why the most successful writers are those with well-stocked minds open to experimentation.
Few people solve problems the same way. Carl Stern, former law reporter for NBC-TV, compared the approaches taken by two Supreme Court justices, William Douglas and Harry Blackmun, in their dissenting opinions in Sierra Club v. Morton, 405 U.S. 717 (1972). (The Court ruled that the Sierra Club had no standing to challenge the U.S. Forest Service, which had approved a plan to build a vacation complex in California.) Stern observed:
Douglas wrote passionately of “these priceless bits of Americana” which might be forever lost. He eulogized the “valleys, alpine meadows, ridges, groves of trees, rivers, lakes, estuaries, beaches, swampland or even air that feels the destructive pressures of modern technology and modern life,” of water ouzels, otter, deer, elk and bear, and of the Tuolumne Meadows and the John Muir Trail. He wondered who would speak for “the core of America's beauty” before it is destroyed.
Justice Blackmun, on the other hand, a one-time Harvard math major, computed the number of cars that were likely to pass a given point in the road each hour (300). “This amounts to five vehicles per minute,” he said, “or an average of one every twelve seconds.” Really, one every six seconds, he noted, because cars must return to leave the park. And that does not include service vehicles and employees' cars, he added, in his concern about preserving the beauty, solitude and quiet of the wilderness.
Two judges with one point of view, but vastly different writing styles.
Diversionary tactics on the part of lawyers come from their fear that their expertise won't seem very special if they write it down in plain English.
ANDY ROONEY
The ability to write is neither an innate talent nor a learned skill, concludes Susan R. Horton, an authority on writing. “It is,” she writes, “more a matter of attitude than of skill, and the attitude most essential is that of welcoming the mess and the mystery” that give life to writing:
If you are uncomfortable getting your hands dirty and your desk messy, you will cheat yourself out of the chance to discover something new and wonderful to say. Mess is material: material for thinking; for shaping into essays….
We know that “writing” does not begin when we first put pen to paper. Instead, writing is actually only the final stage of a long process. Ideas are born…partly in the act of writing—writing itself generates them—but they are also born out of that rich, primordial slime where we alternatively go after them with our big guns (like definition, compare/contrast, distinction-making) and lie in wait for them to raise their beads out of the smoky swamp like some Nessy. The truth is that all of the lists of procedures in the world will not help you write better if you do not acknowledge that the idea, the hypothesis, the new synthesis, the organization for an essay is likely to appear not so much as a result of applying a rigorous set of procedures, but just when you were not looking for it at all; as you stumbled half asleep to the front door at 4 A.M., to let the dog in, or out.1
Once you understand that composing is a messy hunt for a solution to a problem, you should feel less frustrated over the stubborn refusal of the first draft to write itself. You will find it slow going because you are wrestling with unyielding concepts, not because you are foundering on the words. That is why you cannot sensibly begin with a formal outline, as some teacher somewhere along the way insisted you must (even though an informal outline is usually helpful). A formal outline represents an ordered and logical structure, an organization that you will not be able to impose until you have solved the problem.
Since composing is thinking on paper, a first draft is, at best, the scrap-paper solution to your problem, showing the signs of trial and error. You can never count on a first draft to communicate your solution to your intended audience.
From these considerations emerge two key principles to mastering writing: