Got around to opening the latest edition of “Austin Lawyer,” the local bar’s monthly newsletter. I like to read the legal-writing column by my friend and colleague, Wayne Schiess. He offices next door to me, but it is still good to see what I can learn from him without having to shout at through the adjoining hall. This month Wayne describes the writing process of the Pulitzer Prize-winning author, Robert Caro. Wayne identifies a 10-part process that he attributes to Caro and suggests that legal writers could benefit from adopting a similar “editing-oriented, recursive, multi-step process.” I absolutely agree. A commonality among law students and lawyers who struggle with their writing is that they tend to think you should move breezily from outline to draft to a final proof in rapid succession. (And sometimes they even skip that outlining step.) In reality, producing any decent work product is far more about labor-intensive revising then about unfettered drafting. Indeed, in my view, quality written work generally can be explained by two things: a big investment of time and obsessive, self-criticism.
Elsewhere, I have described the legal-writing process in terms of seven stages, borrowing from Shakespeare—surprise, surprise. My “seven stages” roughly parallel the “seven ages of man” identified by the theatrically melancholy Jaques in As You Like It. In a monologue that is one of my daughter’s favorites, Jaques explains life as an eventful, but predictable journey from “mewling and puking in the nurse’s arms” to “second childishness and mere oblivion.” You probably know how the speech begins even if you have never seen the play or don’t remember the context:
. . . . All the world’s a stage,
And all the men and women merely players;
They have their exits and their entrances,
And one man in his time plays many parts,
His acts being seven ages.
Each stage of the writing process, like the seven ages of man, suggests a chronological sequence. But unlike life where time’s vector only goes one way, you don’t always move through these stages of the writing process in a straight line. Expecting to do so can short-circuit the creative process.
No kidding: I really believe that legal writing is a creative enterprise.
In law school and in law practice, many see “creativity” as a euphemism for trouble, a backhanded compliment akin to “For a fat girl, she doesn’t sweat much.” Most likely, this fear of the “c” word is because the usual Type-A person who embraces law as a career path does so promptly after proceeding in a straight line from gestation to graduation with high honors. And because of this linear trajectory, many lawyers do not have much basis for comparison. They do not know what it takes to excel in a profession because, before law school, they did not spend much time trying on different professional hats.
In truth, creativity is a critical component of success in any arena. Creativity requires mental agility, passion, sensitivity, integrity, energy, focus, drive, self-sacrifice—all traits helpful to law practice. Sadly, these traits would not likely be the first to spring to the minds of laypeople asked to describe lawyers. Yet one reason good lawyers are paid so handsomely is because they are creative thinkers.
Legal writing expert, Bryan Garner, is quite clear about the important role creative thinking plays in legal writing. In the first chapter of The Winning Brief, for instance, Garner introduces “The Flowers Paradigm,” developed by Betty Sue Flowers, who was among Garner’s mentors in the English Department at the University of Texas. That paradigm describes the writing process in terms of four roles: madman, architect, carpenter, judge. The madman is the mad genius, full of ideas, long on enthusiasm, perhaps prone to sloppy thinking. In The Flowers Paradigm, the madman is the generative spirit essential to the writing process. And for the madman to do his thing effectively, he needs a little space without the judge breathing down his neck.
To suggest, however, that the madman role is the only creative part of the legal writing process would be to over-simplify. Creativity involves more than generating raw material that the other, less crazed parts of the lawyer will ultimately sculpt into respectable work product. Being truly creative or inventive requires discipline. And it requires substantial preparation. Any seven-year-old can twirl around ecstatically to music and fancy herself a fabulous dancer. And all seven-year-olds so engaged are generally adorable. But no matter how authentic their feelings, they are not really being creative. I submit that all untrained seven-year-olds leaping about to music look pretty much the same because the palette of choices they have to work with is, shall we say, limited. To really create something, that seven-year-old is going to have to spend some serious hours in a studio developing both muscles and technique and learning the conventions associated with different dance forms. Then, once she has a solid foundation, she can start experimenting to produce something that is not merely derivative.
Similarly, the legal writer cannot do the hard work of creating effective work product until the writer has invested significant time mastering the rules associated with a particular project. All useful legal writing is, after all, tethered to rules—not just legal rules that must be identified, analyzed, and applied to a particular legal problem, and not just fundamentals of grammar, spelling, syntax. Any legal work product prepared for a court is supposed to respect rules of the relevant jurisdiction (e.g., state or federal rules of procedure) and the specific court’s “local rules” and even judge-specific “local-local rules.” And all legal writing is governed by rules of professional responsibility requiring lawyers to avoid tactics associated with used-car salesman. Each legal writing genre is governed by express and implicit rules about appropriate organization, sentence structure, word choices, and tone. Comprehending all of those rules is a necessary part of the creative process—just as jazz musicians must master music theory and a wealth of musical motifs before they can hope to improvise a truly creative riff on a standard.
A creative legal writer does not, however, strive to be revolutionary. Mostly, the initial ideas for writing projects are borne of real-world problems that clients need solved. Moreover, being inventive with respect to legal source material is absolutely verboten. No legal writer should ever “get creative” in describing the contents of a particular judicial opinion or the material facts at issue in a particular case. Such conduct is a formula for court sanctions. Nevertheless, creativity—broadly and more accurately understood—should inform the entire legal writing process because creativity does not just mean “making stuff up.” Despite what Theseus says in A Midsummer Night’s Dream says, the madman and the poet are not “of imagination all compact.” (V. 1.7–8.) Unbridled madness will paralyze or destroy the creative impulse in the long run. I offer the sad fate of poet Sylvia Plath as an example. Her madness provided material for some of her poetry and probably motivated her to want to get “outside of herself” through the creative process. But, in short order, her madness interfered with her work as a poet, cutting short her life at age thirty when her latest suicide attempt proved successful.
To be a poet, and not just a madman, a person needs to be disciplined, focused, grounded, and self-critical, as well as imaginative. Similarly, to be a creative lawyer a person needs knowledge, discipline, the ability to see patterns, nuance, and fissures, and the skill to teach others how to see those same phenomena such that they are then inclined to act in a way that furthers a client’s cause. The creative legal writer must, therefore, be willing and able to see situations from several different perspectives and be able to keep those differences straight.
In sum, being creative is not synonymous with madness; and the writing process involves more than going mad. Being creative is a multi-faceted process—whether one is a dancer, jazz musician, poet, or legal writer. The process is prefaced by long hours drilling at the ballet bar, practicing scales, mastering technique, learning to think analytically. It then involves harnessing inspiration and using that energy to forge something new that resonates with an audience because, despite its novelty, it respects the rules associated with a given genre.