Thursday, December 20, 2012

Make It Sing

 "[A] song is something you write because you can't sleep unless you write it."
Joe Strummer of “The Clash” to NPR in 1999
Shakespeare’s plays, especially the comedies, are full of song. The tunes he had in mind for these ditties are lost to us. But the lyrics that survive suggest an interesting ambivalence reminiscent of some more modern Brits, The Clash—a tension between melancholy themes and a defiant exuberance reflected in the act of singing itself. Here is a seasonally appropriate  example from As You Like It:
Blow, blow, thou winter wind.
Thou art not so unkind
As man's ingratitude;
Thy tooth is not so keen,
Because thou art not seen,
Although thy breath be rude.

Heigh-ho! sing, heigh-ho! unto the green holly:
Most friendship is feigning, most loving mere folly:
Then, heigh-ho, the holly!
This life is most jolly.

Freeze, freeze, thou bitter sky,
That dost not bite so nigh
As benefits forgot:
Though thou the waters warp,
Thy sting is not so sharp
As friend remember'd not.

Heigh-ho! sing, heigh-ho! unto the green holly:
Most friendship is feigning, most loving mere folly:
Then, heigh-ho, the holly!
This life is most jolly.
(Act II, sc. 7)

On several occasions, I have heard judges express a longing for legal briefs that “sing.” Conversely, I recently heard a member of the U.S. Court of Appeals for the Fifth Circuit bemoan the fact that the briefs she is required to muddle through “rarely sing.” By “sing,” I assume that judges are referring to the somewhat intangible qualities, like flow, that permit the reader to get through difficult material without feeling that it is difficult—or, better still, feeling that they are listening, not reading. And I would agree with a certain unnamed Fifth Circuit judge that many lawyers do not seem to excel at singing—at least not in their legal writing.
Perhaps the holiday season is a good time for lawyers to think about how they might make their professional writing rise above mere workmanlike sobriety and sing. What extra attention to detail might ease the readers’ burden, entice them to stick with us as we explain some dry regulation or statute or procedural rule and its application to a given fact pattern? How can we make those readers bob their heads or tap their feet to a subtle, yet captivating, beat embedded in our prose?
Or perhaps I am only preoccupied with the notion of metaphoric singing today because, last night, my daughter responded to my literal attempts to sing by seizing a pen and writing on my hand in bold, block letters: “STOP SINGING!”
Yet I soldier on.
Fa la la la la, la la la la.

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