Flow and the Art of Lawyering: Part 2

According to Mihaly Csikszentmihalyi, there are five steps to achieving flow, which you can read about in Part I of flow and the art of lawyering.

But flow doesn’t just happen on its own.

You have to follow the steps and understand how they work in the pursuit of a given activity.

Below, I write about applying Csikszentmihalyi’s five essential steps to achieving flow in the activity of legal writing. (Remember, you can apply these steps and achieve flow in nearly any type of activity.)

Read on to see how it worked for me.

Achieving Flow in Legal Writing

I may have been reading and writing all my life, as have many of you, but every piece of writing is different. Legal writing is different; even the subspecies of legal writing, from a business advisory letter to an appellate brief, are distinct from one another.

What more often defines legal writing, no matter what type of piece you need to write, is how tough it is to do really well. It’s not only tough to do well, but it’s tough to sit down and start writing in the first place. Part of procrastination involves a failure to confess that perfection is not a requirement in writing. (At least not in the first draft.)

And I don’t claim to have mastered writing any more than I have mastered parenting, but here are the five steps at work for me:

1Set an overall goal and several realistic subgoals.

I do want to become as close to a master of writing as I can get—a lifelong process—so I’ve chosen an activity with significant inherent challenges.

This is my overall goal: to be a good writer.

Several realistic subgoals that I’ve recently set include: Read a piece of short fiction every day (read here to see what fiction has to do with legal writing); write every day, even if for only five minutes (because practice is essential to mastery); and continue to pursue educational opportunities in writing (like writing classes).

My overall goal is challenging, but the subgoals are quite realistic and attainable.

2Find a way to measure the progress you make in reaching your goals.

In my case, these subgoals are easy to measure. If I am not reading and writing everyday, I know it. If I am not meeting on a weekday or weekend with a group of students in a workshop, or chatting online with a writing teacher, I know it.

These subgoals have the added benefit of being concrete and specific: reading a piece of short fiction, for example, is relatively easy to accomplish in a single sitting. If I prioritize it, I get it done. (It also doesn’t hurt that I enjoy reading.)

3Concentrate on the activity and make finer and finer distinctions in the challenges involved.

When I first began to learn to read, it was challenging enough just to decipher the words on the page. Later, I read simply to be entertained (which still works for me), but I did not read to see how other writers phrase their sentences and construct their narratives.

Now I do.

If I read a particularly striking passage, I’ll copy it down in a notebook. I might re-read a short story I really liked, or that seemed to be masterfully done.

All of these things are a natural progression in the life of a reader and writer, but worth noting in terms of how you can make finer and finer distinctions in the challenges of your chosen activity.

4Develop your skills so that you may rise to the opportunities.

The opportunity, for example, might be submitting a persuasive trial brief when you’ve never written one before. The trial brief is a major landmark in legal writing; like any other forms of writing, it takes some practice to write a good one.

Where do you begin?

When I first sat down to write a trial brief, my skill was relatively low, all things considered, so I began to develop my skills by reading other lawyers’ trial briefs and imitating what they’ve done. As with other forms of writing, you will eventually develop your own unique style, and every submission will bear your mark.

5When the activity gets boring, raise the stakes.

Since we’re talking about trial briefs, let’s talk about cutting and pasting. Yes, all lawyers know that there are significant portions of briefs and memos that do not require you to reinvent the wheel. But, by the time you’ve learned to properly cut and paste, perhaps you’ve also become quite bored with the activity itself.

It’s time to raise the stakes.

Justice Antonin Scalia is a master of using metaphor and plain English to communicate ideas in his opinions (see Kevin Ring’s Scalia Dissents).

You can try to do the same.

Rather than writing the facts and throwing the law on top of it, try to express your client’s position in a fresh, clear way—this, perhaps more than anything else, will persuade the judge and bring you back to a state of flow in legal writing.


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