Denver Bar Association
January 2013
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Exorcising the Horror from Legal Writing

by Ryan Jardine

 

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any timidly face the decrepit blank page waiting to be filled with legal analysis, succinct reasoning, and ironclad argument. During these moments of angst and fear, it’s best to turn to an author who knows a thing or two about cranking out some riveting prose.

Stephen King, perhaps the horror genre’s most prolific writer, wrote the too-seldom-read treatise "On Writing: A Memoir of the Craft." Although the advice contained in this little book pertains to fiction writers, its principles can be applied to all forms of legal writing. The following four tips from King’s book will take the chill out of legal writing for a litigator preparing arguments, briefs, or memoranda or a transaction attorney drafting contracts, disclosures, or research summaries.

"There is no Idea Dump, no Story Central, no Island of the Buried Bestsellers; good story ideas seem to come quite literally from nowhere, sailing at you right out of the empty sky: two previously unrelated ideas come together and make something new under the sun. Your job isn’t to find these ideas but to recognize them when they show up."

Attorneys face challenges that require the identification of a great idea for a client’s benefit. Maybe a particular argument calls for a brilliant counter, a fact pattern requires a unique tact, or a challenging business transaction pleads for a satisfactory resolution. At these times, the solution starts with an idea that is then expressed in the written word.

There are a variety of ways to coax out these ideas. One is to initially ignore it. Take a break from the current project and work on something else; give the subconscious time to work on the idea. Come back later and the idea might be waiting for you.

Another method is to talk through a particular problem with colleagues, peers, friends, a spouse, or your mother. One of the benefits of this type of collaboration is the crystallization of certain ideas. By talking through an issue out loud, as opposed to on the page, the idea may be more clearly identifiable.

Oft times, a change of scenery can be helpful. Take a laptop to the library, a conference room, or even outside for an hour. By taking advantage of these strategies, you might find the perfect idea to solve a particular problem.

"When you write a story, you’re telling yourself the story. When you rewrite, your main job is taking out all the things that are not the story."

Lawyers are storytellers. A litigator may be telling a particular story to the court while a transactional attorney could be telling the story of a business transaction. In either of these situations, and hundreds others, the first draft is seeking to understand the story. The rewrite is then the time to identify those items that detract or distract and eliminate them.

That process of eliminating distractions is one part of the greater battle of rewriting. C.J. Cherryh once said, "It’s perfectly OK to write garbage—as long as you edit brilliantly." Give yourself permission to write a miserable document. Remind yourself that no one is going to read this first draft except you. So many writers spend so much time on the first draft that by the rewrite, exhaustion quickly sets in. For these writers, running spell check is as much of a rewrite as they can muster.

Change your paradigm and commit to be a great rewriter and to expend your best time and energy on the rewrite. There are a few simple steps to help focus on the rewrite. First, grant yourself freedom to write a fast and sloppy first draft. Then, after you have assembled the raw materials of words, sentences, and paragraphs, go to work building something worth sharing. Remember, it is fine to be a horrible writer, as long as you are a brilliant editor.

Sometimes you might write something that is so impressive, so clever, and so witty that you can’t believe that you came up with it yourself. We all do it. You read it over and over, basking in your own brilliance. You marvel that you wrote something so pithy, insightful, and deep: each line is filled with clever allusion, insights, and hidden meaning. Warning! When this egocentric energy wriggles into your writing, beware. That little passage might need to be eliminated.

When a writer gets too clever and personally thinks his or her written word is so spectacular, the opposite is likely the case. It’s well advised to be suspect of any part of a memo, brief, contract, or email that you personally find amazing. Have an objective third-party read it and give you an honest appraisal. If it is not universally incredible, rewrite.

"If you want to be a writer, you must do two things above all others: read a lot and write a lot. There’s no way around these two things that I’m aware of, no shortcut."

Accept the reality: If you are a lawyer, you are a writer. Professor Michael R. Smith, a nationally recognized expert in legal writing, wrote, "Contrary to the popular perception of lawyers (garnered in part, no doubt, from their depiction on television), legal advocates spend a great deal more time persuading through the written word than they do through the spoken word." This ability to communicate clearly, powerfully, and persuasively as a lawyer hinges upon your writing ability.

Once you accept your identity as a writer, own it. It is time to make it part of who you are. Become a lawyer-writer. Don’t just read opinions and legal texts; read great authors, read newspapers, read dictionaries, read everything. Spend your leisure time writing: write a journal or blog, write on your commute, write on napkins—just write. If you define yourself as a writer and act accordingly, your effectiveness as a lawyer will increase dramatically. The more you read and the more you write, the better writer you become, and the better lawyer you will be.

"You can approach the act of writing with nervousness, excitement, hopefulness, or even despair—the sense that you can never completely put on the page what’s in your mind and heart. You can come to the act with your ?sts clenched and your eyes narrowed, ready to … take down names. You can come to it because you want a girl to marry you or because you want to change the world. Come to it any way but lightly. Let me say it again: you must not come lightly to the blank page."

The power of words is the power to change lives. A convincing argument clearly communicated to a judge can be the hinge on which an order or decision turns. The correct and complete expression in a contract could prevent litigation years down the road, and a well-reasoned and clearly written opinion could become precedent for hundreds of years. The ability to fill a blank page with the right words is the way a great lawyer is distinguished from the mediocre. Coming to the page with that attitude will help you to achieve the desired results for yourself and for your client.

Imagine the difference if figures in history "came lightly to a blank page."

"About 87 years ago, a lot of people traveled some distance to a new land and brought with them some pretty good ideas" sounds a lot different than "Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal."

"Don’t ask us what we can do; do things for us" would not resonate through time as does, "Ask not what your country can do for you—ask what you can do for your country."

"I imagine that eventually we can live together and hopefully get along most of the time" does not inspire in the same fashion as, "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

This year, commit to taking one of these helpful tips from Stephen King and implement it into your legal writing. This commitment to becoming a powerful and persuasive writer will enable you to provide the best legal services to clients and may result in making a lasting and significant contribution within the community and society. D

Ryan Jardine

 

Ryan T. Jardine is a public finance attorney with Kutak Rock LLP in Denver.
He may be reached at ryan.jardine@kutakrock.com. 


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