Writing the Course

Try your hand at writing a law school parable. Or, you might try a Lawyers and Literature course parable. Or for that matter, just write a parable. You might think of the parable as an introduction to your course paper; or, it might become an epilogue to your paper. There is a real possibility that it will constitute just another piece of junk, a piece of writing writing from which you are unable to salvage anything of value. If you find nothing in writing the parable that is salvageable, you might want to rethink how you go about learning from failure. [On the garbage we produce when we write, and why it might not be such a bad thing, see: Notes on Peter Elbow. The notes from Peter Elbow's Writing With Power: Techniques for Mastering the Writing Process (New York: Oxford University Press, 2nd ed., 1998) may actually help you with your writing.]

Final exams may be a topic you are currently thinking about as we wind our way to the end of still another semester. Exams are an impetus to pull together and fit together everything you know about a subject. With this power of final exams to help you focus in mind, I present the following Final Examination question for Lawyers and Literature, a question that assumes that you had a single one page reading assignment for the entire semester, and that one page happened to be Franz Kafka's parable, "Before the Law.

For a law school course on writing that I taught some years ago, see: The Lawyer as Writer

Law School Stories: One thing you might do with the law school stories we read is to see if they might inspire you to write an account--call it a story if you will--of your own law school experience. I taught a course a few years ago called Memoir and Legal Education, and you might find ideas for your writing by perusing the course website: Memoir and Legal Education. You might find the suggested writing for the first class of that course of particular interest: Class 1--Memoir and Legal Education.

In Lawyers and Literature you are not being asked to write a memoir but a writing that uses, in some way, at least some of the stories you read.

What Brought You to the Course

Give yourself a test. See if you can write two paragraphs (or stretch yourself and make the writing an entire page), in which you tell someone--anyone really--how you ended up taking Lawyers and Literature. Note the temptation to say something like: "I thought the course would be interesting." "I needed to take a break from more traditional law school courses." "I needed to take another course to satisfy the perspective requirement." "The course was being offered at a convenient time." Any one of these statements may be true. But in this writing, see if you can get beyond the clichés and conventional ways of talking about your decision to take the course.

For this writing, you face an interesting question, maybe even a perplexing one: How can I write about my decision to take Lawyers and Literature in a way that might actually hold the reader's interest? Or might provoke or entice the reader to want to know more about me? If you are tempted to write, "I needed to take a break from the more traditional law school courses." Are you trying to say that you have experienced a hole, a void, an emptiness in legal education that you secretly hope the course might fill? If so, try to capture what has been missing in your legal education. Or perhaps you have an inordinate love for books, or a particular book, and it is this passion for books and for reading that brings you to the course. How can you talk about this love, this passion?

The basic idea here is to find a way to talk about your interest in literature, your desire to escape the mind-numbing thought of reading more judicial opinions, or the idea of pursuing what you found most educational in your undergraduate studies without sounding like a great bore. Is it really the case that law students and everything they write must be boring? I assume not. Look at Sheila, the protagonist in J.S. Marcus, "Centaurs." The comments and observations that Sheila makes about legal education and her fellow students are the exact opposite of boring. Indeed, I would like to meet Sheila, buy her an espresso at the Blue Moose, and hear more about her days as a law student.

The Fictional World of Lowell Komie

Writing About the Lowell B. Komie Stories: You learn as a law student how to write with and about what we call cases (more accurately, appellate opinions) and to make legal arguments based on these cases. In Lawyers and Literature, you need to think about writing using stories you have read in the course. Unfortunately, you have not been enrolled in a helpful companion course--"How to Write Using Stories," a course that might prove of considerable valuable to lawyers.

There are many ways to write with stories, and to write about them. I encourage you to find your own way. For my own efforts to do, what you are now asked to do, you might peruse my writing about Lowell Komie's stories:

The Law World Gets Real

Meditations on the Fictions We Live

Letter to My Friend, Lowell Komie

These Komie essays are revised versions of a 2007 essay: James R. Elkins, Meditations on the Odd Lives We Live, 31 Legal Stud. F. 885 (2007).

