As a lawyer, you’re either a conversationalist, a counselor, a writer, a storyteller, or some mixture of them all. I spend a fair amount of my time reading or writing pleadings and briefs, a fair amount of time either preparing a story (through discovery and depositions) or telling a story (at a court hearing or at trial), and the remainder of my time counseling clients.
Consequently, I’m a sucker for any advice from writers and storytellers, and have previously referenced the methods of writers like David Mitchell and Philip K. Dick, as well as storytellers like Jay-Z and David Mamet. (I’d be remiss in mentioning David Mamet in an article about writing and advocacy without also also referencing Christopher Hitchens’ animadversion against Mamet’s book.)
So naturally I was drawn to NPR’s new story on Poet Laureate Philip Levine:
Levine’s work is most famous for its urban perspective, and its depiction of blue-collar life in Detroit. But while he was working in the factories, he found nothing poetic about them.
“I found the places hateful.” His job at Chevrolet Gear and Axle was hard, he says, “and the work was exhausting.” …
Why was it so hard? Levine quotes another poet laureate, William Wordsworth: “‘Poetry is made up of emotion recollected in tranquility.’ I didn’t have any tranquility,” Levine says. “I was full of anger. I was very aware of the fact that I was being exploited and the people around me were being exploited. There was a mythology about us: We were stupid and lazy and we deserved what we were doing, our dumb work.”
The whole article is worth a read, in part for his stories about that blue collar work, which remind me of Studs Terkel.
“It is the imagination that gives us poetry,” he says. “When you sit down to write a poem, you really don’t know where you’re going. If you know where you’re going, the poem stinks, you probably already wrote it, and you’re imitating yourself.
The real challenge is when language, instincts, technique and practice come together. Then, he says, “you have to follow where the poem leads. And it will surprise you. It will say things you didn’t expect to say. And you look at the poem and you realize, ‘That is truly what I felt.’ That is truly what I saw.”
It’s not hard to apply that to legal writing or to trial advocacy. I remember reading some time ago a fascinating time on brief writing — I don’t remember where, so I’m going to guess it was on Evan Schaffer’s trial practice blog in the legal writing section or Raymond Ward’s (new) legal writer — that recommended lawyers begin writing their response to motions before they even read the motion.
On the one hand, that’s terrible advice, architectural plans for an echo chamber.
On the other hand, few motions to dismiss, for summary judgment, or for anything else are truly surprising. We generally know what the argument is before we see it, and beginning your response before reading the opposing party’s brief helps ensure that you keep the brief on your intellectual turf, so to speak.
There is a lot of value in ‘following where the brief or argument’ leads. This week I’ve spent a lot time responding to a motion to dismiss an amended complaint. This second motion isn’t much different from the first motion to dismiss the original complaint, and so I could have just cut and pasted from my prior response with a few changes here and there, but writing it again revealed far cleaner and crisper ways of making the same points and helped me ensure that the additional facts in the Amended Complaint could be worked into the new response.
I even omitted a few arguments, like the judges say you should (and which I normally don’t like to do). I followed the brief where it lead, and it was better for it.