Writing on Writing: The Hardest Kind of Writing
by Scott Stolley
Duke University professor George Gopen recently declared that legal writing is the hardest kind of writing. That seems like a bold statement when you consider that good writing of any type is always hard to produce. As sportswriter Red Smith quipped, “Writing is easy. All you do is sit down at a typewriter and open a vein.”
But Professor Gopen makes a good point. He compares legal writing to other types of technical writing, such as medical or scientific writing, where the audience is often willing to work at understanding what the writer is trying to say. By contrast, Gopen says that “The audience for a legal brief is often openly and energetically hostile.” Such audiences will not tolerate having to work to understand your writing.
When you think about it, Professor Gopen is right: Legal audiences (judges and opposing counsel) are often hostile (or at least skeptical), which does make legal writing especially difficult. You have to overcome that hostility to even begin making any headway. You do not necessarily have to win over a hostile opposing counsel (though that might promote settlement), but you do have to win over a hostile judge or judicial panel. And you are less likely to do that if the judges have to work to understand your argument.
There are many writing techniques for overcoming a hostile legal audience. Gopen’s revolutionary Reader Expectation Approach is an example. (More about Gopen’s approach in a later article.) As law professor James McElhaney says, the overarching principle is that the argument must do more than make legal sense. It must be factually and emotionally plausible, too.
The best way to do that is to engage in rigorous analysis of your writing. As many legal-writing experts have said, good writing results from good thinking. Or as Steven Smith (Dean at California Western School of Law) recently said, “Inadequate thought and preparation create a kind of fraud—pretending to know something well enough to tell someone else.” The lack of thought gives rise to the fraud.
To avoid that sort of fraud, University of Texas legal-writing instructor Gretchen Sween recently posited that legal writers must be more like the Shakespeare character Hamlet. But wait a minute, how does that make sense? Didn’t he go crazy and embark on a killing spree ending in his own death?
Sween hypothesizes that it was Hamlet’s obsessive soliloquizing that kept his “madness at bay.” As he thought about all of the “wherefores” and “what-ifs,” he was self-regulating. But once he quit soliloquizing—once he stopped engaging in introspection—he went crazy for good. Without the introspection, the consequences no longer mattered to Hamlet.
When you think about it, Hamlet’s pre-rampage soliloquizing was itself a bit insane, serving as a finger in the dike to prevent the rampage. It was a useful insanity. Similarly, Sween concludes that “Good legal writing requires the kind of insanity that temporarily kept Hamlet from going nuts.”
We have to obsessively think about all of the angles if we are going to produce a persuasive brief. When we do not obsess, then the insanity appears—the kind of insanity that does not care about the consequences. Without the obsessiveness, we can lapse into careless, or even stupid, briefing.
For example, Professor McElhaney points out that there are five especially deadly ways to lose an argument:
- Failing the giggle test (the plausibility test).
- Overstating the facts in your favor.
- Concealing facts that hurt you.
- Misstating the law.
- Ignoring the issues.
The deadliness of these errors lies in the fact that they all harm your credibility. Expert after expert has said that your credibility is paramount. So isn’t it a form of insanity to write something that harms your credibility? To write something without concern for the consequences is insane.
To prevent that kind of insanity from infecting your brief, you must engage in a lot of “crazy talk.” As Sween puts it, “Taking time to argue with yourself is a sane practice.” It certainly leads to saner writing, for as Dean Smith says, “Good writing requires us to understand ourselves.” It’s the introspection, stupid.
So staring out the window, thinking about your brief, is not only sane, but necessary. As James Thurber once quipped, the hardest thing he had to do was convince his wife that he was working as he was staring out the window. You have to engage in the hard work of thinking (go temporarily insane) if you want to produce a sane brief.
All of this may explain the old writer’s quip that, “I do not like to write; I like to have written.” Once you have gone through the temporary insanity of writing, it feels good to savor your work.
In that regard, legal writing is like most other writing. It is the hostile audience that sets legal writing apart from other kinds of writing. A hostile audience makes your job that much harder. You have to go through that much more insanity to get the job done.
Scott P. Stolley is the leader of the Appellate Practice Group at Thompson & Knight LLP in Dallas. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. He can be reached at Scott.Stolley@tklaw.com.