The Lawyer's Guide to Writing Well. Tom Goldstein

final printed page.

      The hardest lesson of all remains. You must learn how to allocate your time between research, composing, and editing. We have talked to enough lawyers to conclude that most misconceive the relative importance of these phases of producing a document. When presented with novel issues, most lawyers spend between half and three-quarters of their time on research. That is a mistake. Research in a vacuum, without the hard thought that comes from composing, is often a wasted effort. The information you have gathered is useless if you do not effectively communicate it to judges, adversaries' lawyers, or clients. If you are responsible for producing a first draft from scratch, you should devote no more than 30 percent of your time to research and up to 40 percent to composing. During your composing time, you may have to break away to conduct more research. That's not only permissible, it's imperative, as long as you are continuing to compose while researching. The remaining 30 percent of your time should be spent editing. Editing is that important, and it's likely that you will fail in your most important task of effectively representing your client if you do not reserve the time to polish your prose.

      Writing is hard work. But that's what you do. It's why you're paid.

       4 OF DAWDLERS AND SCRAWLERS, PACERS, AND PLUNGERS

      GETTING STARTED AND

      OVERCOMING BLOCKS

      Jay Topkis, who has represented Spiro Agnew, large corporations, and death row inmates, is a tenacious courtroom advocate and an elegant craftsman admired for his spare prose, apt analogies, and colorful images. This is how Topkis, who has practiced in New York at Paul, Weiss, Rifkind, Wharton & Garrison since 1950, starts writing: “I wait, or, as Red Smith once said, I sit down and think until beads of blood form on my forehead. Mostly I procrastinate.”

      Writing is not easy. Getting started can be especially wrenching. But procrastination rarely is the wisest course. It only makes writing harder.

      “Plunge in,” advises Evan A. Davis, a partner in Cleary, Gottlieb, Steen & Hamilton, and counsel to New York Governor Mario Cuomo. That sounds right.

      On the other hand, maybe it depends. As William J. Jones, a corporate counsel, warned, “A long walk is a good idea, but that should vary with individuals. Beethoven and Dickens did extensive rewriting and editing; Mozart and Shakespeare rarely rewrote a line, but you can't tell from the final product. That's what ‘counts.’ I personally get in mind what I want to say and rarely rewrite. It is a great mistake to force one person's method on another.”

      We asked lawyers, judges, and professors how they start writing, and they described dozens of approaches, which we have grouped into a handful of categories.

       Dawdlers

      Thomas D. Rowe Jr., a professor at Duke Law School, reads, thinks, and then organizes: “I dither a lot to force myself to do it, and I sit down at my word processor and type, taking lots of breaks.” R. Edward Townsend Jr., a litigator in Manhattan, does everything he can “to keep from starting” and then dictates “a stream-of-unconsciousness first draft,” from which he creates the final product. Zick Rubin, a Boston practitioner, says: “I delay a lot and then force myself to plunge in.” Rubin, who was a professor of social psychology at Brandeis University before he became a lawyer, adds: “Having more than one project helps—you start writing one thing in order to avoid writing another.” William Hughes Mulligan, the well-known lawyer and judge, offered a similar approach: “I wait for a deadline I can't escape.”

       Scrawlers

      David G. Trager, a federal judge and former dean of Brooklyn Law School, tries to get as many ideas as he can on paper “without regard to order or logic.” Eric D. Green, professor at Boston University Law School, “lets it percolate. Then I blast it out and revise it later as many times as I can.” Former Justice Richard Neely of the West Virginia Supreme Court, who has written several books, says: “I usually vomit a first draft onto the page to see where I am going, and then rewrite and rewrite.”

       Outliners and Nonoutliners

      Those who plunge in usually skip the outline stage. “I envy those who use outlines and think through what they want to write,” says Gerald Stern, administrator of the New York State Commission on Judicial Conduct and, for a public official, an unusually gifted writer. “I think while I write. I write quickly and in volume, and then make many changes in drafts 2, 3, 4, 5, 6, and 7.” John H. Stassen, a Chicago lawyer, never writes an outline, but he does prepare “a points list.” He uses that list as a springboard, starting “with the easiest point first,” to ease into “the always painful process of putting words on paper. That starts the creative/analytic juices flowing.”

      But there are plenty of outliners, and they usually spend plenty of time redrafting. Among the most meticulous outliners is Randal R. Craft Jr., a New York City litigator. His strategy is to “outline, outline, outline. For documents whose organization is relatively simple, I outline them by making a list of the topics to be covered, and then I go back and put in the margin each topic's appropriate numerical sequence. For more complex documents, I usually use index cards for the various topics, subtopics, etc., and then, on a conference room table, I put them in various arrangements, in order to determine which arrangement appears to be the most effective. Spreading out the cards allows a broader bird's-eye view of these arrangements than computers can provide. The authorities and sources to be cited or quoted are listed on the cards. After the outline of cards is completed, I usually dictate my first draft directly from the outline, having my authorities and sources at hand for ready reference. While I dictate, I frequently pace around the room.”

       Perfectionists and Thinkers

      A few lawyers said they aim for a polished first draft. “Generally speaking, I have written a lot of it in my head before I actually sit down and start writing,” said Daniel H. Lowenstein, a professor at the University of California at Los Angeles Law School. “I tend to start at the beginning and work my way through. I am pretty compulsive about being fairly polished at the outset. For example, I almost always write my footnotes as I go along. I even write my introduction at the beginning…. I do not recommend this method to others. It is simply how I work.”

      Some lawyers emphasize thinking long and hard before writing. Justin A. Stanley, a former president of the American Bar Association, told us, “A long period of thought preceding the writing is important. Sometimes I just start writing and rewriting and rewriting. Ultimately, thought and writing must come together.”

       Beginners and Closers

      Some lawyers work on the introduction first, others start with the conclusion, and some work on both. “Work a first paragraph to death and take it from there,” advised James J. Leff, who was an experienced trial judge in Manhattan and a well-known gadfly of the court system, famous for his acerbic and literate letters to the state's administrative judges. J. Anthony Kline, a California appeals judge, starts by “stating the threshold question as succinctly as I can and then proceeding to answer it.”

      Still others begin by focusing on both their first and last paragraphs. Herald Price Fahringer, a flamboyant lawyer who has represented Larry Flynt and Claus von Bulow, says he tries “to write the opening and the closing first because I believe they are the most important parts of a brief or legal presentation of any substance.” Similarly, Martin Garbus, who represents publishers and authors and has also written several books, drafts the first and last paragraphs and then outlines the document. Eugene R. Fidell, a Washington lawyer, writes his conclusion, then his introduction, and “then [I] settle down on the questions presented, then work up argument headings and subheadings, then write the textual parts of the argument, then go back and tinker with introduction, questions, conclusions, etc. so it all fits together.”

       I doubt that there are so many as a dozen professors of law in this whole country who could write an article about law, much less about anything else, and sell it, substantially as written, to a magazine of general circulation.

      FRED