The Endangered Art of Writing—Tools and suggestions for attorneys and related professionals
By Dr. John F. Sase
with Gerard J. Senick
“[E]ven passable writing involves rewriting again and again and again.”
—Deirdre N. McCloskey, “Economical Writing” (Waveland Press, 2nd ed., 2000)
Prelude
In this month’s column, we will explore the endangered art of writing in the fields of Law, Economics, and related professions. This art includes organization, sentence structure, spelling, punctuation, and grammar, among other elements. In my (Dr. Sase) work as a consultant, attorneys have told me about the problems that arise when they hire law-school graduates who cannot write a complaint, a brief, interrogatory questions, and other standard documents of the profession. In addition, the problem of diminished literacy in the workplace has spilled over to clerks and other law-office staff. Who should take the blame for this problem? As an instructor of Economics who grades the written work of both undergrad and graduate students, I have witnessed the growth of this problem in recent years. As educators, we continue to assess written communication skills. It is important that students write effectively to demonstrate their ability to communicate and to think critically. Unfortunately, papers with excellent content, grammar, and style, often raise flags of suspicion as they may have been purchased from term-paper mills on the Internet. These flags are raised because the general quality in student papers normally is less than excellent.
We can trace the roots of incompetent student writing to our public-school systems. A few decades ago, they abandoned the diagramming of sentences in English classes in favor of more creative approaches to teaching the language. Since then, children progressively have spent more time in front of the television and in surfing the Internet. More recently, colleagues and I have been teaching the “products” of the No Child Left Behind Act of 2001. The Act is based on the belief that establishing high standards and measurable goals will improve student outcomes. However, the enforcement of the Act has led to degeneration. Now, teachers teach to standardized exams like the Michigan Educational Assessment Program (MEAP). As the ability to pass standardized exams has increased, critical thinking and writing proficiency has decreased. As a result, a segment of law-school applicants can perform well on the graded, objective portions of the Law School Admission Test (LSAT). However, the thirty-five-minute writing sample that is administered at the end of the LSAT is not graded by the testing company before sending the sample to selected law schools. Consequently, senior attorneys are growing more aware of the problem that is faced by college instructors three or more years before the hiring partners or proprietors of law firms.
Writing for a law review while in school brings the best student writers to the forefront. However, what about the others? Established attorneys should not have to take on the task of teaching the rudiments of professional writing to their staffs. However, given the investment made to recruit and hire new talent, an open dialogue with an appropriate take-away may benefit entire offices. In the spirit of professional development within the larger legal community, which includes forensic experts and others as well as attorneys, we present this submission. Please feel free to copy and share it your office and/or classroom.
Introduction
Some attorneys and economists do not like criticism about their writing. However, many of us never rewrite our documents. This leads to problems. In contrast, professionals who write will grow and develop through negative as well as positive critiques. In addition, taking the opportunity to revise their works multiple times before submitting them will help to ensure the creation of more effective documents.
Throughout the legal community, writing stands as the trade of professionals. However, poor writing causes more documents to fail in achieving their purpose than does hasty research or sloppy statistics. We should remember that ninety-five percent of cases settle before going to trial. Much of the credit for the success of the attorneys involved goes to well-written, persuasive documents submitted to the court and to opposing counsel.
The Ground Rules
Almost any young attorney or staffer can develop the skill to write well, or at least better. Often, traditional rules of writing can help. However, the continuation of deficient writing habits can injure emerging practitioners in the pursuit of perfecting their skills.
The first objective in writing any document is to Keep It Short and Simple. With practice, professionals in any field can trim their initial drafts by more than one-fourth. This means that the writer may need to start with fourteen or fifteen pages in order to draft a legal brief of ten. The process of writing resembles the work of baking, carving, and other crafts – focus, ability, and discipline must occur in order to achieve the desired quality.
As with music, painting, or any other art, competent writers naturally reflect their spirit and mood within their work. This is an important point to remember when authoring persuasive legal documents. Therefore, writing that sells an idea needs to possess the greatest clarity. In doing so, effective writers reach a level of clarification such that their readers comprehend what the authors intend. These readers will do so in a way that they cannot mistake the intent of the writer. Remember: for all types of documents, readers are sovereign.
Our Strange Language
Apart from a few Latin terms, the legal community does not communicate in the language of ancient Rome. The Modern English that we use currently has evolved from a diversity of languages. As a result, established rules of English grammar tend to be factual rather than logical, an issue that befuddles many professionals working internationally who use English as their second language. We might tell them that our rules for speaking and writing differ from one another. However, the rules come from observation in both cases. Once accustomed to the language, one finds it easier to spot poor writing and to determine where the work has strayed. If writers read the work of another, they will find that they can sense it as well. Experienced attorneys can articulate why a poorly written document sounds awkward and unprofessional.
Attorneys, experts, and others find and define quality standards for style through the evolution of cumulative works by authors who are considered to be excellent writers in their fields. We do not set our style standards from rule books. Such books rarely keep up as our language evolves. The absence of books that reflect current usage can lead to a noticeable lack of clarity and grace that leaves readers frustrated.
