Prior to entering the legal world, I was a theatre major. Though I did some acting, I preferred writing. In my first playwriting class, my professor proclaimed the following: “You do not learn how to write plays. You learn how to write the play that you are writing.” Though I understand him now, at the time I was frustrated that I would ever competently write a script worthy of the business called Show.
Legal writing, too, can at first be frustrating. What is a legal brief? Or a law school essay exam? And why can’t I just write the same way I did in high school? Legal writers can learn a lot from writing for the theatre. Don’t believe me? Watch a good litigator in court. Watch his or her well-developed sense of the dramatic. Likewise, a good legal writer can learn much from dramatic writing.
Know Your Audience
In the late 1950s, Rodgers and Hammerstein, the acclaimed musical-writing duo, had a number of successes to their credit: Oklahoma!, Carousel, South Pacific, and The King and I. So when their new play premiered in 1959, do you think it was some heady, post-modern play about the futility of life? No! They wrote a musical about the charming von Trapp family in The Sound of Music.
Why do this? They knew their audience! The audiences for their earlier successes had come to expect a delightful diversion, with a dash of topical social issues, but nothing too challenging. They were rewarded with success at the box office and at the awards’ stage.
As a legal writer, you have an audience too, for every single assignment in law school and beyond. In law school, the professor is your audience; in practice, the Court is frequently your audience. So know your audience. Especially in law school, try to get a sense for what that professor likes to see, what her biases may be. You can observe this in class, ask former students, or question the professor herself. Knowing how to best tailor your arguments to your audience will pay dividends when grades come out.
Crappy First Drafts
Law school tends to attract students with type-A personalities or those who are perfectionists at heart. Perhaps you are one. And for perfectionists, legal writing can be incredibly daunting. It can often seem like there’s only one way to phrase a winning argument. But we are encouraged to write what Anne Lamott called “crappy first drafts.” (I’m paraphrasing.) So ignore “writer’s block” and start writing!
When you review your first draft, go easy on yourself. In fact, I encourage you to laugh! (I couldn’t be more serious.) You probably wrote some truly awful arguments. But what you’re trying to do is tame the logical, exacting Censor in your head. This is the part of your mind that serves you well in legal reasoning, but can inhibit you when the time comes to commit your arguments to paper. You’ll find that it then becomes much easier (and quicker) to write the second draft.
It’s Not Whose Story You Tell, But How Well You Tell It
Some great stories can get an audience to root for the villain. The television show Breaking Bad famously seduced its audience into rooting for its hero, despite his increasingly heinous deeds.
Whether in law school or in legal practice, there will be times where you are asked to make an argument with which you do not agree, or you may have an unsavory client. Some measure of self-doubt is important when assessing a fact pattern, but once you start writing – I’m thinking primarily of briefs – you become an advocate, free of self-doubt. Self-doubt will creep into your writing, weakening it with phrases like “I think that maybe…” which contribute nothing to your idea. Professors and judges are looking for clear, confident writing that shows a competent analysis of a fact pattern. Trim adverbs and fluff phrases.
Kill Your Darlings
So you’ve completed your first draft of a brief or memo. Congratulations! If you did your work early, you’ve given yourself a few days away from it so that you can review it with fresh eyes. And upon review, there may be portion or paragraph that you’ve fallen in love with – well-written, with the perfect citations.
But look closer. How does that beautiful passage fit into the rest of your paper? Does it advance your argument, or is it beating a dead rhetorical horse? If you find a portion of your writing slowing down or retreading previous portions of your argument, then scrap it. Delete it! I know it’s hard, but the great thing about law school and the legal practice is that there will always be new opportunities to craft those words that are both legally incisive and artistically appealing.
Legal writing can be intimidating, especially at first. But with these tips – and a lot of practice – not only can you survive, but you can thrive in all your legal writing challenges.
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Other helpful Legal Writing posts:
- Embrace The Difference of Legal Writing
- 5 Tips for a Great Legal Writing Assignment
- Dos and Don’ts for Using Sample Documents in Legal Writing
- Podcast Episode 11: Legal Writing 101
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