I Am Richard Posner…and So Can You?
The Daily Beast is running a Q&A with Richard Posner called “How I Write.”
Judge Posner is a brilliant and prolific writer. As a person who writes for a living, I was naturally intrigued. Also, I picked up the link from U of R Professor Kevin Walsh‘s Twitter feed (@kevincwalsh). Professor Walsh has a habit of sharing fascinating arcana, like the story behind the terrifying hat that Justice Scalia wore to the inauguration.
Unfortunately, except for one incredible line, the Posner article is a bit of a let-down. Here’s the line:“Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords.”
Hilarious. Also, Judge Posner writes about 90 opinions a year and considers the average SCOTUS justice’s workload to be “ridiculous.” But aside from those zingers, there’s not much substance for practitioners (and in fairness, practicing lawyers likely were not the article’s target audience).
Even so, here is the titular explanation of how Posner writes: “I don’t really have any routines. Well, if I’m at home or in the office I have a desk and a computer. And I write.”
Not super helpful. Judge Posner is brilliant and prolific because he’s brilliant and prolific. Got it.
I am neither, but I write for a living and somehow manage to churn out enough marginally competent work product to keep the lights on (this blog excepted).
Here’s how I write briefs:*
- Review. I review the record (on appeal) or the pertinent facts (in the trial court) to get up to speed.
- Brainstorm. I brainstorm potential appeal points and arguments, writing all of them down in a mind map/whirly-bird outline. Sometimes it’s color coded. I find that worrying too much about the law at this point will limit my creativity. For now, it’s just facts and equity and trying to generate as many ideas as possible. If I come up with a factually compelling argument for a fair result, I will most likely be able to find a legal framework to support it.
- Research. Now that I have all of these great ideas about what the trial court might have done wrong, I do some legal research to see which (if any) have merit.
- Brainstorm Some More. More brainstorming now that I know the law. Also, at this stage I start formulating specific arguments . . .
- Review/Research Again…and then I inevitably have to learn more facts and law to test my new arguments.
- Outline. Taking my color-coded absurdity of a mind map, which has now been highlighted and overwritten beyond legibility, I draft a very careful, full-sentence outline of my brief. This step is tough. I try to draw connections from all of the various strands of my brainstorming, drop the stuff that doesn’t work, and present the stuff that does work in the clearest, shortest way possible.
- Write. This is the fun part. It goes by very quickly once I’ve outlined, and I try to do it all in one sitting. I use Dragon NaturallySpeaking 11.0 with a silly headset to dictate my brief directly onto a screen. The software is amazing and fast. I look utterly ridiculous, but it works. I guess this is the “writing” part.
- Edit. This is by far the hardest step, and the key to good writing. I think that Stephen King said that a good writer can cut half the words from his first draft. I’m not quite at that level, but I do cut loads of material from my first drafts–so much that I actually create an “Outtakes” document to store it, just in case it might be useful later. But here’s the real challenge with this part of the process: the stuff that’s the most fun to write–the clever turns of phrase, the biting comeback–is often the least useful to the Court, which just wants to learn what it needs to know to get to a legally correct result. The Court is not interested in how clever you are, or what a fine young writer you have become. It just wants results.
See? Talent is overrated. Sure, I may not be brilliant like Judge Posner, and following this routine will certainly keep me from ever being as prolific, but even a chump like me can learn to write
* Again, to be excruciatingly clear: This is how I write briefs. I give blog posts minimal thought or editing. They’re lucky if they get a spell check.