Professor Louise Harmon's Reading of Komie: Louise Harmon, a colleague whose writings I have read, admired, and published over the years has written a marvelous piece about Komie's stories. I recommend that you read the Harmon essay and note how she uses Komie's stories in her essay: Louise Harmon, Illuminating the Dark: The Stories of Lowell B. Komie and the Pursuit of Meaningful Work, 31 Legal Stud. F. 851 (2007) [online text]

Stories: How a Story Like "Centaurs" Invites Us to Write: I suspect that every story you read in the course has its own hints and possibilities for writing. When I read J.S. Marcus's "Centaurs," I find interesting possibilities for reading at the beginning of the story. The narrator says, "I like the idea of private failure." We don't have to have any idea of what this might mean in the context of the story to find it a rather interesting statement. I suspect it might be interesting enough to write about. Think about a writing with the title: Private Failure.

Shelia, the narrator, in "Centaurs" talks about going to a "mandatory law-school party," and later, about attending a "mandatory tea at the Dean's house." Consider this for a writing: Law School: A Three Year Mandatory Party.

Sheila conjures up what I take to be an image of Pan, the Greek God, when she describes the editor of the law review as "half saint, half goat." Do you know any law school versions of Sheila's "half saint, half goat"--Pan? If you do, then you have something to write about. Or maybe there are other law school gods and goddesses that you encounter in law school: Apollo. Dionysus. Hermes. Aphrodite. Demeter.

In what sense is "Centaurs" a writer's response--you, of course, being the writer--to Kafka's "Before the Law"?

Is "Centaurs" a failed dream story? If so, perhaps it can be related to Kafka's "Before the Law" in some way that provides the basis for a writing.

Another suggested writing topic: What I Always Wanted to Be. This topic takes us back to the first sentence of "Centaurs": "The smartest man in our law-school class told me he wanted to be an actor." Later, Sheila admits that she too "wanted to be an actress" and more recently has "toyed with the idea of becoming a chief executive officer." What part does becoming a lawyer play in the pantheon of people you want to be (or, you once wanted to be)?

How about this for a writing: Inertia and Boredom in the Life of a Law Student. Sheila says, "Inertia seems to be getting me through law school. I don't move much. I wait for a professor to intimidate me into the subject at hand: arson, divorce, whatever." And then later, she says, "[i]n law school, you can feel boredom go from the benign to the malignant." There are pages of writing to be had in this idea of inertia and boredom.

And finally, in the closing paragraph of "Centaurs," we have Sheila thinking, and here I follow the exact contours of her thinking to create a title for a writing: Transformations. Sublimations. Things Becoming Other Things.

Whether any part of "Centaurs," or indeed any of the stories you read, provide fuel for your writing is what we must wait to see.

New Ways of Thinking About Writing

Poetry: We are finishing the Lawyers and Literature course by reading some poetry by James Clarke, a retired Canadian judge. Poetry is a different kind of writing, a different way of thinking about the presentation and display of words on the page. Poetry suggest that we can use language in ways that does not always require complete sentences, ideas arranged in paragraphs, and, more basically, that not all writing must be in the linear form found in a legal brief or a traditional essay of the kind you may have been taught to write. On poetry as a form of writing about the law school experience, see: Brenda Waugh, A Theory of Employment Discrimination, 40 J. Legal Educ. 113 (1990) [online text]

Fragments, Linked-Vignettes, Collage: As examples of new ways of thinking about "writing the course," you might want to peruse:

Ruthann Robson, "Notes from a Difficult Case" [online text]

Jason Wandling, "Estoppel" [online text]

James R. Elkins, "Life Adds Up: Notes for a Teacher's Memoir" [online text]

On the collage as a form that might inspire your writing:

Peter Elbow, Collage: Your Cheatin' Art
[Peter Elbow's Writing With Power: Techniques for Mastering the Writing Process has long been one of my favorite books on how to write and how to think about writing]

