The Lawyer's Guide to Writing Well. Tom Goldstein

       Edit late.

      There is no trick here, but adhering to these two simple principles will have a magical effect on your writing. Solve your problem as early as you can, and delay rewriting and editing as long as you can. You need this intermission to forget about composing and problem solving, to gain some distance from your draft, and to prepare yourself to edit. As you'll see, the secret to editing is to come to your draft not as its writer but as its reader.

      To write well, the writer must take ten steps in two stages. In stage one (steps 1 through 6), the writer searches for ways to solve the problem. In stage two (steps 7 through 10), the writer dresses up the solution to communicate it clearly to the reader.

      1 Develop a theory; write it down.

      2 Research; take notes.

      3 Jot down a rough outline.

      4 Reassess your theory; explain it to yourself on paper.

      5 Set down a formal outline.

      6 Compose.

      7 Reorganize.

      8 Rewrite.

      9 Edit and edit again.

      10 Proofread.

      For the most complex assignments, we recommend that you proceed step by step. For less complex assignments, you may need to jumble the steps or even take two steps at once. Often, for both simple and complex assignments, you may need to repeat some steps several times.

      Here, we briefly describe the ten steps; we discuss them at length in later chapters.

       Step 1. Develop a theory.

      You must begin with some idea of direction, purpose, or goal, though you need not know exactly how you're going to get there. When Jessica was in the eighth grade, her history assignment was to write a thousand-word essay on “the impact of European colonialism on African economic development.” She didn't know quite what that meant, and she didn't ask. Consequently, her research amounted to no more than a random collection of quotations that she jerry-built into an answer. She gave the draft to her father, the writing teacher. He didn't take kindly to it. She didn't take kindly to him. Moral: Know where you're going.

      Ordinarily, step 1 in legal writing is the easiest step because the nature of the case or your discussions with the client or a supervising attorney determine the objective: “We want summary judgment”; “he breached the contract”; “let's see if we can get specific performance”; “do we have a good case of copyright infringement?” You will surely fail if you do not know at the outset what your aim is. If you are unsure of the aim, ask. Lawyers who fail to ask questions, fearing to look stupid, are doomed to prove that they are stupid when they turn in their drafts. Of course, you want to be intelligent about the questions you ask. The young lawyer who wonders “What exactly is summary judgment?” will raise a supervisor's eyebrow. But to ask “Why do you think we should seek summary judgment in this case?” will force the supervisor to articulate a theory, a starting point for the work to come.

       Step 2. Research.

      With a goal in mind, you can begin to research. You are not looking just for quotations to adorn your brief. Writers absorbed in hunting for quotations sacrifice time for thought; the more sparingly you quote, the better your writing. Research should stimulate thought; you read cases not to write a history of the law but to force your mind to respond to something relevant, to begin thinking about the problem at hand, to let ideas flow.

      As you research, keep your mind open to all possibilities. In a letter to a friend who had complained of an inability to write, the poet Fried-rich von Schiller offered advice that remains sound:

      The reason for your complaint lies, it seems to me, in the constraint which your intellect imposes upon your imagination…. Regarded in isolation, an idea may be quite insignificant, and venturesome in the extreme, but it may acquire importance from an idea which follows it; perhaps in a certain collocation with other ideas, which may seem equally absurd, it may be capable of furnishing a very serviceable link…. In the case of a creative mind…the intellect has withdrawn its watchers from the gates, and the ideas rush in pell-mell, and only then does it review and inspect the multitude. You worthy critics…are ashamed or afraid of the momentary and passing madness which is found in all creators, the longer or shorter duration of which distinguishes the thinking artist from the dreamer. Hence your complaints of unfruitfulness, for you reject too soon and discriminate too severely.²

      How the mind solves a problem remains mysterious, so no one can give you a formula for telling how many pieces of the puzzle you need and how to lay them out. But we do know that it is crucial to begin the writing process early. You need not actually sit down to compose, but you must have the project in mind. You need time for conscious reflection and for subconscious rumination. That is why thinking about a memorandum due on Monday morning must not be left for Sunday night; you need to have time for reflection, for mental processing, for second thoughts, or for intermediate solutions that lead to still better solutions. Even if you do not have the time to start composing until Sunday night, try to read the assignment and begin thinking about it the day you receive it.

       Step 3. Jot down a rough outline.

      Before you progress too far in your research, you should begin to jot down notes for a rough outline. This rough list will help you direct and organize further research. You will not yet be able to see the entire structure of your solution, so you cannot compose a formal outline. But you should begin to list the topics you plan to discuss. Later, when you know what all your topics will be, you can rearrange them into a logical sequence.

       Step 4. Reassess your theory.

      Your initial theory of the case suggested certain avenues of research. Your research may have suggested new avenues. You should constantly be asking whether your initial assumptions were correct or whether your research requires you to modify them.

       Step 5. Set down a formal outline.

      When you are satisfied that your research has given you the main direction for your document—and that you have not overlooked any byways—you should write a formal outline. By now you will know, for instance, that there are two elements to proving copyright infringement, that courts have accepted six circumstances in your case as proof of those elements, that there are several procedural hurdles, that you have ways to surmount each, and that none of the available defenses is well-founded. You may have solved your problem already, or you may solve it as you are working out your formal outline. Don't become too attached to this outline, however; there's a good chance that it will not be the final one.

       Step 6. Compose.

      You have completed five steps, and only now should you begin to compose. Now you will see whether your solution to the problem will work. If you are not yet sure you have a solution, now you will discover what you need to create one.

      The time it takes to reach this step depends on the complexity of the assignment and the amount of research you must undertake, but you must always leave plenty of time for steps 6 through 10. As you compose, you will learn what you know and, even more important, what you have yet to discover. The sooner you start writing, the sooner you can see the holes in your argument. You can read statutes and cases forever, but you will not know whether your reading is sufficient or germane until you try to make sense of it by writing your first draft.

      When you now sit down to compose—or stand up, if you are like Justice Holmes, who said “nothing conduces to brevity like a caving in of the knees”³—you may feel blocked. We distinguish two kinds of writer's blocks. The first is the psychological difficulty many people have in beginning any protracted and solitary intellectual enterprise. The second kind of block is conceptual: it is a signal of inadequate preparation. You stop because you do not have the information you need, or because you cannot discern logical connections within the materials you have assembled. Once you identify the source of a conceptual block, you can stage unblocking maneuvers. You may need to do more research or more thinking