Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, October 22, 2017

Programming your writing intuition


I am excited to write this post with Jory Hoffman, a close friend who teaches writing workshops with me and a phenomenal attorney at Jenner & Block LLP. Luckily for us, Jory has agreed to offer his practical insight on writing topics in future posts, too. 

When we ask judges what frustrates them most about lawyers, the conversation often turns to writing. We hear things like: “they can’t write concisely,” and “why don’t law schools teach them how to write?” Despite endless feedback from judges and others about the sorry state of legal writing, the problems endure.

Some fault lies with people who think that writing isn’t that important to good lawyering. More important, these people say, is figuring out the underlying content, like investigating facts or researching law. Writing is just a formality to get all this content to your audience, right?

Wrong. The content is useless on its own; it becomes useful only if two conditions align:

First, you manage to entice someone to listen to you.

Second, you get them to understand you.

Ask a great lawyer (or any great writer) and they will tell you that coming up with the content is a breeze compared to getting people to listen and understand. In other words: how you write is as important as what you write.

Then we have the legal writers who realize that writing style is crucial but hit a wall, failing to make the progress they'd like. Interestingly, this group probably knows a lot more about good writing than they think. For example, a recent study revealed that incoming 1Ls could spot several writing errors in another person's draft, but when asked to write something themselves, often ended up making the same mistakes. When the heat of writing turned up, they didn't use the good writing tools they had. To some extent, this is a problem for all of us.

But this is not surprising. When you try to change how you write, you are butting up against years of subconscious habit—your writing intuition.  This intuition is built over a lifetime of school and experience. You can’t just tell yourself (or anyone else) to change their intuition on the spot. Even if you want to change, in the heat of writing and grappling with complex issues, your basic writing habits will take over every time. Just like making changes to the other deep-seated habits in your life (I’ll start that diet tomorrow, right?), changing your writing intuition takes serious work.

With this in mind, it becomes obvious why most of us don’t improve as much as we want: we don’t treat writing habits with the respect they deserve. The writing feedback we get and give is often canned complaints and unexplained markups on drafts (which is mostly useless fluff). Telling a lawyer to “write more concisely” is like telling a long-distance runner that they will win the race if they just “run faster.” Markups don’t do much if you don’t know why they’re there or how to fix them. And attending a one hour CLE on writing, or perusing the newest legal writing book, won’t magically transform your writing habits either.

So the question is: how do you reprogram your writing intuition in a way that works? It’s not going to be easy, but it’s doable. And we’ve got two steps to get you on the right path.

First, avoid useless writing guidance like “be more concise.” Instead, identify a list of specific writing moves that you want to program into your writing.

Second, use some concrete devices to incorporate these moves so that they become part of your writing intuition.

Let’s talk about the first step. There is  power in focusing on specific moves rather than generic writing principles. It keeps the process manageable and concrete. But more importantly, once you can spot the moves it will be easier to consciously use them. You will see the moves at work in the things you read and in your own writing. With a list of concrete moves in hand, you can begin reprogramming your writing intuition.

But you still need that list. You might already have some writing moves that you’d like to make intuitive. Perhaps using concrete verbs rather than dry ones (“sunder” instead of “separate”), using transitions (“all that said...”), or using short, simple sentences to emphasize key points (“So too here”). And if you can’t think of some new moves, there are dozens of fantastic legal writing books to help you come up with your list.

With your list of writing moves in hand, now comes the hard work: reprogramming your writing intuition. We use a number of methods with our students, and they work.

The most effective is to use your editing time to program new moves. Try picking up a draft that you’ve written and edit it for only a small handful of new writing moves at a time. Mark each time that you already used the move or anytime that you should have. You are training yourself to spot these moves and wiring your brain to recognize when each move is helpful. And focusing on a small batch at a time will keep the process manageable. Once you master this small set of moves, start editing for a different set of moves. And so on.

Another great method is to edit with a checklist. But don’t just passively check off boxes; force yourself to find at least five or ten examples of each move whenever you work on a project. That way, you can be sure to practice the moves, even if it’s just because you’re looking for places to use them.

One of the best ways to pick up new moves is to read writing that uses them. Everyone from Stephen King to Brian Garner recommends this approach, and for good reason. There is no better way to reprogram your writing intuition. So identify some legal writers who you admire, and read them voraciously. Even better, mark in the book you are reading each time you spot one of the moves you happen to be working on at the time. 

Other simple tools that psychologists suggest include keeping a reminder around your computer screen with the list of moves you are working on and editing others’ writing to add some moves that are missing (such as adding transitions to a piece of writing that has none).

All of this advice is equally useful when you are helping others improve their writing. Ask your mentee to use these devices—for example, have them give you a marked-up draft that identifies a couple specific writing moves that you want them to work on. When guiding others, however, we find that it’s important to explain why each move matters.

Be concrete. I can’t tell you how much harder students work once they understand how a move works on the reader. For example: passive voice is a great tool for deflecting attention from the subject of a sentence; transitions help readers connect sentences so that they can understand the logical connection between each point. Taking a few minutes to explain why these moves work, and giving your mentee a few examples of elite advocates using them, will go a long way in convincing them to put in the programming time.

Ultimately, programming your writing intuition is a lifelong pursuit. You must continue to look for new moves and go through the steps of programming them in. And you must always ask whether the writing moves you have are worth keeping (so many lawyers tell me they write “that way” just because they always have). Above all, take control of this process and avoid letting your writing intuition program itself.

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here

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