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Brain Pickings, Arthur Quiller-Couch, & Writing

First, if you don’t subscribe to Brain Pickings, you really should. Along with Farnum Street, it’s one of the best sources of informed thinking, art, and inspiration on the web. (In fact, its much better about the arts than Farnum Street.) Among other regular topics, writing is a frequent concern. In particular, this post recounts and quotes the work of early 20th century writing guru Arthur Quiller-Couch, author of the book On the Art of Writing. Read Brain Pickings blogger Maria Popova’s full account of this book, but allow me to quote just a bit from it now. This goes to the issue of persuasion and its role in life. Read these words carefully. Quiller-Couch writes:

Persuasiveness … embraces the whole — not only the qualities of propriety, perspicuity, accuracy … but many another, such as harmony, order, sublimity, beauty of diction; all in short that — writing being an art, not a science, and therefore so personal a thing — may be summed up under the word Charm. Who, at any rate, does not seek after Persuasion? It is the aim of all the arts and, I suppose, of all exposition of the sciences; nay, of all useful exchange of converse in our daily life. It is what Velasquez attempts in a picture, Euclid in a proposition, the Prime Minister at the Treasury box, the journalist in a leading article, our Vicar in his sermon. Persuasion, as Matthew Arnold once said, is the only true intellectual process. The mere cult of it occupied many of the best intellects of the ancients, such as Longinus and Quintilian, whose writings have been preserved to us just because they were prized. Nor can I imagine an earthly gift more covetable by you … than that of persuading your fellows to listen to your views and attend to what you have at heart.

If you’re a lawyer, or just an everyday advocate, you should head these words–no, you should drink  them into your very being. Whether in written or spoken form, what we do is a matter of persuasion, of seeking to guide change, and the more we come to master and expand the art of language, the better off we shall become in shaping the world around us. Take heed and govern yourselves accordingly.

Legal Writing Potpourri #2

1. R+W Legal Consultants links to an academic paper from Judith Fischer entitled “Add Punch to Your Legal Writing“. Only three pages long, it works as a nice cheat sheet  for cleaning up your legal writing.

2. Legal Writing Prof blog  points to the latest in the ABA Journal from legal writing guru Bryan Garner about words that we lawyers should excise from our vocabularies. While I’m tempted to keep an occasional “whereas”, in fact, Garner is certainly right. I work to expunge “shall” in any legal document. I drafted a lot of ordinances and contracts without it, and the monstrosity “and/or” is just that: a monstrosity. (Remember: “Or includes and“. Yes, well worth a couple of minutes of reading time.

3. Legal Writing Prof blog also does a brief review of a new book by William Domnarski that addresses (in part) legal writing. Not having read the original pieces discussed, I hesitate to comment too much. However, I agree with Legal Writing Prof that good writing is good writing, and what lawyers do is add legal terminology (different that mere jargon or “word gravel”) to their prose. Also, Bryan Garner (see above) is a very useful resource. Finally, writing and thinking go hand in hand.

Checklists via Atul Gwande’s The Checklist Manifesto

Another older but still pertinent review. Read, enjoy, and apply.

I’ve finished Atul Gawande’s The Checklist Manifesto (2009, 175 p.). Yes, I read a whole book about the humble checklist. Yet, as one would expect from someone who is a regular New Yorker contributor, it’s very well written. The basic premise is simple: with increasingly complex undertakings, no person can keep the necessary mental notes needed to do everything that must be done when it should be done. This includes surgeons and their staff, airline pilots, contractors, and yes, even lawyers. (I give myself credit for professional reading on this one.) Gawande gives us a tour of how something as complex as a skyscraper gets built, and built right. He takes us to Boeing to see how simple checklists operate airplanes and save lives. He also takes us into surgery with him and his peers to see how they deal with these problems. Many of his accounts, especially of surgical and airline emergencies, are fascinating and scary. His own challenges getting a working checklist into his O-R makes for interesting reading as well. In sum, it’s a short, fascinating account of how a simple, rather old-fashion device can do a lot of good. Cooks use them all the time: they call them recipes.