On vignettes: "A vignette is a short, well written scene. It does not have a plot, but it does reveal something about the elements in it. It may reveal character, mood or tone. It may have a theme or idea of its own the author wants to convey. It is the description of the scene or character that is important. A blog or diary entry can be considered a vignette." [Sylvia Ney, "Vignettes in Literature," on her blog, Writing in Wonderland]

Literature Vignette (Wikipedia) | How to Write a Vignette

Video
How to Write a Vignette

On using and thinking about "fragments" in writing: "There's something about the fragment, as a form of writing, which appeals to me. Probably because any truth or insight, or in fact, any recollection, rarely comes to us in whole. But in broken parts, all of a sudden, in a gasp." [Fragment as Art] See: Fragmentary: Writing in a Digital Age

Writing the Course: I sometimes use the term "writing the course" to talk about one option for what you can do in your writing for Lawyers and Literature. For an exemplar of this kind of writing, and for this kind of writer's way of thinking about the course, see Deidre Purdy's paper written for this course some 20 years ago:

I have the sense that some stories speak so directly that when we try to write about the story, we are charged with what may seem to a rather simple task: finding those passages in the story that carry the weight of the story and presenting them in a way that retells the story. This does not mean that there is only one way to write about a particular story or that every reader will agree on the passages to be selected or how they are to be presented or even what story they will be composed to tell.

For a writing that relies heavily upon the language of the story itself to write with/about the story, see:

In the following commentary, David Bartholomae & Anthony Petrosky, Ways of Reading (St. Martin's Press, 4th ed., 1996), offer us a way to think about reading as it relates to our writing:

Bartholomae and Petrosky invite students to read texts "that leave some work for a reader to do," texts that "invite students to be active, critical readers," texts "that present powerful readings of common experience" and "open up the familiar world and make it puzzling, rich, and problematic." [vi]

The meaning of what you read is "something you develop as you go along" and "is determined by what you do with the [story], by the connections you can make and your explanation of why those connections are important," by your account of that importance. [8]

Bartholomae and Petrosky encourage their students to be "strong readers," to "actively interpret" what they read, "to use a story or an essay as a way of framing experience, as a source of terms and methods to enable you to interpret something else--some other text, events and objects around you, or your own memories and experience." [15]

"By absorbing and responding to the story, we work upon ourselves, upon how we represent the world to ourselves, upon our values and our assumptions about the things of the world, and upon the decisions we will ultimately make in response to those things. In the process, we become so deeply immersed in the reality represented by the work, in its events, emotions, and ideas, that we become collaborators in the act of creating that world, resonating in a metaphorical way to the conjunction of our lives and the words of the writer. The distance between self and other is diminished, reduced, and finally disappears altogether as we round out and complete the work in greater detail and complexity that any mere words on a page can hope to do. In a very real sense, reading becomes a literary event becomes a composing activity, and we become writers as well as readers." [Charles Anderson, "Literature and Medicine: Why Should the Physician Read . . . or Write?" in Stuart Peterfreud (ed.), Literature and Science: Theory & Practice 33-58, 49-50 (Boston: Northeastern University Press, 1990)]

"An effective piece of writing creates the illusion of a writer speaking to a reader. The language, although written, sounds as if it were spoken. Speech is the glue that holds the piece together. The writing voice provides the intensity that captures the reader; the voice provides the music and grace and surprise that keeps the reader interested; the voice communicates the emotion and the mood that make the reader involved.

[O]ur students must have the experience of writing what they do not expect to write. That is the essential writing experience, and if you do not feel that firsthand, you cannot understand writing.

