01 July 2009

On prototypes and craftsmen

A few weeks ago, Ken Davis wrote an interesting post on Manage Your Writing, comparing the writing of a first draft to the building of a prototype. Ken says that, like a prototype, a first draft doesn’t have to be perfect; its purpose is to enable the writer or builder to test ideas.

I don’t disagree with Ken. In fact, most of my own first drafts of briefs are prototypes, never seen by anyone except me. But I do want to offer a competing metaphor to emphasize a different aspect of building a prototype: what Ken describes as the “elaborate planning process” preceding the prototype.

John, a friend and former next-door neighbor, is a professional art-hanger; his job is to hang works of art on the walls of galleries and rich people’s homes. So seven years ago, when I moved into my new office at my then-new firm, I asked John to hang my diploma, other framed credentials, and artwork on my office walls.

Now, when I hang a picture on a wall, I generally follow the trial-and-error method. I guess where the nail or picture hanger should go, hammer it in, hang the picture, decide that it’s too high or low or too far left or right, remove the picture, move the nail or picture hanger to another location, and repeat until satisfied.

DSCN3375 That’s not how a pro like John does it. When he came to my office to hang my stuff up, the job took around an hour or so. About 90% of the time was spent planning where the nails would go. First, he talked to me about what I wanted. That took only a few minutes. Most of the time he spent measuring stuff: the framed things, the walls, and various intermediate distances on the walls, and toward the end, making one little pencil mark for each nail (two nails for each framed thing). It took just a couple of minutes to tap the nails into the wall. Then we hung up the stuff. The result: perfect. And perfect on the first try.

What does this story have to do with writing? I’ll grant that we shouldn’t expect any piece of writing to be perfect on the first try. But if it’s a brief, we had better think of spending around 90% to 95% of the time pre-writing: studying the record, doing the research, outlining the evidence, and assessing the arguments. That’s what I do, anyway—I spend far more time pre-writing than actually writing the first draft. The resulting first draft is never perfect, but it’s usually good enough to need only moderate revision and editing before presentation to others for review. (The process is described in a couple of articles that you can find here.)

By all means, treat your first drafts as prototypes. But remember that a good prototype is never just slapped together. If you want the prototype to work, you need to plan it carefully.

30 June 2009

It was a hot summer night ...

They call people like me “tall building lawyers,” not because I’m especially tall, but because the building I work in has 50 floors,1 which makes me think I should have put a hyphen between “tall” and “building.” In any event, high above the sweltering streets of New Orleans, where two-inch-long cockroaches regularly violate the laws of aerodynamics by actually flying, and where the natives know that anyone wearing Mardi Gras beads during Lent is a tourist, I sit in my four-walled chamber, where the HVAC keeps things as cool as a meat locker in Greenland. On my computer screen appears a post by Coleen Barger on Legal Writing Prof Blog, who scooped me on this story like I was a tub of Rocky Road at Baskin-Robbins. The 2009 Bulwer-Lytton Fiction awards had been doled out, and Coleen beat me to the punch, like Sugar Ray Leonard sparring with Helen Keller.

__________

1 I remember the time this hot number asked me how many stories were in my building, and I said, “Babe, it’s got 50 floors and a million stories.”

21 June 2009

Lessons in style

If you know and follow the rules of grammar and usage—good. If you’ve ditched legalese and strive to write in plain English—good. If you know who Bryan Garner is and try to do most of what he teaches—good. You’re ready for the next step: developing style. To learn what style is and how you can begin to acquire it, read What Attorneys Can Learn from Children’s Literature, and Other Lessons in Style. It’s by Ben Opipari. He knows what he’s talking about.

13 June 2009

DRI Appellate Advocacy Seminar

If you’re a lawyer looking for first-rate appellate CLE, then please consider registering for the DRI Appellate Advocacy Seminar, to be held November 5–6, 2009 in La Jolla, California (near San Diego), at the Hilton La Jolla Torrey Pines. Here’s the lineup:

To download the brochure, click here.

11 June 2009

Recuse whom?

At Set in Style, you’ll find an interesting discussion between Mister Thorne (author of Set in Style) and Ben Opipari (author of Literary Legs) over the verb recuse. The question being discussed: Is recuse necessarily transitive, or can it be intransitive?

04 June 2009

Survey says, . . .

What do law firms want to see in new hires? Among other things, better writing skills, says a survey by the New York Law Journal. Law.com has the story.

Beyond memos and briefs: An annotated bibliography

There’s much more to real-world legal writing than memos and briefs—for example, affidavits, contracts, e-mail, jury instructions and verdict forms, letters, motions, and pleadings. Professor Carrie W. Teitcher (Brooklyn Law School) has compiled an impressive list of resources to help both students and practicing lawyers with these writing tasks. So see Legal Writing Beyond Memos and Briefs, an Annotated Bibliography, available on SSRN.

It’s also available on JALWD’s web site (that’s the Journal of the Association of Legal Writing Directors). Go there and look for volume 5. Right now, you can find it under the current issues tab, but by next year it may be moved to archives and have a different URL. Until then, here’s a direct link.

31 May 2009

For writers and readers of judicial opinions

OpinionWriting If you either write or read judicial opinions, then you should read Opinion Writing and Opinion Readers, by Judge Ruggero Aldisert and two of his law clerks, Meehan Rasch and Matthew P. Bartlett. In this paper, Aldisert & Co. examine whether to write an opinion at all, the audiences to whom an opinion may be directed, the structure of an opinion. and the function of each section. If you write judicial opinions, this paper will help you write better ones. If you read judicial opinions, this paper will help you understand them better by understanding the writer’s purposes.

This paper is a preview of the forthcoming second edition of Judge Aldisert’s book Opinion Writing, which (the publisher promises) is “coming soon.”

30 May 2009

Perversion of language

Please read Ben Opipari’s analysis of blurbs on cereal boxes. It’s an education on how language can be used to mislead while stopping short of lying. Don’t do the tricks that Ben points out—that would be dishonest. But do watch out for those tricks. And when you spot one, respond by spotlighting it.

28 May 2009

“Now back away slowly from the caps-lock key.”

Today’s installment of Courtoons illustrates why lawyers should never touch the caps-lock key (except to turn caps-lock off). See also my Minor Wisdom post of 9 Feb. 2006. (Hat tip to my south Texas compadre, Roger Hughes.)