Legal Writing as Clear Thinking

We all know lawyers who struggle to write clearly despite having myriad legal-writing tools at their disposal. Their plight is sad; doubtless they’re putting great effort into their legal writing, yet they’re not seeing results. You might be one of these lawyers. I know I’ve been one.

I’ve found that what’s common among these lawyers is that they haven’t yet mastered a legal-writing skill that can’t be taught—the ability to think clearly.

The good news is that muddy thinkers can train themselves to think more clearly. The bad news is that clear thinking requires hard work.

Muddy Thinking is Not Uncommon

Lawyers struggling to think clearly shouldn’t delude themselves into believing that they’re the only writers that have this problem. The best writers struggle to form lucid thoughts. In On Writing Well, William Zinsser empathizes with every lawyer who’s struggled to think clearly:

It’s impossible for a muddy thinker to write good English. . . . Thinking clearly is a conscious act that writers must force on themselves, as if they were working on any other project that requires logic . . . . A clear sentence is no accident. Very few sentences come out right the first time, or even the third time. Remember this in moments of despair. If you find that writing is hard, it’s because it is hard.

As Bryan Garner suggests in Garner on Language and Writing, the cure for muddy thinking is to simplify thoughts without oversimplifying. The hard part, of course, is figuring out how to achieve that simplicity. The answer isn’t obvious. But if you ask good writers they will tell you that clear thinking comes from being reader-centric—that is, focusing on and empathizing with the reader’s needs.

John Trimble: Clear Thinking as Empathy

In a chapter in Writing with Style entitled Thinking Well, John Trimble explains how writers can learn how to think clearly, and then translate that skill to the written word. The key, Trimble says, is to develop “writer’s sense.”

But developing writer’s sense isn’t easy, especially for the novice writer. The novice practices what Trimble calls “unconscious writing,” a form of infant-like egocentrism:

[The novice] thinks through an idea only until it is passably clear to him, since, for his purposes, it needn’t be any clearer; he dispenses with transitions because it’s enough that he knows how his ideas connect; he uses a private system—or no system—of punctuation; he doesn’t trouble to define his terms because he understands perfectly well what he means by them; he writes page after page without bothering to vary his sentence structure; he leaves off page numbers and footnotes; he paragraphs only when the mood strikes him; he ends abruptly when he decides he’s had enough; he neglects to proofread the final job because the writing is over . . . Given his total self-orientation, it’s no wonder that he fails repeatedly as a writer. Actually, he’s not writing at all; he’s merely communicating privately with himself—that is, he’s simply putting thoughts down on paper.

Trimble says that good writers jettison egocentrism by appreciating their readers’ vantage point (objectivity), imagination (empathy), and rights and feelings (courtesy). Above all, good writers assume “the reader has a zillion other interesting things to do with her time, is reading at a fast clip, and is just waiting for an excuse to tune out. The writer’s challenge, then, is to avoid giving her that excuse. The supreme challenge is to make her quite forget the other things she wanted to do.”

How Can Legal Writers Empathize With Their Readers?

If focusing on and empathizing with the needs of readers results in clear thinking and writing, in practice how can lawyers achieve these goals?

First as a commercial litigator, and now as corporate counsel, I’ve tried to focus on and empathize with my readers’ needs by:

  1. Writing a brief or corporate document like a newspaper article, with a good lead or introduction, a conversational tone, and short, uncomplicated words and sentences. In fact, when I receive feedback that my writing is “conversational,” “flows well,” or “makes sense,” I know I’ve succeeded in empathizing with my reader’s needs.
  2. Reading documents out loud to determine whether the sentences flow smoothly, or if there are ways to cut legalese, verbiage, or my darlings. If I can’t read a document to myself or to another person without repeatedly stumbling over my prose, I know that my readers will have the same difficulty, and that it’s time to revise.
  3. Being honest with myself about whether non-lawyers could understand the points I’m making without knowing anything else about the topic. If I conclude that a non-lawyer can digest my presentation without additional explanation or background, then I know I’m serving my reader’s needs, even if the reader is another lawyer.
  4. Letting my thoughts distill overnight. I’m amazed at how a good night’s rest clarifies my thoughts about how to make a document read more smoothly. It’s almost as if my brain defragments overnight, allowing me to revise sentences that the night before seemed impenetrably abstruse.
  5. Not waiting until 10:00 p.m. the night before a document is due to write a first draft. I know that some lawyers think they do better work late at night. But it’s impossible to empathize with your reader’s needs when you’re rushed and tired. When your body is stressed, you can’t think clearly, much less write clearly. So becoming reader-centric requires adequate planning so that your failure to plan doesn’t become your reader’s emergency.

Ernest Hemingway once claimed in an interview that he rewrote the ending of Farewell to Arms 39 times before he was satisfied with it. Asked what in particular had stumped him, Hemingway candidly admitted, “Getting the words right.” It’s plain, then, that even writing giants sometimes struggle to think clearly.

This should give hope to the struggling legal writer. If you struggle with muddy thinking, stop fretting about it. Instead, start focusing on how to empathize with your readers’ needs. If you do that, your readers will start noticing your improved writing. And, before you know it, your readers will begin to appreciate your efforts.

(photo: http://www.flickr.com/photos/afagen/3366178223/)

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  • http://www.editorsoftware.com Nick Wright

    Matthew – a great and thought-provoking article. And yes, lawyers and everyone else should think of the readers’ needs when writing. However, the main problem for lawyers is not clear thinking – lawyers tend to be the brightest students and can be intellectually smart when defining problems and looking for solutions.

    No, the main problem lawyers struggle with is the legal language style. The way most lawyers write is to imitate other lawyers. Lawyers usually write with long sentences – sometimes without any punctuation – archaic and specialist terms, convoluted wording, passive verbs, wordy phrases and so on.

    I’ve run plain English writing courses for lawyers and once you explain how to avoid these problems and write clear sentences, they become excellent writers and editors. They think through the problem and write clear contracts to reflect the issues. By this stage they are automatically thinking of the readers and how they will understand the text.

    • http://blog.simplejustice.us shg

      Cool attempt to hijack the post to advertise your own business, bro.

  • http://www.proctorappellatelaw.com Sharon Proctor

    Matthew,
    Thanks for the excellent article. Too often, writing tips focus only on writing style. But content is just as important as style, perhaps more so. By pointing out that muddy thinking can never produce clear writing, you remind us all that time spent analyzing the issues and thinking about the arguments is time well spent. In fact, unless we are willing to spend some time thinking hard before we write, we waste a lot of time writing things that we will later edit out. Or worse, writing things that should be removed during editing but are not, because we haven’t spent enough time thinking about what we want the court to do and why the court should do it. Thanks for reminding us that thinking is the most important part of writing.