Читать книгу The Lawyer's Guide to Writing Well - Tom Goldstein - Страница 11
Оглавление3 TEN STEPS TO WRITING
“What is writing for?” we ask a roomful of lawyers.
“Communication,” someone pipes up.
“Anything else?” we continue.
Blank stares. Determined to get an answer, we change our question.
“Quick now, how much is two plus two?”
Singled out by name, the lawyer hesitates, weighing the simplicity of the question against the odious possibility of a complex trick. Finally, the answer: “Four.”
“Good.”
Singling out another lawyer, we ask: “How much is ten times five?” “Fifty,” hurled back in the next breath.
“Very well, then,” pointing this time to a lawyer who has sat silent all afternoon, “how much is 1,324 times 967?”
The wiseguy, overcome with his brilliance, announces that the product is 57,246,589. Polite laughter, from us too.
We point again to the perplexed lawyer, who stares ahead gloomily, not understanding what has turned a writing tutorial at a law firm into a mathematics exercise from which he had fled years before.
“I cannot do that math in my head,” the wriggling lawyer grunts. “I'm no idiot savant.”
“What, then, should you do? We want an answer.”
“Multiply,” he replies, still resisting the obvious.
“Multiply where?”
“Here,” he says, stabbing at a notebook.
“Oh,” we say, “you mean on paper!”
We've engaged in this colloquy dozens of times to show that before communication is possible, the writer must know what he wants to say. Just as most of us cannot solve a complicated math problem in our heads, so most of us need paper to solve the problems that are put to us as lawyers. Before communication, in other words, comes problem solving.
In the first edition, we called this chapter “The Ten Steps of the Writing Process.” Jacques Barzun wrote us to complain of the unnecessary use of “process.”
How much anguish we would all have been spared had we known when we were young what we were supposed to do when we had to write. Told to compose an essay on Shakespeare, Charlemagne, or the Declaration of Independence, we gnawed at our pencils, wondering how to get words to resemble the essay example in our textbooks. The methodical writer constructed an outline, dutifully scribbling “I. Shakespeare, the Man.” The impatient jotted down thoughts in spurts and whooped when the last ruled line was filled in. The furtive pulled down the encyclopedia, copying the most relevant article, aware on occasion of the need to paraphrase, though unclear why. Wasn't the object of the exercise to make sure we stayed in at night? Any words on the page would prove the next morning that we had.
When the papers came back to us, the teacher annotated in bold marginal red about the need to avoid so many irrelevancies, or to organize our thoughts better, or to refrain from copying quite so liberally, but few teachers could explain what we were supposed to do and why we couldn't seem to do it. Even fewer acknowledged the pain of writing and showed us how to ease it.
Lawyers need to know what writing is about and how to vanquish the pain, without aspirin. You need to know that you are not the only one who suffers from chaos, uncertainty, and false starts. All writers do, and there is a sound reason for your difficulties in writing clearly and smoothly and logically on demand. That reason lies in the very nature of writing.
Polished writing requires many steps. First, in the composing stage, you think through a problem and get your thoughts on paper. Second, in the editing stage, you shape what you have written to communicate it to an audience. When you sit down to compose, you have nothing to communicate, nothing, at least, about a subject of even moderate complexity, for you have not yet figured out what to say or even what you know. Just because you stare blankly at a piece of paper does not mean that your mind is defective; it is not a warning to take up another line of work. It means that your work as a lawyer is about to begin. Writing is thinking on paper.
Though problem solving is the essence of a lawyer's job, that skill is barely taught in law school. Classroom discussions focus on small points. Indeed, one cannot expect more from classroom time: To take on a larger problem, students would have to write it out, and no time in the classroom is set aside for that. With few exceptions, law schools call on students to solve problems only on final exams, and by then class has been adjourned for the semester. Students thus learn little about writing from their exams. For the most part, the schools teach doctrine, not skills.
Different skills are required at the two stages of writing. The goal of the first stage, composing, is to solve problems; the goal of the second stage, editing, is to express the solution clearly, to communicate. Most instruction in writing emphasizes the second stage, by teaching rudimentary editing skills. Writing instruction, at least in law schools, rarely emphasizes problem solving or composing.
Skill in composing entails proficiency in thinking: First, you must have the talent to put concepts into words—to wield logic, use analogy, and employ metaphor. Second, you must exercise judgment—to evaluate, select, and weigh.
