Vol. 42 No. 5
By Bryan A. Garner
Bryan A. Garner is the author of The Elements of Legal Style (Oxford), The Redbook: A Manual on Legal Style (West), Legal Writing in Plain English (Chicago), and many other books on writing and grammar. He is the editor in chief of Black’s Law Dictionary.
What’s your biggest challenge as a writer? It’s figuring out, from the mass of things you might possibly mention, precisely what your points are—and then stating them cogently, and with adequate support.
Although this advice might seem obvious, legal writers constantly overlook it. The result is a diffuse, aimless style. And even with your point well in mind, if you take too long to get there, you might as well have no point at all. Only the most highly motivated readers will work to grasp your meaning.
That’s where law school comes in. Every law student reads plenty of diffuse writing and is expected to distill the main points from them. You’ll read old cases that take forever to make a fairly straightforward point. You’ll read law-review articles that take 50 pages to say what might be said more powerfully in three. And as you read these things, your incentive for gleaning their main points will be high: your future in law depends on it. In other words, you will work as hard as any experienced legal reader to break through opaque prose. You’ll simply have to.
Take a California judicial opinion issued just after the turn of the 20th century, a period still heavily represented in casebooks. See if you can follow the point:
And in the outset we may as well be frank enough to confess, and, indeed, in view of the seriousness of the consequences which upon fuller reflection we find would inevitably result to municipalities in the matter of street improvements from the conclusion reached and announced in the former opinion, we are pleased to declare that the arguments upon rehearing have convinced us that the decision upon the ultimate question involved here formerly rendered by this court, even if not faulty in its reasoning from the premises announced or wholly erroneous in conclusions as to some of the questions incidentally arising and necessarily legitimate subjects of discussion in the decision of the main proposition, is, at any rate, one which may, under the peculiar circumstances of this case, the more justly and at the same time, upon reasons of equal cogency, be superseded by a conclusion whose effect cannot be to disturb the integrity of the long and well-established system for the improvement of streets in the incorporated cities and towns of California not governed by freeholders’ charters.
What’s the court saying there? In a highly embellished style, it’s simply saying, “We made a mistake last time.” That’s all.
But if you add sentence after sentence to that one—filled with syntactic curlicues—you end up with an impenetrable morass of words. The only readers who will bother to penetrate it are those who are paid, probably handsomely, to do so.
However willing you as a reader might be to pierce through others’ obscurity, you as a writer must insist on never putting your own readers to that trouble. On the one hand, then, you’ll need a penetrating mind as a reader: you’ll need to be able to cut through overgrown verbal foliage. On the other hand, you’ll need a focused mind as a writer: you’ll need to leave aside everything that doesn’t help you communicate your ideas instantly to the reader’s mind.
That’s the key to becoming an effective legal writer.
Once you have your points in mind— even if they’re not fully formed—you’re ready to begin. But you’re not yet ready to begin writing sentences and paragraphs. You’re ready to begin an outline.
Although writers work differently and although you’ll experiment with many methods before you settle into certain habits, one thing you’ll need is a way of putting down your yet-unformed ideas in some way other than a top-to-bottom order.
It’s useful to think of writing as a four-step process. First, you think of things that you want to say C as many as possible as quickly as possible. Second, you figure out a sensible order for those thoughts; that is, you outline. Third, with the outline as your guide, you write out a draft. Fourth, after leaving the draft aside for a matter of minutes or days or months, you come back and edit it.
The poet and literary critic Betty S. Flowers once named each of these four steps: (1) Madman, (2) Architect, (3) Carpenter, and (4) Judge. Each of those characters inside your brain has a role to play, and to the extent that you slight any of them, your writing will suffer.
If you believe, for example, that you can “rough out” a draft by simply sitting down and writing it out, you’re starting at the Carpenter phase. You’re asking the carpenter to dream up the ideas, sequence them, and verbalize them simultaneously. That’s a tall order. People who write this way tend to procrastinate.
If you believe that you can begin with Roman numeral I in an outline, you’re still asking a lot: the Architect will have to dream up the ideas and sequence them simultaneously. And whatever your I–II–III order happens to be will probably become fossilized in later drafts. Most writers’ minds aren’t supple enough to allow IV to become I in a later draft, even if it most logically should come first. It’s hard to see this if it’s already been tagged “IV.”
That’s why it’s so critical to allow the Madman to spin out ideas in the early phases of planning a written piece. In a perfect setting, the ideas will come to you so rapidly that it’s hard to get them all down as your mind races.
One way of doing this—and of getting yourself into this frame of mind—is to use nonlinear outlining. Among lawyers, the most popular type of nonlinear outline is the whirlybird, or whirligig. It starts out looking like this:
First, you fill in the blank in the center with a shorthand name for your writing project. Then you begin thinking of ideas: the more the better. For every major idea you have, there’s a major branch off the center circle. For supporting ideas, try branching off from the main branch. Everything you might want to mention goes into the whirlybird—which has no top and no bottom. You’re striving for copious thoughts without having to worry about getting them in the right order.
Once you’ve finished a whirlybird— whether it takes you ten minutes or ten days—you’ll probably find it easy to work the elements into a good linear outline. You’ll know all the materials. It will just be a matter of organizing them sensibly.
And once the Architect has finished working, the Carpenter’s job—the one that writers most often procrastinate on—becomes relatively simple. It’s just a matter of filling in the blanks. Further, the Judge will be able to focus on tiny matters of form, and that’s what the character is best suited to. The Judge shouldn’t be having to think on several levels simultaneously, as happens when not only the citation form but also the overall structure is flawed.
If you give me a pile of writing samples, I’ll critique them according to this paradigm. A writer who allows typos in the final draft needs work on the Judge. A writer who uses no headings, and for whom it would be difficult to devise headings once a draft is done, needs work on the Architect. A writer whose prose is “correct” but dry and dull need work on the Madman.
Perhaps the most critical phases— because they’re the most unpredictable and mysterious—are the first two: Madman and Architect. They will determine how original and insightful the writing is. But each character must have its time in the lead. What you don’t want is to have one dominate so much that the others get squeezed out. The writing will suffer.
So, as you can see, writing well is much more than getting the grammar and spelling right. Those are matters for the Judge, who, in the end, will tidy things up. But remember that the Judge part of your brain won’t contribute many interesting or original thoughts.
Although you might fear that you wouldn’t have time to go through all four phases, try it: it’s one of the surest ways to good writing. In a one-hour span, you might spend ten minutes on Madman, five minutes on Architect, 25 minutes on Carpenter, and ten minutes on Judge—with short breaks in between. That’s a great way to spend an hour. But it won’t simply happen. You have to plan how you’re going to transform nascent, ill-formed thoughts into something you can be proud of. n