Partners: Go Easy With That Damned Red Pen

I can trace four periods in my life that significantly shaped my writing.

First, I’ve always been a passionate reader. Reading the good writing of others is not only great fun, it’s indispensable for learning to write well.

Second, in college I double majored in Philosophy and Literature-Writing. These years taught me to write very quickly. In a pinch, I would often leave myself only a very few hours–sometimes only 2 or 3–to write a paper that I could have worried over for days. I didn’t realize it at the time, but this habit of procrastination–not recommended for everyone–which required me to organize my thoughts and write coherent prose very rapidly, was probably the best preparation for the writing skills I use almost everyday as a lawyer.

Third was law school. I don’t like to think that law school did much to shape my writing. I didn’t get along with the IRAC method at first. As you can imagine, philosophers and literary thinkers tend to (1) doubt anything called a “Rule,” (2) live in the realm of “Analysis,” and (3) sometimes never get to any “Conclusion.” If you’re a law student who struggles with adapting to IRAC, I feel your pain. Take refuge in the knowledge that you’ll one day grasp the beauty of the IRAC method. You’ll master it eventually, or fail the bar exam.

I did benefit from Law Review, however. The journal experience helped me get the hang of editing the writing of others. It also helped hone my citation skills and attention to detail.

Without a doubt, the biggest influence on my legal writing has been the tireless editing and revision by my longtime mentor. For the first five or so years of my career, I always dreaded getting back any first or second draft. Would it be as consumed with red ink as the one that came before?

But he persisted and his tutelage paid off. I learned to write much more crisply and economically. My legal writing became less linguistically rich, but shorter and clearer. And while there were things he did that occasionally drove me absolutely batshit, I really appreciate the time and effort he took working with me to help develop my writing and advocacy skills. I’m now flattered on those rare instances when he seeks out my input on an issue or document.

Now I am occasionally the one with the red pen marking up someone else’s work. This is a big responsibility, and should be treated as such. I came across an interesting New York Times interview of Jonathan Klein, the C.E.O. of Getty Images. Among the issues he discussed was “leadership lessons” he learned from his time at Getty Images. He said this:

“I’ve learned a lot from my executive coach. Anytime someone came to me to show me their work, I would critique it. I would almost behave like a schoolteacher–my mother was a teacher–and bring out the metaphorical red pen. And what I didn’t appreciate at the time is that before you mess around the edges, you’ve got to say to yourself, ‘Am I going to make this significantly better, or am I going to make it only 5 or 10 percent better?’ Because in fiddling over the small stuff, you take away all the empowerment. Basically it no longer becomes that person’s work. After a while, those people get into the habit of giving you incomplete work, and then you have to do it for them.”

Heavy is the hand that carries the (not-so-) metaphorical red pen, right? At least with respect to my writing, I always felt that my mentor’s revisions made the end product “significantly better.” In other words, the red ink was clearly worth his time, my attention and the attendant blow to whatever misplaced or unearned sense of “empowerment” I had as a baby lawyer. But I recognize that I don’t always revise someone else’s work either to help make them a better writer or to make the product “significantly better.” Rather, I’m just making it sound more like I wrote it. And, as Jonathan Klein points out, that’s the wrong approach. I need–we all need–to learn to go easier with that red pen.

For the benefit of readers outside law, IRAC means Issue, Rule, Analysis and Conclusion. It is how law students, lawyers and judges typically approach a set of facts. In a nutshell, one “spots” or identifies an Issue, articulates or recalls the Rule, Analyzes how the Rule should be applied under the particular facts, and reaches a Conclusion.

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The Brilliance of Brevity

It’s really a shame I did not meet my longtime mentor (with whom I still practice) before I started college or law school. It would have made life much easier for legions of professors who had to suffer through my unfocused and sometimes wordy writing.

Of course, because one of my majors was Literature-Writing, I was exposed pretty early to writers who really made an art of brevity, from Beckett to Hemingway to Didion to Amy Hempel (regardless what readers think of the literary gifts of these writers, they all practiced a less-is-more philosophy in their writing). And I recognized and appreciated their care and economy in constructing lean sentences that seemed to express a kind of nihilistic void through an absence of language.

But it was not until after I started practicing law and had a mentor who took the time to work with me one-on-one to . . . er . . . adjust my writing style to make it more palatable and persuasive, that I came to understand and appreciate the beauty of brevity. Among his teaching methods, the most powerful involved using a felt-tip pen to excise any (I mean any) word that was not absolutely essential to my letter or brief.

I’ve come to think that there are two reasons crisp, clear writing that gets quickly to the point should be encouraged for lawyers, and neither have anything to do with expressing any “kind of nihilistic void.” First, judges and clerks simply don’t have–and won’t take–extra time to sift through a Faulknerian* experiment to grasp our point. I’m told they often do not get past our introduction or opening paragraphs. If our opponent has better mastered the art of writing in a clear, tight style, it presents no mystery that his or her points, even if not better, will be more seriously considered because they were easier for the judge or clerk to read and grasp.

An equally important reason to strive for brevity is that saying more with less tends to force us to really focus our thinking. A first draft might contain lots of “throat-clearing,” or excess verbage as we struggle to figure out what we’re trying to say. Like the carving of a sculpture, however, revision into subsequent drafts should refine and clarify our point. We often see that what began as one exceptionally verbose argument is better expressed, and more persuasive, if broken into two or three separate points.

In Lawyering, James Freund makes this point about brevity:

“One of the grim realities of our profession is that lawyers tend to be terribly long-winded. . . . The most common enemy of conciseness is the lawyer’s reluctance to sort out the material from the insignificant. One hopes this doesn’t evidence his inability to do so; a lawyer who can’t tell the one from the other suffers from the most serious of shortcomings in his chosen profession. If he can distinguish significance but chooses not to do so — out of laziness, or a misconception of its importance, or bad judgment in his utilization of time — he is not beyond redemption; but the adverse effect on the reader is precisely the same as if he totally lacked the capacity.

I find conciseness in a written communication to be quite difficult to achieve at the outset. One doesn’t start out to write a concise piece. Until all the thoughts are in front of you, deciding what’s material and what isn’t can be a tricky task. Crispness is usually the product of a late draft in your rewriting process. As you re-read your draft memo, try to decide which of the thoughts are essential to the analysis, which are collateral to it (but still of some significance), and which are essentially irrelevant or immaterial. This last category should be deleted, as tending to interfere with the flow of thought. Matters that are collateral/relevant, however, should be retained without throwing the reader off the main track.” (50-52) (Emphasis in original.)

One thing I’ve observed about my own quest for brevity is that, after several years of practice, I have begun to find it easier to write more concisely from the very first draft. Anything serious still seems to require some revision (not to mention careful, careful, careful proofreading!), but because I approach the project with an expectation that it will ultimately be crisp and tight, my initial draft seems to reflect this plan.

*I happen to love Faulkner. But reading his best work, like the opening pages of Absalom, Absalom, can be really tough going. I doubt that even Faulkner would expect a judge to accompany him on that journey.

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