Lawyer as Writer
Assumptions, Postulates, and other Beginnings
1. Lawyers (and law students) need to know how to write and write well. Writing is central to the craft of lawyering and a key element in one's success as a student of law. I assume writing to be central to the craft of good lawyering.
2. Lawyers, by professional circumstance, educational training, and willed indifference, write badly. Law students, as any law teacher can testify, produce some rather dreadful writing. And yes, there are some good writers, real writers, who find their way to law school and go on to become lawyers. Some lawyers write well enough to make good money as novelists!
3. Law schools now recognize the importance of writing in the education and training of lawyers. Many law schools now have legal writing programs that teach fundamental writing skills necessary for legal writing. At its worst, legal writing instruction leaves students with the impression that legal writing is formulaic and that the skills they brought with them are irrelevant to the formula.
One way we teach and learn writing is to reduce writing to the functional components found in the writing product. The philosophy underlying this approach, e.g., in legal brief writing, is the notion that the brief can be dismantled as component parts and then the pieces analyzed discretely so that the writer can learn to reassemble them as a brief. This is sometimes euphemistically called a "skills" approach, but it is actually more a "manufacturing" approach to writing. In this industrial or manufacturing approach, the focus is on parts, reproduction, replication.
The most straight-forward way to learn how to write an appellate brief is to write one. It helps to do the writing in a context in which the final result matters, the writing takes place in a community of fellow-learners, and is done under the tutelage of one who has had the experience of writing such texts.
The "form" of a brief is straight-forward, easy to mimic. Writing briefs is the kind of activity you get good at by doing, by repetition, familiarity, and habit, by exposure and experience. In this sense, legal brief writing is like gardening and sailing. Gardeners and sailors may seek out books on these activities but not to learn how to garden and sail. Legal writing, like gardening and sailing, is not learned from instructional manuals.
Whatever one's definition of "skills," most would agree that writing is just that-- skill. We now devote considerable resources (never enough we are sometimes told) to "legal writing" but assume, in the deployment of these resources, that students arrive in law school as capable "academic" writers (of term papers and essays) and that these general writing skills can be redirected to the special tasks associated with legal writing. Is it possible that we have gotten the cart before the horse? If the student has an aversion to writing, or a deep sense of failure as a student writer, or has simply not mastered the skills of student writing, how can there be any hope of success in doing the writing that lawyers do?
4. Legal writing ultimately depends upon the quality of legal education. The instruction in the technical skills associated with writing can never replace the education that makes good writing desirable.
5. In order to learn legal writing, we need to know more about ourselves as writers. Why, for example, do so many of us find working so difficult?
Each of us are already writers of a certain sort. We bring with us to any writing we do a certain amount of baggage. Or as Henriette Anne Klauser puts it in Writing on Both Sides of the Brain, you have tapes playing in your head about who you are as a writer. The writing you do in this workshop and as a lawyer do not take place on a clean slate. Impressions and images of yourself as a writer accompany you; you have already made judgments about how your writing works and how it fails, indeed about what kind of writer you are. And you have had judgments made about your writing. You have written for teachers and they have responded to your work. You have placed trust in the judgment of some who have read and evaluated your work, while trying to forget that of others. And now you are in law school and you are asked to write legal memoranda and briefs, essay examinations, and other legal writings. In law school you are asked to be a writer and to submit that writing for judgment, just as you will write and receive the judgment of colleagues in a law firm, and the judges who will decide the cases you bring before them.
Law students need more opportunity to write, and to learn how their writing works). Every law student needs the opportunity to study her writing, to ponder over the many ways writing can be sabotaged, and how we go about distinguishing between good and bad writing. Every law student needs the skills of the writer, a writer's sensibilities. We may not, ultimately teach anyone to write, but we can explore strategies for learning how writing works. We can learn how to address the obstacles we face as writers.
6. When we know more about ourselves as writers and learn about writing, we become better lawyers, more adept and willing to engage in the writing tasks demanded of us as lawyers. While highly skilled writers may find legal forms of writing and reasoning to be confining, they are less likely to flounder in their writing efforts than those who have no sense of themselves as writers, or who view every writing task with dread.
7. We might decide to learn about writing and ourselves as writers for reasons totally unrelated to the fact that lawyers are expected to write and to write competently (if not well). Lawyers are persons and writers before they are lawyers. By attending to what comes first, we may be better at what comes later.
8. Writing may turn out to be more than an instrumental task, a tool, a means to a desired end. For some it is a way of learning, teaching, thinking. Grandly, perhaps, romantically stated--writing is a way of life.
Writing can be, and is often, a great pleasure. And, to be honest, we know that writing can be difficult, if not downright hellish. Writing can be, and is often, a struggle. We don't want the struggle to destroy the desire to write but to intensify the pleasure found in the writing.
9. We admire good writing, reward it, and seek it out. Many of us--yes, even lawyers--have a reverence for those who write and a secret wish to be a writer, to do things with words that would have the world sit up and take notice.
10. Writing can be learned (and taught).
11. It's never too late to become a writer, to develop a serious interest in writing (and the reading that accompanies it), and to make a commitment to the craft of writing. A concern for writing might affect the way we think of ourselves as lawyers, indeed, might dramatically change our relationship with the law.
12. "No time spent writing is ever wasted." [Susan Shaughnessy, Walking on Alligators: A Book of Meditations for Writers 6 (New York: HarperCollins, 1993)]
"I want to assure you with all earnestness, that no writing is a waste of time. . . ." [Brenda Ueland, If You Want to Write: A Book About Art, Independence and Spirit 15 (Saint Paul: Graywolf Press, 1987)]
Bottom line: Lawyers who fail to see themselves as writers, or experience the pleasure of writing, simply assume that writing is an instrumental task best done and forgotten as quickly as possible. My goal in working with law students is simple: write more, write better, learn something about writing as a craft, and learn something about yourself as a writer. Learn something about the baggage you carry with you as a writer. Write more, write better, write fearlessly, do it with pleasure and when it is not, try to understand the pain.
We need to see in writing an invitation, an opportunity to learn something about who we are, how we have learned to put our education to work, and how we will write as lawyers.