The writer, in writing, uses language to find out what the writer already knows and also uses language to teach himself or herself what may be known. How? How may it be known? By making language, and then hearing what it has to say." [Donald M. Murray, Expecting the Unexpected: Teaching Myself--and Others--to Read and Write 35, 45, 55-56 (Boynton/Cook Publishers/Heinemann, 1989)] [Donald Murray's Essential Delay in Writing]

"For students whose recent training stresses precise, structured, and explicit analysis, the inferential and expressive freedom of . . . fiction can be disorienting. . . . Some students may have so successfully transformed themselves into legal writers that expressive prose no longer communicates anything . . . ." [Alexander Scherr & Hillary Farber, Popular Culture as a Lens on Legal Professionalism, 55 S.C.L. Rev. 351, 378 (2003)]

"An astonishing number of those who can read and write think that they do so rather well. I spent twenty years as a journalist, and I met all kinds of men and women who prided themselves on what they called their 'communication skills'; they would tell you, with an unconvincing show of modesty, that they thought they could write 'a pretty good letter,' It was my duty as an editor to deal with their pretty good letters, and I never ceased to be astonished at how badly people expressed themselves who did well in the world as lawyers, doctors, engineers, and the like. When they were angry they seemed unable to focus their anger; they roared like lions, and like lions they roared on no identifiable note. When they wished to express grief they fell into cliché and trivialized their sincere feeling by the awful prose in which they expressed it. When they were soliciting money for charity, they pranced and cavorted in coy prose, or else they tried to make the reader's flesh creep with tales of horrors that may have been true but did not sound true. I used to wonder what made them write as they did, and whenever I was able to find out I discovered that it was because of the dreadful prose they read and the way they read it. They admired cheap stuff, they imitated cheap stuff, and they appeared to have no understanding of how they cheapened their own minds and their powers of expression by doing so." [Robertson Davies, Reading and Writing 2-3 (Salt Lake City: University of Utah Press, special ed., 1993)(1992)]

T.S. Eliot pointed out that "the individual cannot think and communicate his thought, the governor and legislator cannot act effectively or frame his laws, without words, and the solidity and validity of these words is in the care of the damned and despised litterati. When their work goes rotten . . . when their very medium, the very essence of their work, the application of word to thing goes rotten, i.e., become slushy and inexact, or excessive or bloated, the whole machinery of social and of individual thought and order goes to pot. This is a lesson of history, and a lesson not yet half learned." [T.S. Eliot, Literary Essays of Ezra Pound 21 (New York: New Directions Book, 1935)]

A student asks me to review a short writing for Lawyers and Literature. I ask him what he would like me to do as a reader. He says: "I don't know whether I have found a good theme or not. Perhaps you can read it and let me know what you think."

I tell the student that he has in fact identified a theme from the stories we have been reading and that I see no reason the theme he has identified can't be woven into a thoughtful, instructive, reflective essay. Moreover, it appears that the theme has special resonance for him and one hopes this will make the writing somewhat easier.

While the student has identified a powerful and writeable theme, I have some concern about the writing he has submitted to me. The statements made about the stories are simply too pro forma and reductive to be of much use. They establish only that the student has read the story, but not how or why the storues were being read, or what value they might have to the student or to any reader. The problem, most simply put is this: the writing doesn't reflect much in the way of engagement with the stories.

From what I read the student's writing, the student seems to talk in a cursory way about the stories and then, crudely, makes the shift to talk about his own situation. The stories that provide the launch point completely disappear. It is unclear how the stories have informed the student's reflections. At one point in the writing, there is a discussion about lawyers as insiders and outsiders, and the student concludes: "Some people are natural insiders whatever their profession, while others must be content to be outsiders." The conclusion doesn't follow from the stories we have been reading, indeed the stories seem to suggest otherwise, but there is no reference in the paper to any conflict between the stories and the conclusion. How, one wonders, can the insider/outsider theme in stories/literature have any bearing on lawyers as insiders and outsiders if we are simply living out our genetic inheritance? How can the assigned stories (or literature more generally) matter if we are by force of nature relegated to outsider status? And isn't it an odd use of the word natural to suggest that some of us have been relegated to alienation and suffering as outsiders? Some of us may find our place--inside and outside--as natural, but for others it will be experienced as forced, as quite unnatural. Some relegated to a life as outsiders will be forever discontent. While some will only fume and fuss and complain as outsiders, others will angrily rage against this fate. Some outsiders become rebels and revolutionaries.

