Introduction to the New Edition
Good writing is timeless. Except, of course, when it’s not.
Periodically over the last ten years, I thought about revising my original book on legal and professional writing—Writing to Win: The Legal Writer. But as egocentric as it might seem, for a while I never found much I would change. Sure, some of the references marked the book as a product of a slightly earlier time—the references to the O. J. Simpson trial, Kenneth Starr, or “vice-president Al Gore.” But for the most part, the book seemed to illustrate the maxim that the principles of good writing don’t change all that much over time. A good brief in 1965—much less in the late 1990s when the book was written—is still a good brief today. Ditto for complaint writing, contracts, and even judicial opinions.
And yet: In a variety of ways, writing in many parts of the legal and business worlds has changed more since that book was written about a decade ago than in any comparable period over the last five centuries. “We shape our tools and then our tools shape us,” wrote the media theorist Marshall McLuhan a generation ago. Technological changes transform not only the methods of communication but their style as well. The invention of the printing press centuries ago not only altered the dissemination of information in Western cultures, it changed the way people spoke and the way they wrote—and there were constant complaints about it then, just like now.
In our time, of course, the recent development of computers, the Internet, and then smart phones (and all their manifestations, such as the iPad) has begun to do much the same thing. It’s undeniable that writing within the office and for clients is dramatically different than it was a decade ago. Whether we recognize it or not, that means that legal analysis and the ways we approach business problems have shifted as well.
These revolutionary changes are one of the subjects of this new edition of the book. In part, that makes this volume a primer on how to communicate successfully in this brave new world. Writing effective e-mails and shorter memos are skills very much at odds with the tools we acquire in school—where the goal is usually to be expansive and detailed as we display our knowledge in all its minutiae. These new forms of communication are also very different from the written and oral tools one needed to master to be a good lawyer or executive, circa 1990 and before.
Yet it’s not just these new forms one needs to master. Litigation and contract writing may not have begun to change much since the rise of e-culture. But they will, since it is inevitable that these documents will also be read differently as the years pass, as will even judicial opinions. Some courts now require e-filings. Justices Antonin Scalia and Elena Kagan read briefs on either an iPad or a Kindle, and they will soon be joined by many others.
It means, too, that a lawyer’s role and habits of mind will change as they have begun to do already. If the Internet, Twitter, and Facebook are altering the way we do our jobs and how well we do them, they’re changing the way we think as well. It was Professor Kingsfield in The Paper Chase who kept dwelling on the importance of “thinking like a lawyer.” How that’s changed at the beginning of the twenty-first century because of these technological shifts is the subject of this new edition too.
Perhaps unsurprisingly, this new focus reinforces many of the fundamental principles that writing teachers and books (including my previous volume) have been stressing for decades—use strong verbs or be concise—though the rationales for doing so have changed somewhat. Yet other suggestions are novel, as one might expect at the dawn of a new epoch.
This updated edition also has an increased spotlight on creative writing as it relates to the presentation of facts and argument, as well as a new section on how affidavits need to be better drafted so that they reflect the true voice of the person they are supposed to represent. And, throughout the text, there are new ideas and examples of both what to do and avoid.
There is an old Chinese curse: May you live in interesting times. Whether it’s a curse or not, we live in just such an era. So let’s begin to figure out how to adapt—the sooner the better.