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Framing Your Thoughts
§ 1. Have something to say—and think it through.
What's your biggest challenge as a writer? It's figuring out, from the mass of possibilities, exactly what your points are—and then stating them coherently, with adequate reasoning and support.
Although this advice might seem obvious, legal writers constantly ignore it. The result is a mushy, aimless style. Even with your point well in mind, if you take too long to reach it, you might as well have no point at all. Only readers with a high incentive to understand you will labor to grasp your meaning.
That's where law school comes in. Every law student must read and digest scads of diff use writing. You read through old cases that take forever to convey fairly straightforward points. You read law-review articles that take 50 pages to say what might be said more powerfully in 5. And as you read, your incentive for gleaning the main message remains high because your future in law depends on it. You have no choice but to wade through all that opaque prose.
Take, for example, a sentence from a judicial opinion. See if you can follow the court's 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under the peculiar circumstances of this case, the more justly and at the same time, upon reasons of equal cogency, be superseded by a conclusion whose effect cannot be to disturb the integrity of the long and well-established system for the improvement of streets in the incorporated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? In a highly embellished style, it's simply saying, "We made a mistake last time." That's all.
If you add sentence after sentence in this style—all filled with syntactic curlicues—you end up with an even more impenetrable morass of words. The only readers who will bother to penetrate it are either law students or lawyers who are paid to do so.
However willing you might be to pierce through another writer's obscurity, you must insist that your own writing never put your readers to that trouble. On the one hand, then, you'll need a penetrating mind as a reader to cut through overgrown verbal foliage. On the other hand, you'll need a focused mind as a writer to leave aside everything that doesn't help you swiftly communicate your ideas.
That's the start to becoming an effective legal writer.
Begin each of the following exercises by looking up the case cited. Then write a case brief for each one—that is, a short case synopsis that follows a standard form: (1) case name and citation (in proper form); (2) brief facts; (3) question for decision; (4) holding; and (5) reasoning. Your finished product should fit on a five-by-seven-inch index card (front and back). The exercises are increasingly challenging for either or both of two reasons: first, the increasing complexity of the legal principles involved; and second, the increasing difficulty of the language used in the opinions. When you're finished, have a friend assess how easy it is to understand what you've written. Here's an example of a case brief:
Case: Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974).
Facts: While driving in city traffic, Henderson found that, despite repeated attempts, she couldn't brake. To avoid injuring anyone, she ran into a pole. An investigator later found that part of a rubber gasket from the air filter had gotten into the carburetor. Henderson sued Ford on various theories, including defective design. Her expert witness didn't criticize the design of the gasket, carburetor, or air filter, but did say that the positioning of the parts might have been better. No one testified that the air-filter housing was unreasonably dangerous from the time of installation. Yet the jury determined that the air-filter housing was defective and that this defect had caused Henderson's damage.
Question: The expert witness didn't testify that the design was unreasonably dangerous—only that it could be improved on. Is this testimony sufficient to support a jury finding that a product's design is unreasonably dangerous?
Holding: Mere evidence that a design could be made better—without evidence that the design itself was unreasonably dangerous—is insufficient to impose liability on a manufacturer.
Reasoning: A plaintiff in a design-defect case must provide some evidence that the design of the product made it unreasonably dangerous. Specifically, the evidence must show that a prudent manufacturer who was knowledgeable about the risks would not have placed the particular product in the stream of commerce. Mere speculation that a product might be improved on does not constitute evidence of a design defect. A manufacturer is not required to design the best product that is scientifically possible.
Write a case brief for People v. Nelson, 132 Cal. Rptr. 3d 856 (Ct. App. 2011). If you belong to a writing group or class, circulate a copy of your case brief to each colleague.
Write a case brief for Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). If you belong to a writing group or class, circulate a copy of your case brief to each colleague.
Write a case brief for District of Columbia v. Heller, 554 U.S. 570 (2008). If you belong to a writing group or class, circulate a copy of your case brief to each colleague.
