Back in 2008 Antonin Scalia ventured an interesting opinion on legal writing: “I do not believe that legal writing exists,” said the U.S. Supreme Court justice. “That is to say, I do not believe it exists as a separate genre of writing. Rather, I think legal writing belongs to that large, undifferentiated, unglamorous category of writing known as nonfiction prose.”
I take Scalia’s remark as a challenge to lawyers to create prose that is like any other good nonfiction writing—capturing and holding readers’ attention, even their imagination.
With that challenge in mind, here are a few ideas that may help bring some energy and life to your next legal writing project.
Cultivate Your Creativity
Sure, legal memos and briefs follow a certain structure, and you can’t make up law and facts. But that doesn’t mean all legal writing must be dry. Within the structure is an opportunity to create something original, unique to you.
Every word, every sentence, every paragraph you write, is an act of creation. How you relate concepts and cases to one another is itself highly creative. “Creativity is the power to connect the seemingly unconnected,” said writer William Plomer. Connecting the seemingly unconnected is what we’re trained to do; it’s integral to “thinking like a lawyer.”
Treat your legal writing as an act of creativity. You’ll be more engaged in the process, and that enthusiasm will translate to the page—ultimately helping to engage your reader.
Let Go of “Perfection”
Perfectionism leads to procrastination and writer’s block, and stifles creativity. It causes you to second-guess yourself, making you hesitant and preventing a free flow of words and ideas. “If I waited for perfection,” said writer Margaret Atwood, “I would never write a word.”
Once you’ve done enough research, you’ll need to put pen to paper or keystroke to computer screen. The only way to do that is to write something—no matter how awkward you think it sounds. You can always go back and edit, and you should—a first draft is meant to be rough.
Keep in mind that there is no one right way, and certainly no “perfect” way, to write a sentence or a paragraph or an entire brief. By removing that pressure, you free your mind from the internal, critical editor that inhibits your creativity.
Empathize with Your Readers
Your readers—clients, judges, other lawyers—are pulled in so many directions by a multitude of media that taking the time to read and really contemplate something probably feels like a luxury.
Step into your readers’ shoes as you write and edit; picture them reading your document. Think about their time demands and their goals. If you can meet those demands and goals through writing that is informative, coherent and creative, you’ll go a long way to winning them over.
You’ll also meet the challenge of producing not only great legal writing, but also memorable nonfiction prose.