There is an accuracy that defeats itself by the overemphasis of details…The sentence may be so overloaded with all its possible qualifications that it will tumble down of its own weight.
JUSTICE BENJAMIN CARDOZO
In solving math problems, you need plenty of scrap paper once you move beyond simple arithmetic, because the solution is uncertain and mistakes are unavoidable. So, too, in solving a logical or conceptual problem, you will rarely get it right the first time. You stumble, you back up, you weave this way and that because you are hunting for the solution as you go. That is why the most successful writers are those with well-stocked minds open to experimentation.
Few people solve problems the same way. Carl Stern, former law reporter for NBC-TV, compared the approaches taken by two Supreme Court justices, William Douglas and Harry Blackmun, in their dissenting opinions in Sierra Club v. Morton, 405 U.S. 717 (1972). (The Court ruled that the Sierra Club had no standing to challenge the U.S. Forest Service, which had approved a plan to build a vacation complex in California.) Stern observed:
Douglas wrote passionately of “these priceless bits of Americana” which might be forever lost. He eulogized the “valleys, alpine meadows, ridges, groves of trees, rivers, lakes, estuaries, beaches, swampland or even air that feels the destructive pressures of modern technology and modern life,” of water ouzels, otter, deer, elk and bear, and of the Tuolumne Meadows and the John Muir Trail. He wondered who would speak for “the core of America's beauty” before it is destroyed.
Justice Blackmun, on the other hand, a one-time Harvard math major, computed the number of cars that were likely to pass a given point in the road each hour (300). “This amounts to five vehicles per minute,” he said, “or an average of one every twelve seconds.” Really, one every six seconds, he noted, because cars must return to leave the park. And that does not include service vehicles and employees' cars, he added, in his concern about preserving the beauty, solitude and quiet of the wilderness.
Two judges with one point of view, but vastly different writing styles.
Diversionary tactics on the part of lawyers come from their fear that their expertise won't seem very special if they write it down in plain English.
ANDY ROONEY
The ability to write is neither an innate talent nor a learned skill, concludes Susan R. Horton, an authority on writing. “It is,” she writes, “more a matter of attitude than of skill, and the attitude most essential is that of welcoming the mess and the mystery” that give life to writing:
If you are uncomfortable getting your hands dirty and your desk messy, you will cheat yourself out of the chance to discover something new and wonderful to say. Mess is material: material for thinking; for shaping into essays….
We know that “writing” does not begin when we first put pen to paper. Instead, writing is actually only the final stage of a long process. Ideas are born…partly in the act of writing—writing itself generates them—but they are also born out of that rich, primordial slime where we alternatively go after them with our big guns (like definition, compare/contrast, distinction-making) and lie in wait for them to raise their beads out of the smoky swamp like some Nessy. The truth is that all of the lists of procedures in the world will not help you write better if you do not acknowledge that the idea, the hypothesis, the new synthesis, the organization for an essay is likely to appear not so much as a result of applying a rigorous set of procedures, but just when you were not looking for it at all; as you stumbled half asleep to the front door at 4 A.M., to let the dog in, or out.1
Once you understand that composing is a messy hunt for a solution to a problem, you should feel less frustrated over the stubborn refusal of the first draft to write itself. You will find it slow going because you are wrestling with unyielding concepts, not because you are foundering on the words. That is why you cannot sensibly begin with a formal outline, as some teacher somewhere along the way insisted you must (even though an informal outline is usually helpful). A formal outline represents an ordered and logical structure, an organization that you will not be able to impose until you have solved the problem.
Since composing is thinking on paper, a first draft is, at best, the scrap-paper solution to your problem, showing the signs of trial and error. You can never count on a first draft to communicate your solution to your intended audience.
From these considerations emerge two key principles to mastering writing:
Compose early.
Edit late.
There is no trick here, but adhering to these two simple principles will have a magical effect on your writing. Solve your problem as early as you can, and delay rewriting and editing as long as you can. You need this intermission to forget about composing and problem solving, to gain some distance from your draft, and to prepare yourself to edit. As you'll see, the secret to editing is to come to your draft not as its writer but as its reader.
To write well, the writer must take ten steps in two stages. In stage one (steps 1 through 6), the writer searches for ways to solve the problem. In stage two (steps 7 through 10), the writer dresses up the solution to communicate it clearly to the reader.
