Lawyer as
Writer
Can Writing Be Taught?
A writing workshop must begin somewhere. But where?
Can writing, of whatever kind, legal or otherwise be taught? And how
is one to go about doing it, even if we assume it can be done? And what
are the student and teacher to do about the fact that we come to the
writing we do as lawyers with all sorts of notions, ideals, beliefs,
values, sentiments, and feelings? Coming to this workshop you are already
a "writer." How are we to teach and learn the stuff that we
already claim to know and to be?
Some skills are difficult to teach. I suspect they are difficult because
they cannot be reduced to their "technical" components. If
writing involves an element of character or what might be called virtue--it
is called "voice" in the literature on writing--this element
of writing cannot be learned or taught as a "basic" skill.
Legal writing, legal counseling, and legal ethics all entail this element
of character, and something we associate with virtue. In writing we
know it as "voice." Ethics, for example, is hard to teach
and learn because ethics is another name for character, and character
requires virtue. I hold to the notion that writing, and learning about
it, and doing it, is as much a matter of character as it is skill in
the technical sense.You may find that you are mistrustful of teachers
who claim that what others call skills must be learned as acquired character.
Teaching character--at least "about" character--can be done,
but it's not done without resistance.
It is an open question whether we can actually teach the kind of character
that writing and ethics require. And it is for this reason, among others,
that we should expect some uneasiness, if not outright turmoil, when
we try to learn skills that embody a significant element of character.
It is not clear how one "learns" to effectively, persuasively,
and evocatively, embody a language they already "know" into
a written text, whether the text be a legal brief, a fictional short
story, or a novel. About the only thing we agree on when it comes to
writing is that so-called "basic" or technical writing skills
can and should be taught. And what lies beyond the technical "basics"?
Good writing. Strong writing. Effective writing. Persuasive writing.
Creative writing. Writing that reflects the "voice" of the
author. It is when we move beyond basics and begin to write and make
judgments about "good" writing, that we distinguish between
writing that is powerful and weak, clear and fuzzy, writing that reflects
the author's "voice" and writing that is so impersonal that
the author's "voice" is hidden.
Notes
Our writing seems to have been a rather long-standing sore point
in the profession, and so troublesome to the lay public and politicians
that they have sometimes attempted to mandate that we lawyers write
in "plain English." The assumption is that it takes an act
of law to compel us to write to be understood, to produce documents
and texts accessible to clients and lay readers.
In legal writing
texts that we use in legal writing programs, I find an intensive focus
on the mechanics of writing, and even an effort at jurisprudence, but
not much recognition of the many ways we come to be writers, and the
varied, defensive, and fearful human beings that set out to make themselves
proficient in legal writing. Legal writing seems unwilling to ask how
we gain power with words, how we become curious about the use of technical
and instrumental languages, how we use words as an ordinary skill of
everyday life, and how this ordinary, everydayness of language use can
be translated into a professional skill.
For the student,
the story-depraved world of legal writing contends that you must give
yourself over to a legal mind that can push the pen, watch the movement
of the cursor, shape the thoughts, in pursuit of life-less words and
formal arguments and pre-determined structure, all so that you can have
your writing read as a lawyer. Is this any way to make writing central
to your craft skills as a lawyer?
Much of my work in the last decade has focused on narrative. Legal
narrativists are interested in writing because stories depend on writing,
on the literary power of language used well. And we are interested in
the intricacies of writing, writing techniques, figures of speech, writing
that communicates, and writing that changes minds. We are interested
in stories and writing because we are curious about lawyers and their
work, how they reason through a problem, and how they put their reasoning
to work in the language and writing they use.
As Steven Stark observes, we get cut-off from the best avenue for conveying
the meaning of law when we forego the use of stories.
[A]nyone who writes about rules and not facts is going to
have a difficult time composing an appealing piece. What intrigues
most readers are stories about people; a story is usually the
development of a character. For example, what would make the
story in Erie v. Tompkins interesting to the typical reader is
what happened to Tompkins, not what happened to the doctrine
of Swift v. Tyson. But the legal writer must ignore the attractive
part of a story and be content instead to discuss the application
of rules in a way that tells lawyers what doctrines they should
follow. Even Joan Didion would have trouble doing much within
those constraints. [Steven Stark, Why Lawyers
Can't Write, 97 Harv. L. Rev. 1389, 1391 (1984)]
Linda Edwards, a legal writing teacher suggests that as lawyers narrative
may play a larger part in our work than we realize.
[T]he practice of law will require skill in both rule-based reasoning
and narrative reasoning. Rule-based reasoning values rational, analytical
thought, while narrative reasoning values creative, intuitive thought.
The best lawyers learn to integrate rule-based reasoning and narrative
reasoning so they can harness the power of each.
Because narrative reasoning is more dominant in our culture than
rule-based reasoning; however, the traditional law school curriculum
concentrates on rule-based reasoning to the seeming exclusion of narrative.
And because thought process is so fundamental to identity, law school's
emphasis on rule-based thinking can be disturbing. During the first
year of law study, many law students wonder whether they are losing
vital parts of themselves. It seems as if the ways they have always
thought and reacted are not valued in the law and indeed that law
study is requiring them to become different people.
If this sounds like your experience, do not be discouraged. Not only
will these other parts of yourself survive law school, but they will
be vital to practicing law. They will deepen your analysis and strengthen
your persuasion. They will serve you in other important lawyering
tasks too, such as counseling clients, working with witnesses, and
other third parties, presenting oral arguments to judges and juries,
putting together business transactions, and resolving disputes outside
the courtroom. [Linda Holdeman Edwards, Legal Writing:
Process, Analysis, and Organization xxiv (Boston:
Little, Brown and Company, 1996)]
"[E]xperiment
with different writing strategies and observe your own writing process.
What works well for you at each stage and what doesn't? Do you work
better if you dictate a draft first? Does free-writing help you? How
about charts or colored pens? Each writer's creative and analytical
processes are unique. Part of your goal in your first few years of legal
writing should be to observe as much as you can about your own process
so that you can adopt writing strategies that work for you." [Edwards,
Legal Writing: Process, Analysis, and Organization, at xxiii]
A student's hope: "I hope that the study of the law
does not sway me toward becoming a slick, facile writer, writing
to a legal audience of superficial tourists. I fear becoming
the equivalent of a commercial potter, a weaver of bad baskets,
a professional in the worst sense of the word--one who goes over
the hurdles readily and cleanly but with no real flare or zeal,
a proficient hack. I hope to be a thoroughbred, to live life
as an adventure, an art form."
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