Above All, Clarity in Writing Briefs (and Almost Everything Else)

This post, the conclusion of a Top Ten countdown from the Lady Legal Writer, culminates with the correct #1: be clear in your briefs. Write clear sentences; write clear paragraphs, write clear headings, and be very clear about what you want. If someone takes just one thought from this blog, I recommend that you concentrate on the fact that judges are human, just like you and me. Judges suffer from too many cases to decide, too many briefs to read, and too little energy to complete their tasks as they would like to. So what should you as an advocate do? Make your judge’s life–or at least your little speck of it–as easy as possible. When arguing to a judge, either orally or in writing, make your argument as clear and succinct as possible. Do the contrary only if you prefer that your judge not understand you argument.

This whole series–Commandments 10  through to 1–are worthwhile. Earthshaking, no; but unless you never need reference to the fundamentals, the series bears reading in full. (Also, in this last post, she provides an example of some really purple prose. I’m favor more vivid legal writing, but this stuff could merit a Bulwer-Lytton prize! )

 

Constance Hale on Drafting a Scene

Just a short while ago I posted a piece by Roy Peter Clark on vivid storytelling, and then I came across this post from another writing guru, Constance Hale at sinandsyntax.com. Since I think that their messages reinforce one another, I thought I should reference this post as a complement. Don’t get me wrong, I’m not suggesting the you write briefs that way that you’d write a New Yorker article, nor that your brief should land you an invite to the Jaipur Literature Festival (#ZEEJLF). However, you do want to engage your audience, whether adjusters,  opposing attorneys, judges, or jurors. All want to be engaged (well, I’m not sure about insurance adjusters, but I grudgingly admit that they are human, too). So if an event happens somewhere, describe it as best you can using the principles set forth Hale’s and Clark’s posts.

 

Drafting the Vivid Story with Roy Peter Clark

This piece by writing guru Roy Peter Clark provides a very useful analysis of a fine NPR report. For lawyers, life isn’t as simple as “the best story wins”, but it surely helps if you can tell the more compelling story. In trial, the format makes our challenge more akin to drama, with the question and answer mode of witness examination. But we do have opportunities for direct narration, such as in a demand letter, in an opening argument, or in closing. As in the story of the Oklahoma tornado related below, plaintiff’s trial lawyers often have to tell the story of a client who’s suffered a disaster. To the extent that we can relate a client’s story compellingly, we can influence insurance adjusters, judges, and jurors with the result that will greatly increase the potential for recovery. Thus, honing our skills in these areas should bring tangible rewards. Clark provides a fine model how to tell a vivid, compelling story.

 

Legal Drafting: Replace “Shall” with “Must”

I have to admit that this has become a bit of a fetish with me. In my 28 years as a city attorney (for three small towns, and a fourth for about my final 15 years of practice), I did a lot of legal drafting: ordinances, resolutions, and contracts, among other things. I also had to read such legal documents, and for the most part, the documents were written abominably. Sometime during the course of my career, I discovered that the U.S. government (yes, you  read that correctly) developed guidelines for writing in plain English. I found those guidelines quite helpful,  and I shared them within my office. In the world of easy cut and paste drafting, it seemed a losing battle, but I still fight it. Today in revising a memo written by a young lawyer, I went after the “shall” language. I can’t change the statute (legislatures should), but when summarizing requirements for a client, there’s no need to continue this bad habit of using “shall” when a more direct and imperative “must” will do. Say it aloud: “I shall not use it again!”. I sent the following to the young lawyers that I work with that I retrieved from–yes–my friends with the U.S. government.

 

F.R. Lucas on Writing Well & with Style

If there is one thing that I can’t get enough of, it’s advice on improving my writing. I communicate a lot by writing; indeed, I believe I share this trait with most lawyers. Legal prose needn’t be the “word gravel” (Gerry Spence) that we so often encounter. Some authors, like Bryan Garner, aim almost exclusively at lawyers as their audience, and thus specifically target legal needs and problems. However, we can benefit from other, non-lawyer sources as well. This book is one such instance of a book intended for anyone who might appreciate some first-rate instruction about writing.

Style by Lucas coverThe internet deserves another shout-out of praise for somehow guiding me to this wonderful book. I often treat the internet as I do the labyrinthine Seminary Coop Bookstore: I can wonder here and there and there; discover the most delightful titles and ideas. I think that this tip came from Farnum Street, which obtained the tip from an article written by Joseph Epstein. But no matter, along with my trusty Kindle (a useful supplement to the paper book) I have now completed this delightful and instructive book

Reading this book was like sitting in class with the most urbane and humane don that I could imagine. He combines a literature class (from the Greeks to the British and French masters) with a writing class. And while this is not work shop, no exercises, no bullet points, you realize that he writes the writing that he teaches. Clarity, brevity, and courtesy toward the reader are his guiding principles, and he practices  these virtues, displays them really, while guiding us along a path littered with great writers from past ages. 

