August 2008 • Vol. 28 No. 7 | An E-Publication of the Los Angeles County Bar Association

Procrastination, or Why Hamlet Could Never Meet a Writing Deadline

By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.

Procrastination is a frequent enemy of legal writers. By putting off writing projects until the water gets hot enough to make us scream, we end up producing poor product—we fail to explain clearly or persuade successfully. What causes procrastination? More importantly, how can it be eliminated?

The sources of procrastination resemble the messages from Hamlet’s ghost: Here’s what’s rotten. Hurry up and fix it, but do it right—or you’re damned. But Hamlet only grappled with one ghost; legal writers wrestle with two. One is the external ghost, the critical reader, usually a time-pressed judge or harried clerk who must be persuaded to fix what’s rotten. The other is the internal ghost, the inside voice that keeps repeating, “Write it right. No, not like that. I said ‘right’!” So, here’s how to combat the critics: first, your internal critic, then your external critic.

Befriend the internal critic. The internal critic sounds like your toughest junior high teacher, the spotter of split infinitives, the finder of tiny typos. Ending a sentence with a preposition is a practice up with which he will not put. He knows grammar, punctuation, all things technical—and he can make all the difference in the quality of your finished piece. But the problem is that he wants to keep looking at everything you put down; he wants to pick it apart before you put it together. Your internal critic needs to wait its turn.

Some years back, English professor Betty S. Flowers came up with a brilliant bit of cognitive psychology to put the internal critic in its place.1 The so-called “Flowers Paradigm” teaches that writing is a process with four overlapping stages, each requiring a different mindset with particular energies. First, the “madman” stage allows freewheeling creativity. Legal writers need to think creatively, research deeply, ask “Why?” and “What if?” Second, the “architect” stage orders the “madman’s” messy notes and wide-ranging analysis with outlining and summarizing. Next, the “carpenter” stage drafts and crafts, getting down the sentences and paragraphs, and fitting the text together so that it looks like something readable. Finally, after the draft cools and no sooner, the “judge,” or internal critic, comes in for polishing and perfecting.

During the fourth and final stage, with the internal critic at the controls, take these polishing tips from Bryan Garner and Justice Scalia in their recent book, Making Your Case: The Art of Persuading Judges:

The next-to-last read-through should be devoted solely to compression—eliminating those sentences, phrases, and words that do not work. Every word that is not a help is a hindrance because it distracts. A judge who realizes that a brief is wordy will skim it; one who find a brief terse and concise will read every word. The final read-through should be exclusively devoted to seeing whether certain points can be put more clearly, more vividly, more crisply.2

So, befriend the internal critic. Ask it to wait its turn, to leave you alone at your desk while the madman, architect, and carpenter do their work. Then invite the internal critic in to cut, compress, and pick every nit. 

Please the external critic. The critical difference between rookie legal writers and experts is reader-sensitivity. Rookies are myopic. They make the fatal error of believing that if the idea seems clear and simple in their own mind, they just need to write down whatever they think. But experts know better. They know that the law is complex; that writing about it always demands both precision and thoroughness, and that those two qualities are usually at war. Stephen Armstrong and Timothy Terrell put it this way:

Your readers are overworked, impatient, and cantankerous. Although the law may look like the [Rocky Mountains of] western Colorado, they would much rather be on an interstate through the Great Plains, driving at 70 (maybe 90) m.p.h. in a straight line to their goal....[L]awyers and judges want you to carve a path through the law’s complexity that is straight, simple, and quick.3

The best tool for carving a path that the external critic can follow is a syllogism. So, as you move from the “madman” to the “architect” stage, structure every major point with a major premise, minor premise, and conclusion. Here’s the classic structure formulated by Aristotle:4

All men are mortal.
Socrates is a man.
Therefore, Socrates is mortal.

In legal writing, the major premise is the controlling rule or principle. The minor premise is comprised of the facts invoking that rule. The conclusion follows like night after day. Here is the teaching from Scalia and Garner:

Figuring out the contents of a legal syllogism is a matter of finding a rule that works together with the facts of the case—really, a rule that is invoked by those facts. Typically, adversaries will be angling for different rules by emphasizing different facts. The victor will be the one who convinces [the external critic] that his or her syllogism is closer to the case’s center of gravity. What is this legal problem mostly about? Your task as an advocate is to answer that question convincingly.5

Once your architect organizes the analysis or argument syllogistically, your carpenter can proceed to draft with the reader constantly in mind. Orient the reader with concise summaries and overviews of the main points. Provide concise and assertive headings and subheadings, signposts along a logical path. Within the analysis or argument, add transitional words and phrases to keep the reader moving with you toward the conclusion. 

Before delivering the memo or brief to the external critic, “get some good lawyer who is not intimately familiar with the case...to give the brief a quick read, about as quick as the judge’s will be. A reader off the street, so to speak, will sometimes be able to spot gaps and deficiencies that you are too close to the argument to perceive.”6 Gaps filled and deficiencies remedied, the writing is ready for the external critic.

So, maybe Hamlet could have met a legal writing deadline had he known how to deal with his haunting procrastination, the internal and external critics. But dealing with these pests is more like putting Rosencrantz and Guildenstern in their place. When they told the Prince to “[p]ut your discourse into some frame, and not start so wildly,”7 Hamlet should have told Rosencrantz, the internal critic, to wait outside the castle until he stopped whirling the words and had a draft. If it was Guildenstern, the external critic, he needed to assure him that, before the deadline, he would deliver a syllogistically organized, tightly crafted, and concise brief. The rest is silence.

AUTHOR’S NOTE: Thanks to accomplished legal writer Ami Silverman for suggesting this topic. No procrastination has ever grown under her feet.

 

1Betty S. Flowers, Madman, Architect, Carpenter, Judge: Roles and the Writing Process, 44 Proceedings of the Conference of College Teachers of English 7-10 (1979); see also Karin Mack and Eric Skjei, Four Stages of the Writing Process, Overcoming Writing Blocks 41-45 (1979).

2Bryan Gardner and Anton Scalia, Making Your Case: The Art of Persuading Judges, 81 (2008).

3Stephen V. Armstrong and Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing, 4 (2d Ed. 2003).

4See generally Ruggero J. Aldisert, Logic for Lawyers: A Guide for Clear Legal Thinking, (3rd Ed. 1997).

5Gardner and Scalia, supra note 2, 43.

6Id. at 81.

7Was it Rosencrantz or Guildenstern who said that? I never can tell them apart.

 




© 2008 Los Angeles County Bar Association  •  Disclaimer and Proprietary Notice
Privacy Policy  •  Questions@lacba.org  •  Contact  •  Sitemap