First, read this short story by David Foster Wallace. It won’t take you longer than 15 minutes. It’s that short. I challenge you to read this and not get completely absorbed.
Then read more below about the “fictional dream” and how to create superb legal writing by making the dream come alive in three steps: (1) Learn to recognize the fictional dream; (2) eliminate distractions; and (3) use telling details.
Ultimately, the fictional dream is the most important part of legal writing because it means persuading your reader to agree with you, rather than with opposing counsel.
Recognize the Fictional Dream
It sounds like a paradox. What does legal writing, one of the starkest forms of realism you can imagine, have to do with fiction?
John Gardner, famed writing professor and novelist, instructs us to strive for continuity of the fictive dream in our writing, which is to say, the dream that compels your reader to get completely absorbed, so that everything else around you falls away. If you read the David Foster Wallace piece, you now have an intuitive sense of what Gardner was talking about.
The fictive dream is what happens when you lose yourself in story.
In a short story or novel, the fictive dream makes you care what happens to the characters, and you keep turning pages. You are entertained and persuaded because the story is believable, even if certain aspects of the story are fantastic, like the “bird in the oak across the driveway” that watches the house with its head cocked, listening to the burned toddler’s cries in David Foster Wallace’s story, or bloodthirsty zombies in AMC’s wildly popular TV-adaptation of The Walking Dead graphic novels.
You’re not writing about zombies, but you can still prevent your reader from waking up in the middle of the page by telling a compelling narrative, and you do so by getting rid of distractions.
A distraction in legal writing is everything from ignoring local formatting rules to errant punctuation marks. In fiction, they’re cliches. In fact, distractions are a range of things—including poor spelling—and all of them do one thing: wake your reader from the fictional dream.
Obviously, in legal writing, you take your facts as they are. You have less creative license. But that doesn’t mean you have none. The concept of the fictional dream is alive and well in all forms of writing, including the writing lawyers do, and you can strive to entertain while getting your point across.
Marc Randazza’s legal writing, for instance, certainly entertains, and is likely relatively free of distractions, even if it is sometimes over the top.
Use Telling Details
What’s your point? What’s your main legal argument? How are you going to get what’s most important across to your reader?
If you cannot articulate it in less than a few lines of prose, be prepared to lose the case.
To help you articulate your point, use telling details, which are those vivid details that paint the picture with fewer words, not more.
Having read David Foster Wallace’s story, you’ll recognize facts that could be present in any personal injury case. It’s a story involving serious injury to a child. A toddler overturns a pot of boiling water; the boiling water washes over him; his parents rush to help; the child survives but sustains severe injury.
Telling details are what turn this story into a compelling narrative: the “overturned pot on the floortile” and the “toddler in his baggy diaper standing rigid with steam.”
David Foster Wallace didn’t over-describe. He didn’t tell us the kitchen floor was white. He didn’t say the toddler’s hair was brown. Instead, the toddler’s diaper’s baggy and he’s standing rigid with steam.
These are images you won’t soon forget.