1 Develop a theory; write it down.
2 Research; take notes.
3 Jot down a rough outline.
4 Reassess your theory; explain it to yourself on paper.
5 Set down a formal outline.
6 Compose.
7 Reorganize.
8 Rewrite.
9 Edit and edit again.
10 Proofread.
For the most complex assignments, we recommend that you proceed step by step. For less complex assignments, you may need to jumble the steps or even take two steps at once. Often, for both simple and complex assignments, you may need to repeat some steps several times.
Here, we briefly describe the ten steps; we discuss them at length in later chapters.
Step 1. Develop a theory.
You must begin with some idea of direction, purpose, or goal, though you need not know exactly how you're going to get there. When Jessica was in the eighth grade, her history assignment was to write a thousand-word essay on “the impact of European colonialism on African economic development.” She didn't know quite what that meant, and she didn't ask. Consequently, her research amounted to no more than a random collection of quotations that she jerry-built into an answer. She gave the draft to her father, the writing teacher. He didn't take kindly to it. She didn't take kindly to him. Moral: Know where you're going.
Ordinarily, step 1 in legal writing is the easiest step because the nature of the case or your discussions with the client or a supervising attorney determine the objective: “We want summary judgment”; “he breached the contract”; “let's see if we can get specific performance”; “do we have a good case of copyright infringement?” You will surely fail if you do not know at the outset what your aim is. If you are unsure of the aim, ask. Lawyers who fail to ask questions, fearing to look stupid, are doomed to prove that they are stupid when they turn in their drafts. Of course, you want to be intelligent about the questions you ask. The young lawyer who wonders “What exactly is summary judgment?” will raise a supervisor's eyebrow. But to ask “Why do you think we should seek summary judgment in this case?” will force the supervisor to articulate a theory, a starting point for the work to come.
Step 2. Research.
With a goal in mind, you can begin to research. You are not looking just for quotations to adorn your brief. Writers absorbed in hunting for quotations sacrifice time for thought; the more sparingly you quote, the better your writing. Research should stimulate thought; you read cases not to write a history of the law but to force your mind to respond to something relevant, to begin thinking about the problem at hand, to let ideas flow.
As you research, keep your mind open to all possibilities. In a letter to a friend who had complained of an inability to write, the poet Fried-rich von Schiller offered advice that remains sound:
The reason for your complaint lies, it seems to me, in the constraint which your intellect imposes upon your imagination…. Regarded in isolation, an idea may be quite insignificant, and venturesome in the extreme, but it may acquire importance from an idea which follows it; perhaps in a certain collocation with other ideas, which may seem equally absurd, it may be capable of furnishing a very serviceable link…. In the case of a creative mind…the intellect has withdrawn its watchers from the gates, and the ideas rush in pell-mell, and only then does it review and inspect the multitude. You worthy critics…are ashamed or afraid of the momentary and passing madness which is found in all creators, the longer or shorter duration of which distinguishes the thinking artist from the dreamer. Hence your complaints of unfruitfulness, for you reject too soon and discriminate too severely.2
How the mind solves a problem remains mysterious, so no one can give you a formula for telling how many pieces of the puzzle you need and how to lay them out. But we do know that it is crucial to begin the writing process early. You need not actually sit down to compose, but you must have the project in mind. You need time for conscious reflection and for subconscious rumination. That is why thinking about a memorandum due on Monday morning must not be left for Sunday night; you need to have time for reflection, for mental processing, for second thoughts, or for intermediate solutions that lead to still better solutions. Even if you do not have the time to start composing until Sunday night, try to read the assignment and begin thinking about it the day you receive it.
Step 3. Jot down a rough outline.
Before you progress too far in your research, you should begin to jot down notes for a rough outline. This rough list will help you direct and organize further research. You will not yet be able to see the entire structure of your solution, so you cannot compose a formal outline. But you should begin to list the topics you plan to discuss. Later, when you know what all your topics will be, you can rearrange them into a logical sequence.
Step 4. Reassess your theory.
Your initial theory of the case suggested certain avenues of research. Your research may have suggested new avenues. You should constantly be asking whether your initial assumptions were correct or whether your research requires you to modify them.
Step 5. Set down a formal outline.
When you are satisfied that your research has given you the main direction for your document—and that you have not overlooked any byways—you should write a formal outline. By now you will know, for instance, that there are two elements to proving copyright infringement, that courts have accepted six circumstances in your case as proof of those elements, that there are several procedural hurdles, that you have ways to surmount each, and that none of the available defenses is well-founded. You may have solved your problem already, or you may solve it as you are working out your formal outline. Don't become too attached to this outline, however; there's a good chance that it will not be the final one.