The student mentions some "internal baggage" that he carries with him as he sets out to be an insider, and specifically how he got to places where he thought he would be an insider and then found that he was not. But again, this observation is made only in passing and isn't fleshed out in any kind of significant way. When the student writes about "all this internal baggage," the reader wants to know more about this baggage: what is? Shouldn't I feel the weight of it? Shouldn't I be given some sense of how it holds the student back, how it slows him down, how it bothers and annoys him? Otherwise, "all this internal baggage" exists as no more than words on the page.

The basic point is that this student's conclusions don't fit the stories (Kafka's "Before the Law, "The Death of Ivan Ilych"). Indeed, the observations and arguments in the paper don't seem to fit the student's own diagnosis of the situation. For example, he begins the essay by noting that "Those on the inside have achieved a certain level of success, yet they remain encumbered by the same fears, insecurities, and other human frailties that are common to us all." I don't understand how this squares with the conclusion that some folks are just "natural insiders." If they are natural insiders one might assume they would have less insecurity and fear, but then, it's not clear what distinguishes insiders and outsiders. I would think that fear and insecurity might be different for insiders and outsiders, present perhaps for each, but experienced differently.

I would assume that we don't all suffer the same kind of fear and insecurity. Atticus Finch doesn't seem to be in the same condition as Ivan Ilych, indeed, they seem to exist in rather different universes. Or compare Atticus Finch and Jean Baptiste-Clamence in The Fall. I think Will Barrett, the lawyer in Walker Percy's The Second Coming, for all his musing about his life, and his peculiar symptoms, is in a rather different situation than Ivan Ilych. Will Barrett is full of existential questions and reconfigures his life to take account of his reflections. Ilych, on the other hand, experiences fear which is ultimately uncontainable. While Will Barrett enters a period of confusion and uncertainty, we watch his emergence from the fog that has enveloped his life. Is it possible that Ivan Ilych and Will Barrett suffer from the same fear and insecurity? Doubtful. The fear that Ilych suffers carries him virtually to death. There is, we surmise a moment of recognition before death that some answer or relief has been found. Barrett goes down into his depression and survives by charting a "third way"; he accepts neither the mindless insanity of his culture or the path of suicide which his father has taken. We don't know whether Will Barrett will ever be free of his bouts of despair, but we know that he will prevail in a way that Ivan Ilych cannot. We may not know what lies ahead for Will Barrett, but a case can be made for the proposition that Barrett is heading for a life far different than Clamence's stunted performances for patrons in an Amsterdam bar.

And where is the student going with the following statement? "Those on the inside have achieved a certain level of success, yet they remain encumbered by the same fears, insecurities, and other human frailties that are common to us all." The statement is just true enough to disguise the fact that it doesn't work. This lumping/sameness/"we're all alike move" has a certain rhetorical power when used in the right situation--e.g, when Scout reminds Walter Cunningham who has joined the lynch mob at the jail who has set out to abduct and kill Tom Robinson, that he has been to their house and that she knows his son. There are, of course, more benign uses of the move. Atticus tells Scout when she asks him whether they are poor, that indeed they are, but goes on to explain what he means. Sometimes, the we-are-all-in-the-same-boat move is just a way of saying I really haven't thought this matter through and can't explain it and yet I must write something and here it is. For example, law students, during their first semester of law school will sometimes write about the comforting feeling that they are all in the same boat together. They take comfort in solidarity. The comfort and the sense of solidarity comes to a thudding end when grades are published and the happy family becomes tribes of have's and have not's.