§ 2. For maximal efficiency, plan your writing projects. Try nonlinear outlining.
Writers work in various ways, often experimenting with many methods before settling into certain habits. But most writers need a way to set down their yet-unformed ideas in some way other than a top-to-bottom order.
Once you've thought of some points to make—even if they're not fully formed—you've already begun the writing process. But you're not yet ready to begin writing sentences and paragraphs. You're ready to start outlining, which itself can be a multistep process. Here I'll discuss producing an outline that probably won't resemble the outlines you've tried for other writing projects. More on this in a moment. First, let's break down the writing process into its component parts.
It's useful to think of writing as a four-step process:
1. Think of things you want to say—as many as possible as quickly as possible.
2. Figure out a sensible order for those thoughts; that is, prepare an outline.
3. With the outline as your guide, swiftly write out a draft.
4. After setting the draft aside for some time (whether minutes or days), come back to it and edit.
These four steps derive from a system developed by Betty Sue Flowers, a former University of Texas English professor. She has named each of the steps: (1) Madman, the creative spirit who generates ideas; (2) Architect, the planner who ensures that the structure is sound and appealing; (3) Carpenter, the builder who makes the corners square and the counters level; and (4) Judge, who checks to see whether anything has gone wrong. Each character represents a separate intellectual function that writers must work through.
The Madman, essentially, is your imagination. This character, though some times brilliant, is almost always sloppy. When you're in the Madman phase, you're going for copious thoughts—as many as possible. Ideally, though, you won't be writing out sentences and paragraphs. Rather, you'll be jotting down ideas. And if you get into the swing of it, your jottings will come fast and furious.
You'll need to protect the Madman against the Judge, who hates the Madman's sloppiness. If you don't restrain the Judge in these early stages of the writing process, the Madman could be at considerable risk. Writers commonly have little battles in their heads if the hypercritical Judge is allowed to start censoring ideas even as the Madman is trying to develop them. The result is writer's block. The one thing all slow writers seem to have in common is that they will not go on to sentence two until sentence one is perfect. By the time they get to the end of the paragraph, the Judge still isn't satisfied, so they cross it out and start again. Fast writers never bring in the Judge that early in the writing process; this enables them to use the process to discover what they have to say. The perfectionistic, Judge-dominated writers view their initial efforts as producing a final product, which is why it takes them so much longer to get it done. So learn to keep the Judge out of the Madman's way.
The other steps are equally important.
Once you've let the Madman come up with ideas—in no particular order—the Architect must arrange them. But it's virtually impossible for the Architect to work well until the Madman has had free rein for a while. Although initially the Architect's work might be nonlinear, you'll ultimately need a linear outline—a plan that shows the steps on the way from the beginning, through the middle, to the end. Typically, in legal writing, you'll arrange your points from the most to the least important—and then clinch the argument or analysis with a strong closer.
The Architect's work product should be in complete sentences—not mere phrases. Why? You should be working with full propositions, not just scraps of ideas. A good outline can be as simple as three propositions arranged in their most logical and powerful order.
Next is the Carpenter's turn in the lead. This is where you begin writing in earnest. Following the Architect's specifications, the Carpenter builds the draft, joining sentence to sentence and paragraph to paragraph. Of course, the Architect's blueprint makes the Carpenter's job much easier. Ideally, the Carpenter writes quickly, treating the outline as a series of points that need elaboration.
For many people, the carpentry is the most unpleasant part of writing. They find it hard to sit down and produce a draft. But this problem stems largely from skipping the Madman and Architect stages—as if any writer could do three things at once: think of ideas, sequence them, and verbalize them. That's not the way it works, even for superb writers. In any event, the Carpenter's job becomes relatively easy if the Madman and Architect have done competent work beforehand.