Step 6. Compose.
You have completed five steps, and only now should you begin to compose. Now you will see whether your solution to the problem will work. If you are not yet sure you have a solution, now you will discover what you need to create one.
The time it takes to reach this step depends on the complexity of the assignment and the amount of research you must undertake, but you must always leave plenty of time for steps 6 through 10. As you compose, you will learn what you know and, even more important, what you have yet to discover. The sooner you start writing, the sooner you can see the holes in your argument. You can read statutes and cases forever, but you will not know whether your reading is sufficient or germane until you try to make sense of it by writing your first draft.
When you now sit down to compose—or stand up, if you are like Justice Holmes, who said “nothing conduces to brevity like a caving in of the knees”3—you may feel blocked. We distinguish two kinds of writer's blocks. The first is the psychological difficulty many people have in beginning any protracted and solitary intellectual enterprise. The second kind of block is conceptual: it is a signal of inadequate preparation. You stop because you do not have the information you need, or because you cannot discern logical connections within the materials you have assembled. Once you identify the source of a conceptual block, you can stage unblocking maneuvers. You may need to do more research or more thinking about your argument (How does this fact connect to that rule?).
Again, the earlier you start to compose, the earlier you will encounter these blocks, and the more time you will have to do more research, interview more witnesses, talk to the client, or rethink some aspect of the problem. If you have waited until Sunday night, you will be denied these options, and your document will be empty—or late.
You can also learn to write around small gaps in your knowledge. If you are missing a minor fact, one whose presence will not affect the concepts you are developing or their consequences, leave the fact checking for later. Once you begin to compose, you should not interrupt your train of thought to locate a date, a name, a middle initial, a line of cases, or the “right” word. Give yourself as much uninterrupted time to compose as possible.
Here's a simple trick that journalists use. When they are momentarily stumped, they jot in “TK,” meaning “to come.” So a sentence in a first draft might read: “On May TK, a witness, TK Jones, saw the defendant step out of the drug store wearing, in Jones's words, ‘TK.’” The three missing points (the date, Jones's first name, and Jones's precise words) will not affect your argument, nor will their absence prevent you from proving your point. The important thing is to write. Don't hold back the big ideas; don't bog down in minutiae. Shut your door, turn off your phone, keep the radio low, tell your kids to play in the street, don't get up to sharpen a pencil or look up a word in the dictionary— just write.
When you are composing, try not to even look at your notes. You have read through cases, previous memos, and the record of the case, and you have a general impression of the facts and the law. Let that impression suffice as you strive to make sense of the whole. Usually the important points will rise to the surface, and you'll avoid becoming bogged down in details. You can always go back later and add what's missing.
Step 7. Reorganize.
Let's assume you have solved your problem. You know why summary judgment should be granted, why your client's copyright has been infringed and how to prove it, why your client was not an inside trader. When your draft is done, you have completed your problem solving. Now it remains to communicate that solution to your readers.
The first draft is your solution to the problem; the final draft must be the reader's. What may be clear to you may appear ambiguous to a reader who does not know how you think, how you arrived at what you wrote, and what you intended. Your words are the reader's only window into your thinking. When you edit your work, you must put yourself in the reader's place—you must come to your work without any preconceptions about its meaning.
Your business as thinkers is to make plainer the way from some things to the whole of things.
OLIVER WENDELL HOLMES JR.
That is why you must edit late, why you must allow as many hours or days as possible to elapse after you have reorganized your document so that you still have time to prepare a final product on deadline. For as time passes, as your words grow colder, your memory of what you intended will dim. The halo of meaning will dissipate. After enough time has passed, you will read the document more as an outsider would, seeing the ambiguities and having to guess at the meaning. Edit a paper five minutes after you have drafted it, and you will not see how it flunks its ultimate mission, to communicate your solution to its readers. Edit five days (or even five hours) later, and you will begin to see which sentences and paragraphs are murky.
Your schedule will never permit the lengthy intermission John Kenneth Galbraith enjoyed during his work on The New Industrial State. He was about to send the manuscript to his publisher when President Kennedy called, asking him to serve as ambassador to India. Galbraith put the manuscript in a drawer and returned to it two years later, appalled to discover deficiencies he had never imagined. The best thing for a writer, he concluded, was to accept a long overseas appointment.4
Failing that, allow as much time as possible for the document to sit, out of sight and out of mind. That is another reason that you should begin your writing early. The earlier you write, the more time you will have to clear your mind before you begin editing.
