Just say it!

It is a truth often assumed that a lawyer in need of an argument must arm herself with rules stated in legalese. There could be few more difficult assumptions to overcome in educating new lawyers.

One of my more profound light bulb moments as a young lawyer came a few months into my first job, after I’d written the first draft of a brief for a partner. After he’d had a chance to review the draft he called me into his office to discuss it. I entered, carrying, of course, the draft that by this time I’d virtually memorized. He asked me why I thought we’d win. I glanced at the draft and he said, “No. Put it down. I want you to tell me in your own words, in plain English, without telling me what the cases say.” So I slowly sputtered out a brief explanation in plain English, thinking that this was going to be painstaking, that the simple plain English explanation would be followed with a discussion of each case and the reasoning of each judge in each case, and then we’d have to cobble all these pieces together . . .

In response to my plain English explanation, he said, “Then why didn’t you just say that?” I blinked, and asked in stupid amazement, “I can do that?” He laughed, and answered, “That’s exactly what you are supposed to do.” Wow, just explain in plain English, without resort to legalistic rules and long chains of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly difficult one to grasp.

I was reminded of this today when I read the post at Lawyerist.com entitled “Improve Your Legal Writing: Just Say It“:

Say what you want to say. Do not imply it, do not hint at it, just say it. This can be difficult at times, but it will improve your writing, and make your arguments more persuasive.

The life of the law is a life of art

Last night, I came back across the words(pdf) of my former professor, James Boyd White, that express eloquently my view of the common ground shared by artists and lawyers:

As I conceive it, the life of the law is . . . a life of art, the art of making meaning in language with others. Its goal, like that of other arts always imperfectly attained, is the integration into meaningful wholes of the largest and most contradictory truths – the incorporation into the case of what can be said on both sides of it, the recognition in our discourse of other ways of talking – all under the ruling requirement that what we say makes sense. The lawyer must know what the literary person knows, that he or she is always one person speaking to others in a language that is contingent and imperfect. And the excellence of mind required of the lawyer, like the excellence of the composition the lawyer makes, is integrative: a putting to work in the same text of as many of one’s resources and capacities as possible in an meaningful way.