Appellate Advocacy Blog

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

Saturday, February 24, 2018

Writer's Block and Productivity: The Lawyer's Edition


For most of us, the dreaded part of legal writing is, well, the writing. Staring at that empty white page. Fighting through the repressive voice in our head that whispers things like: “Better not make any mistakes! Better figure out something good to say! Better finish before the filing deadline!”

Quite a few problems can clog up your legal writing flow. You may suffer from decisional paralysis, where you can't decide what writing task to do next. You might contract the always-viral procrastination, where you can't get started in the first place. Maybe multi-tasking-itus sets in, and you feel so overwhelmed that you start switching back and forth between projects like a frightened squirrel. 

Worry not, because there are proven treatments for all that ails you. These will make it easier not only to start your writing projects, but to finish them, too. 

The first one is magic—a tool backed by tons of science, and one that I’ve used with struggling writers for years. Get a process. It turns out that Mark Twain was ahead of his time: “The secret of getting ahead is getting started. The secret of getting started is breaking your complex overwhelming tasks into small manageable tasks, and then starting on the first one.”

The simple act of following a step-by-step drafting process will smooth out many of your productivity problems. You’ll no longer waste time and energy deciding what to do next. You’ll stave off procrastination because the writing process will feel manageable. And you'll better focus—and produce better results—by tackling one component of your draft at a time. With a good process in place, writing becomes like walking: one step after another. 

Here’s a sample process many writers find helpful:

  1. Take a half a sheet of paper and write down the main questions that your document must answer and your precise goals for the piece. This will anchor you in the next steps.
  1. Summarize the main facts that you think matter to the document—in bullet points. This list will change as you research and get drafting, but starting with a simple set of important facts will narrow the field when you start researching, which is often the trickiest step.
  1. Get a high-level understanding of the law and write out some bullets points for these, too. Keep them organized around the questions you write down earlier. You may already have a sense of the legal principles you care about (say, you are drafting a response to the legal points raised by the other side). But before getting into the weeds of legal research it always helps to orient, or reorient, to the legal big picture. Otherwise, you're liable to scurry down rabbit holes with little payoff.
  1. With a better sense of what facts matters under the rules you've researched, return to your facts and see if there are any new ones to add to your list.
  1. With your updated list of key facts, exhaustively research the rules, one at a time. This step can be broken down into a few steps as well—like searching mandatory authority, then persuasive authority; writing down a list of key case citations that you will use on each point, etc.
  1. Then when you’ve got your research tackled, you probably want an outlining step of some sort, including steps to make sure that you consider all the counter-arguments to each of your points.
  1. Then you should add some actual drafting steps, like a rough first draft of each issue.
  1. Finally, you need several editing steps (see the article here for tips on those).

Maybe this is not the process for you. And I admit that 8 steps seems like a lot at first. But I dare you to come up with a step-by-step writing process and give it a try on your next document. If you are like many others, you will instantly feel relief. Who knows, you might even start looking forward to that blank page.

While a process is often the silver bullet for productivity problems, there are several other ideas to try.

Focusing tricks can do wonders. For example, once you have an idea of your document’s theme, try writing it on a post-it and sticking it next to your computer screen as you edit. Same for the main goals of your document. This will help keep you focused on what matters. 

Research also shows that self-talk impacts our productivity. For example, procrastination self-talk can reinforce that a task is unpleasant and that we don’t have control—for example, telling yourself “I must finish this or else…” Changing that self-talk to: “I choose to write” or “I want to write” can flip your writing switch.

One recent study backs this up. Participants were put into two groups: one was encouraged by the researchers to exercise, the other was told to write down for themselves that they would exercise. Only 35% of the encouraged-group exercised at least once per a week during the study. But, incredibly, 91% of participants exercised at least once per week when they wrote down their own motivational self-talk.

Finally, consider trying a few offbeat productivity hacks:

  • The Pomodoro technique: the much-acclaimed productivity hack. You work for 25-minute increments, broken up by short breaks. You don’t allow yourself to vary from your task during each 25-minute stint. You keep track of your breaks on paper. Tons of people—lawyers included—swear by Pomodoro.
  • Public-accountability: also known as public-shaming. By telling someone else when you plan to finish a writing project, perhaps a friend or, better yet, a boss—you can keep yourself to deadlines or risk shame. Even a Facebook post asking your friends to keep you accountable can help.
  • First Things First: prioritize your most important tasks first. Pareto's principle supports this productivity hack, which posits that 20% of our effort produces 80% of the results. This means that prioritizing tasks—perhaps for us writers, outlining let’s say—is more likely to produce results than wasting hours on less important tasks, like reading through stacks of similar cases.
  • Minimizing distractions is a popular one. These range from the simple, like putting away your smart phone while working, to the sophisticated—like installing site blockers that will keep your screens tuned to your work. StayFocused is a great one. 
  • Productive Procrastination: have two or three projects going at one time, so if you get sick of one, you can jump over to the other.
  • The Eisenhower matrix: this classic approach has you create a matrix. In one box are the tasks that are urgent and important (tasks you will do immediately); then there is a box of important, but not urgent (tasks you will schedule to do later); then urgent, but not important (tasks you will delegate to someone else); and finally, neither urgent nor important (tasks that you will eliminate).
  • Use technology: like templates with pre-filled procedural standards. I discussed loads of tech tricks here.
  • A less mainstream idea to try: rituals. Wade Boggs, former baseball player for the Boston Red Sox, woke up at the same time each day, ate chicken before each game, took exactly 117 ground balls in practice, took batting practice at 5:17, and ran sprints at 7:17. As weird as it sounds, rituals are powerful cognitive tools. In multiple experiments, people following rituals performed better at cognitive tasks. So why not create your own writing rituals? Perhaps by writing in the same place each day. Or always outlining with a lucky pen! 
  • Finally, you can try writing with a cocktail. In new studies, a drink or two was shown to significantly spur your creativity and ease the stress of tackling tough tasks. In word association games, for example, participants were more able to go outside of the predictable answers, drawing connections where they might not otherwise.

Really, the act of trying something new often makes writing more palatable. And fun! 

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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