Again, the Judge must stay out of the Carpenter's way. If you're constantly stopping yourself to edit the Carpenter's work, you're slowing yourself down. And you're getting into a different frame of mind—that of editor, as opposed to writer. Still, though, the Carpenter exercises considerable discretion in following the Architect's plans and makes architectural refinements here and there when producing paragraphs and sections.
When you have a draft, no matter how rough, the Judge can finally take over. For many writers, this is where the fun begins. You have the makings of a solid piece of writing, but now you can fix the ragged edges. The Judge does everything from smoothing over rough transitions to cutting unnecessary words to correcting grammar, spelling, and typos. An alternative name for the Judge is "Janitor" because a big part of what the Judge does is tidy up little messes.
Each character has an important role to play, and to the extent that you slight any of them, your writing will suffer. If you decide, for example, to "rough out" a draft by simply sitting down and writing it out, you'll be starting the whole process at the Carpenter phase. You'll be asking the Carpenter to do not just the carpentry but also the Madman's and the Architect's work. That's a tall order. People who write this way tend to produce bad work. And they tend to procrastinate.
If you decide that you can begin an outline with a Roman numeral, you'll still be asking a lot: the Architect will have to dream up ideas and sequence them simultaneously. And worse: whatever your I–II–III order happens to be at this early stage will probably become fossilized in later drafts. Most writers' minds aren't supple enough to allow part IV to become part I(D) in a later draft, even if it logically belongs there.
That's why it's critical to let the Madman spin out ideas in the early phases of planning a piece. Ideally, the ideas will come to you so fast and fluidly that it's hard to get them all down as your mind races.
One way to do this—to get yourself into the Madman frame of mind—is to use a nonlinear outline. Among lawyers, the most popular type of nonlinear outline is the whirlybird. It starts out looking like this:
A shorthand name for the project goes in the center. Then you begin adding ideas—the more the better. For every major idea you have, use a branch off the center circle. For supporting ideas, try branching off from a major 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 where they go, how they fit together, or what they'll look like when put in the right order. Here's an example:
Once you've finished a whirlybird—whether it takes ten minutes or ten hours—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 having the Architect organize them sensibly. The next step might look like this:
An insurer's duty to settle requires proof of actual coverage, and the Milnes assert that they have proof of coverage. But in a previous, related proceeding, they proved up a default judgment by arguing that the person they now claim was negligent harmed them intentionally.
A. The district court did not find that there was coverage, so Panzan Insurance properly refused a settlement offer.
B. The Milnes cannot contradict the factual and legal position they took in state court:
(1) The equitable doctrine of judicial estoppel prevents a party from taking a position contradictory to the position taken on another issue or in a previous but related proceeding.
(2) In state court, the intentional nature of the act that harmed the Milnes was crucial to obtaining the default judgment, and they presented evidence of intent.
(3) The policy does not cover intentional actions, and the state-court evidence is fatal to their claim against Panzan, so the Milnes presented evidence that the act was not intentional.
Once you have this type of linear outline—something that many writers can create only if they do a nonlinear outline first—writing your first draft becomes much less intimidating. More on this in a moment.
Lawyers who have tried using the whirlybird before drafting a linear outline commonly cite several advantages:
It encourages creativity. It helps you think of things you might otherwise miss. Brainstorming becomes easier because the creative mind tends to jump around. You eliminate the straitjacketing effect of As, Bs, and Cs, which can cause you to force ideas into premature categories.
At the same time, the whirlybird can help in free-form categorizing.
It makes getting started fairly easy. It's stress free. You can avoid writer's block.
As some of the same ideas emerge in different contexts, you can see more clearly the interconnections between your ideas.
It's a great way to discover your key points—and to distill your thoughts.
Once you know all the options, you can more confidently select what your lead will be.
The whirlybird is an excellent reminder of ideas that might otherwise get dropped.
Excerpted from LEGAL WRITING IN PLAIN ENGLISH by BRYAN A. GARNER. Copyright © 2013 Bryan A. Garner. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS.
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