Editing well—transforming your writing from draft to polished prose—requires several steps; it cannot be done in a single sweep of the red pencil across all the pages. Your first concern is whether your document proceeds in a logical order. Read through the entire draft and look at the sequence of the major parts and the sequence of topics within each of the major parts. To help you keep track of the sequence, jot down in the margin of each paragraph its main points and compare these marginal headings throughout the document. You should quickly see what belongs together and what is out of order.
Don't fret if much of your draft is jumbled. In fact, be suspicious if everything seems well ordered. Problem solving is messy, and as you compose you will rarely think of every issue and every fact in time to place them just where they belong.
Move your sentences and paragraphs around. Draw arrows; use scissors and tape or the cut-and-paste features of your word processor. To spare yourself extra work, avoid the temptation at this point to correct grammar, sentence structure, punctuation, word choice, and the like. Concern yourself with organizing the whole. Fixing a sentence or paragraph before you move it will almost surely require you to modify it further once you have put it in a new place.
Confusion of expression usually results from confusion of conception. The act of writing can help clarify one's thoughts. However, one should spare the reader having to repeat one's own extrication from confusion. The object is to be clear, not to show how hard it was to be so.
GEOFFREY C. HAZARD JR.
Step 8. Rewrite.
Read through the document again. This time, look at the major elements: introduction, conclusion, topic sentences, headings, transitions. Does your introduction give your readers a road map for the entire document? Is your conclusion obvious and inescapable? Does each paragraph contain only one major point, does the topic sentence state that point, and do the sentences that follow make the point? Do your headings and transitions tie your paragraphs together? Will the reader understand why paragraph 24 follows paragraph 23?
Although you know that you have solved the problem assigned to you, the reader remains to be convinced. You have satisfied yourself; now satisfy the reader.
Step 9. Edit and edit again.
In successive readings, look for specific types of writing problems: word order, word choice, grammar, passive voice, and other impediments to clear communication. Editing is not simple work, and you will not be able to identify and fix all the errors and difficulties in one pass. You should edit until you are satisfied, or until you run out of time. You should press on friends and colleagues as many of your documents as their time and patience will permit. No matter how long you let your own writing lie inert, you will still retain some faint wisp of meaning that your audience can never have. An outsider who tells you that something is unclear is therefore a valuable ally. There's little point in arguing with someone who says, “I don't understand this.” You may fully understand it, but your understanding is not the goal. If one person misunderstands, others may as well. Rewrite some more.
Step 10. Proofread.
When you have finished, either because you have exhausted your patience or your deadline is fast upon you, you must read the document at least once more, to ensure that the final product—the actual paper to be delivered to your reader—is as formally perfect as you can make it. In the days before word processors, proofreading was generally understood to be vital: typists and typesetters could make mistakes, so words might have been misspelled, punctuation might have been missing, a whole line might have been dropped.
Today all too many writers are gulled into complacency by the seeming infallibility of the computer: what you see on the screen is presumably what you get on the printed page. Alas, the correspondence between screen and printer is not always complete, and the writer who refrains from proofreading forgoes one last opportunity to perfect what the reader will see. You would not press a suit for work and then forget to put it on before leaving for the office. Neither should you fail to check that your edits have been faithfully transcribed on the final printed page.
The hardest lesson of all remains. You must learn how to allocate your time between research, composing, and editing. We have talked to enough lawyers to conclude that most misconceive the relative importance of these phases of producing a document. When presented with novel issues, most lawyers spend between half and three-quarters of their time on research. That is a mistake. Research in a vacuum, without the hard thought that comes from composing, is often a wasted effort. The information you have gathered is useless if you do not effectively communicate it to judges, adversaries' lawyers, or clients. If you are responsible for producing a first draft from scratch, you should devote no more than 30 percent of your time to research and up to 40 percent to composing. During your composing time, you may have to break away to conduct more research. That's not only permissible, it's imperative, as long as you are continuing to compose while researching. The remaining 30 percent of your time should be spent editing. Editing is that important, and it's likely that you will fail in your most important task of effectively representing your client if you do not reserve the time to polish your prose.
Writing is hard work. But that's what you do. It's why you're paid.