This is not an easy, how-to book. Quotations in French require a trip to the endnotes for translation, and a great number of the examples quoted are new to me, even if the names of the authors are familiar. However, the effort proved worthwhile, and I completed the book feeling a great sense of satisfaction at having been entertained and delighted while I received great instruction. The perfect professor.

 

Negotiating with Strength by Using BATNA

I intend the caption to have a double meaning: negotiating with another who has greater strength and negotiating strongly with that more powerful adversary. This happens in almost any case involving an insurance carrier or corporation: they will inevitably have more money and personnel to deal with the issues than a plaintiff’s attorney and the client. How to get around this–or at least minimize the differences–is a key challenge. I recommend this article because I’ve been in this situation so many times before. I like the recommendation of systematically reviewing considering the options, the BATNAs.

Riffing off of Fisher & Ury’s Getting to Yes, the fine blog At Counsel Table gives some examples of how to pull this off in the context of litigation and mediation.

 

What Is “The Persuasive Life”?

Atticus Finch didn't win the batter, but he helped win the war for civil rights. His character represents the ideals of the lawyer-advocate.
Atticus Finch didn’t win the battle, but he helped win the war for civil rights. His character represents the ideals of the lawyer-advocate.

“The Persuasive Life” is a new blog that intends to address issues of persuasion, advocacy, lawyers, and the law. It reflects my interests, both personal and professional. Each individual life exists in a sea of relationships, and the attendant persuasion—understood in the broadest terms— the we exercise defines the quality of each life. From this very global, even metaphysical, perspective, I intend to range down into the particulars of the law in which I’ve practiced for over 34 years. I hope to cover all of the in-between as well. I intend this blog to benefit anyone who cares to read it, lawyer or not. It should benefit anyone because I believe that the quality of our lives arises from our ability to relate, to communicate, to persuade, and to be persuaded by, others.

The content of the blog will include both my writing as well as other sources that I find pertinent to these very broad topics. For those pieces that I import from elsewhere, such as from other blogs, I intend to write an introductory paragraph explaining why I think the information is useful. Indeed, I will be digging back to some of my older book reviews and blog posts to obtain material for this blog.

Since leaving the active practice of law about 14 months ago, I’ve had the time and the occasion to think about lawyering and legal advocacy. I was fortunate that in October 2012 Mind Merchants LPO of Jaipur India and I discovered each other. Consequently, I became involved in www.thelegaltaxi.com, a flat fee, pay-per-use legal research site. From the design of the website to the training of the staff to the production of actual research memos, I played an active role. I especially benefited from the opportunity to work with young Indian lawyers and train them in the ways of American lawyers. This gave me a lot of reason to think about legal writing, legal research, and persuasion in general. Indeed, my brief stint as a legal writing teacher for them (which I continue as a consultant and quality control manager for The Legal Taxi), spurred me to review and improve my own legal writing, teaching, and communication abilities.

For lawyers, I wish I could tell you I won every case and prevailed in every appeal. I didn’t. I can also tell you that now over a year of away from the active practice, during bouts of insomnia or jet lag, I don’t ponder the cases I won. I keep retrying and re-arguing the ones I lost. While this is futile in the obvious sense, there is some value in it. Such occasions prompt me to consider how I could’ve presented a better case and gained a favorable ruling. I tried not to take cases that I didn’t think my clients and I should and could win. (I consider representation a joint venture between lawyer and client.) In those cases when we weren’t successful, I believe I can benefit from contemplating what we could have done differently. I hope that through this blog and through my new venture to offer my legal writing and consulting services to other lawyers, I can bring some benefit to my fellow lawyers and other advocates that I have gained through my school of hard knocks and reflection.

I’m publishing this blog as a part of my work as a freelance lawyer for legal drafting and case preparation. I think of it as my personal CLE course, for which I can only receive credit from you, the reader. I hope that you share my enthusiasm.

I welcome your comments and suggestions for the blog. I read a lot, and my wife has chided me about sharing what I learn. My blogging career to date (here and here) has been an effort to respond to that challenge, as well as my Twitter account. This new blog, I hope, will further that project.

Without further do, then, let us explore and create the persuasive life.