When the student goes on to write about his need to be an insider, he makes it sound like going to the laundry to pick up clothes. I didn't get a sense from his writing there was any feeling or any weight attached to the words. The student writes: "[B]eing in law school while having grave doubts about practicing law is a miserable experience." Maybe it is. I assume it is for the writer of these works. I don't doubt the truth of what is being said, but then, as I read on, I begin to actually question the claim. When the language that follows presents a contrary feeling tone and impression, then the claim about law school being a "miserable experience" loses its presumed legitimacy. The words of the claim must be argued, or demonstrated, or evidenced. Assertions don't carry as much weight as demonstrations. As a reader I want to believe in what a writer writes, but writers, like characters in fiction are sometimes unreliable narrators of their own lives. But how can I know what the writer is doing if his language fails him? As the reader, I want to be sufficiently convinced of this student's misery so I could defend it, and my conviction that it portrays a kind of narrative truth.

A similar concern is raised by the student's statement that he finds reading the stories assigned in the course "utterly enjoyable." I like the term "utterly enjoyable." He doesn't say "very" enjoyable. We tend to overuse the word very and in trying to make our language more emphatic, we weaken and dilute it. The word "utterly" provides a surprising and energetic lift to an essay that has been on the short side of flat. While I am enthusiastic about the use of the word "utterly," I begin to wonder whether it was not just a fortunate phrase. And why did I lose faith in the expressed enjoyment? There was not much but the phrase to pin my hopes on. The writer didn't say much at all about his actual reading of particular stories, and didn't point to particular passages in any of the stories that made the reading enjoyable. The reader is asked to assume on assertion standing alone that there was some enjoyment to be had. But how can the claim be credited by the reader when the writer hasn't spoken more fully about his reading and what happened during the engagement with the stories? Doesn't the assertion that the stories were "utterly enjoyable" need to be presented in a way so that the reader can experience along with the writer some of this enjoyment?

Jordan Peterson, a University of Toronto, professor and clinical psychologist: comments on the power of writing and how writing can be seen as central to our character as students.

Get a Teacher Involved in Your Writing. Send me an email message and something you have written. Tell me what you tried to do in the writing. What obstacles did you face in completing the writing?

If you don't want to talk about something you have written, you might want to discuss your concerns about writing, what you need to know to get more life into your writing. What concerns about writing would you like to address during the course of the semester?

"I am convinced that the only way to engage and test the minds of students is to have them write and write and write. But if they write, we should read their writing and comment on it for its ability to frame and sustain an argument, for the use of evidence, and for its capacity to define important issues concerning the text at hand." [Richard Marius, "Reflections on the Freshman English Course," in James Engell & David Perkins (eds.), Teaching Literature: What is Needed Now 169-190 (Cambridge: Harvard University Press, 1988)]

Get a Colleague in the Course Involved in Your Writing. What most of us want as writers are good readers. Your instructor may or may not turn out to be a good reader of your work. Try your writing out on a fellow student. What you want from a colleague (and sometimes from a teacher) is what Peter Elbow calls a "movie of the mind." You aren't asking someone to edit your writing or instruct you on proper grammar. What you most want to know is what kind of effect your writing had on the reader.

Get Involved With Your Own Writing. It's never too late to become a writer, to develop a serious interest in writing, to make a commitment to the craft of writing. Thinking about yourself as a writer might be a way, an indirect way, to think about yourself as a lawyer.

If you are interested in becoming a good writer, you might want to read Peter Elbow's Writing With Power: Techniques for Mastering the Writing Process (New York: Oxford University Press, 2nd ed. 1998). The title of the book makes it sound like another how-to-do-it manual and it turns out the book is a writer's manual but a most unusual one. Elbow writes about writing in an engaging and thoughtful way. His writing is a model of clarity and human sensibility. It turns out to a manual that one actually wants to read cover to cover.

Close Reading
Francine Prose, The Atlantic, 2006 ["The more we read, the more we comprehend, the more
likely we are to discover new ways to read, each one tailored to the reason why we are reading
a particular book."]

The Narrative Essay
HyperText Books, Daniel Kies, Department of English, College of DuPage

Writing the Lawyers and Literature Course

James R. Elkins