All professionals working in the field of Law need to remember that basic rules guide even the most technical of writers. A well-written document should meet the intended goal while stirring some passion for persuasion within the author. As writers, we either must admire or admonish what we produce. In other words, “We have got to love it or leave it.” Otherwise, what reactions can we expect from a readership of judges and opposing counselors?
Tools, Techniques, and Fluency
Before drafting any document for court, we must gather the tools that we need for this craft. These tools include a general outline, notes for revision, paper for scratching, and a word file that is open on the computer screen. Some in the legal arena prefer to write an initial draft using a pen and a pad that they can carry around. However, when writers commence with their edit, they need a good dictionary, such as a Merriam-Webster (http://www.merriam-webster.com/), and a thorough thesaurus like the one by Roget (http://education.yahoo.com/reference/thesaurus/). However, words are the primary tools of the work.
The major challenge that attorneys and others face after reading, thinking, and strategizing comes in the writing. If we over-intellectualize the topic, fluidity may elude us before we even set pen to paper. Therefore, we need to ask, “When should we start writing?” Experts on writing agree that it is better to begin earlier rather than later. Nevertheless, many writers feel dread when faced with the prospect of sitting down at the keyboard. As a result, the first draft is the hardest one.
Research is writing and writing is research; they are inseparable. Neither needs to be linear. As one is researching, a well-tested strategy for overcoming obstacles is to write snippets on Post-It Notes and to jot down essential ideas on index cards. The notes and cards can be arranged on a wall or bulletin board. The linearity of a document comes from assembling the mosaic of small pieces-the free-form jigsaw puzzle that evolves into a finished document.
Now, we begin to write. If we knew how thought flows within the creative process, we could program computers to do our writing. However, we do not, perhaps for the better. Though we seldom know for certain where human creativity comes from, it continues to survive. The act of writing forces the questions that we should ask about the facts relating to our document. Some writers claim that their guiding torch comes through the question “So what?” Resultantly, our writing will improve the more that we ask and answer this question.
Writers achieve flow – literary fluency – through work, sweat, and grit. The path to fluency includes invention, arrangement, and style. Of the three, style may be the easiest to learn yet the hardest to perfect. However, for every one of us, style begins with fluency – getting our thoughts down on paper or into a computer. Style ends with our last rewrite, but when should we stop our revisions? After eliminating all of the muck from our writing, our revision should come to a climax when we reach an acceptable level of clarity and satisfaction.
Helpful Hints for Revision
Attorneys and their experts need to remember that they must write to an implied audience of judges, jurors, and other attorneys. If one can identity a specific person, then so much the better. Furthermore, this focus must increase and tighten during revision. As tedious as it may seem, style flows from the act of revision, a process that any writer can learn. Essentially, revision involves as many rewrites as possible over as long of a time as feasible. This may explain why college or law-school papers that are written with the help of Red Bull the night before they are due usually lack merit. With last-minute papers, students claim that they have no time for complete, multiple rewrites. However, reaching and persuading the implied reader requires a focused clarity that evolves during revision. Therefore, as you rewrite, envision your critical readers and look them square in the eyes.
In a large firm, the duty of copyediting may be spread among many people. In a small practice, it may fall to a single person. In respect to the techniques of revision relevant to those in the field of law and related professions, Amy Einsohn has prepared “The Copyeditor’s Handbook: A Guide for Book Publishing and Corporate Communications” (University of California Press, 3rd ed., 2011). Einsohn presents a practical manual for revising professional papers to all who wish to further their knowledge and develop their skills. She explains the function of a copyeditor, what to look for in editing drafts, and how to develop sound editorial judgment. For example, Einsohn discusses the levels of copyediting, which include such aspects as the quality of the writing by the author, the intended audience, and the budget available.
Keep It Focused, Clear, and Interesting
Specific kinds of reports, such as Interrogatory Questions, demand a more rigid boilerplate structure in order to control cost. In writing all other documents, it is important to maintain reader interest and spare your audience the duller products of your brain. Furthermore, restatement of well-known facts, routine passages, and extensive, longwinded introductions and conclusions tend to bore readers. Get to your point and successfully answer the question “So what?”
As in teaching or acting, writing is a performance. Though some attorneys may rely upon staff members to prepare a document, it is critical to keep to the same author’s voice – that of you, the attorney or forensic scientist – and to maintain the integrity of self as the writer. This practice determines the tone and much of the clarity of your document.
In any written work, each paragraph should make a point. Most professional documents consist of some sort of an introduction, a development, and a summary/conclusion. A writer builds each section by assembling paragraphs that are not filler. A paragraph should discuss one topic that contains a single point. Often, a short paragraph that makes no point causes the reader to leap ahead. However, long paragraphs can cause as much trouble. Remember the old punch-line, “The best way to eat an elephant is one bite at a time.”
A Few Words on Presentation
If one picture, graph, or table is worth a thousand words, then attorneys and experts should endeavor to make them readable. The use of these kinds of word substitutes remains a part of writing. Therefore, the same rules apply. In using substitutes, writers need to keep their implied readers in mind, present documents with clarity and brevity, and use such devices only as necessary.
One can find many excellent books on the subject of presentation. These include “Presentation Zen: Simple Ideas on Presentation Design and Delivery”
