Choice of Words

Is there a science in choosing words? We choose words in an effort to ‘fit in’. Sounding odd is a sure way to be left out. The audience decides the choice of our words. That’s the reason we don’t care about political correctness while writing on napkins. One fundamental truth I reheard recently: Words have meaning. So why not promote the words which give the better meaning. Why not choose clarity over correctness. Now for the question: when you need directions (yep, we need directions all the time), which word would you use: would you ask for the ‘toilet’ or the ‘restroom’? Apart from how these words sound and how they are perceived, do their hidden imports affect their usage? Some toil, some rest.

Maxim # 9/99: There are No Rules

There are no rules here. Just signposts or what I call ‘maxims’. They are short, pithy and ease to remember. Take it, break it, remix it, adopt it, fine-tune it and do anything else with it that can make your writing experience better. I find it amusing that despite the great amount of writing our legal careers demand, there is no structured way of how to do it. Writing can be stressful if you operate under a strict set of rules. Little does mean that we can operate without any discipline (Well, there’s another maxim for that). For some undisclosed reason, we will try to have only have 99 of them. That’s it. Will either stop the maxims at 99 or resurrect them as something else. And for no reason, they will appear as they like, when they like and in the order they like. So here's the ninth maxim first. There are no rules.

Why Write? (The Purpose of Scholarship)

If the purpose of writing has not troubled you, consider yourself blessed. You can then, I would assume, write without worrying why you are doing what you are doing. That's bliss for some writers. But others like Professor Stephen Carter have diverted their academic energy not only in advancing their scholarly pursuits but also to introspect on how they did it. In Academic Tenure and "White Male" Standards, Professor Carter discusses the value of scholarship and puts a high standard on the why of writing. For him, the purpose of scholarship is to increase human knowledge. Inspired by his teaching of Patent Law for many years, he comes up with a standard to gauge scholarship (on what makes it good or bad). So, here are the two very basic requirements of scholarship:

(a) Domain Knowledge (The scholar must know the field of his writing);
(b) Novelty and Non-obviousness (Good scholarship should not only do something different from what past work has done, it should also make claims that are not obvious in the light of past work).

That's a hard ask. Professor Carter admits that it may not be possible to do this all the time and doesn't claim to have done it himself. But his insight provides the critical link between the purpose of scholarship (the advancement of knowledge) and evaluating the quality of scholarship.

There is a chat-room analogy (akin to Professor Carter's standard) on how to have a smart (scholarly?) persona on the web. Given the anonymity that the internet provides, you can do this by two ways. Enter a chat-room you know. Open your mouth when others can't.

4 Things About Legal Writing

There are 4 things about legal writing that makes it special: Words, Style, Resources and Time.

Words - If law is a language, then legal jargon is the kind of vocabulary that imparts personality to this language. Without jargon, it is sometimes impossible to identify something as legal. Legalese is no longer a form now, it is the content.

Style - Why is it that Justice Krishna Iyer uses a different style when he writes a column for newspapers? (Or did I get this wrong – Have I spotted a distinction that does not exist?). Many a times the audience decide the style of writing. A blog post is very different is style from a peer-reviewed journal publication. Your style can be human-readable (here is the human-readable version of a creative commons licence) or otherwise. What you write may be read by clients, lawyers, judges, students, managers and a variety of people who require to be addressed in a particular style.

Resources - Legal writing requires more than a fertile imagination to flourish. Unlike fiction, it requires verifiable resources and references. The resources can be statues, case laws, text books, treatises and the like. Your resource can greatly improve the quality of your writing.

Time - Legal writing is enriched when you do something other than plain writing – teaching, training, practice, counselling. Since most legal writers do something other than just writing to make a living, making time for writing becomes difficult. If you are in academia, there is so much to write and yet so little time to write. In practice, you do a lot of writing in the fire-fighting mode – filing suits within deadlines, drafting agreements on demand, sending written opinions to clients and many other things. Legal writing is a task mostly done for others. Apart from your Will, there’s hardly anything legal that you write for yourself.

These form the what, how, about and when of legal writing. Knowing these elements and learning how to manage them should make legal writing better.

Taking Writes Seriously

Let’s face it: there is no humour in legal writing. In his ‘farewell’ law review article 'Goodbye to Law Reviews', Professor Rodell explains why:

“Moreover, the explosive touch of humour is considered just as bad taste as the hard sock of condemnation. I know no field of learning so vulnerable to burlesque, satire, or occasional pokes in the ribs as the bombastic pomposity of legal dialectic. Perhaps that is the very reason why there are no jesters or gag men in legal literature and why law review editors knit their brows overtime to purge their publications of every crack that might produce a real laugh. The law is a fat man walking down the street in a high hat. And far be it from the law reviews to be any party to the chucking of a snowball or the judicious placing of a banana-peel.”

There is neither passion nor courage in legal writing. As Professor Rodell laments, “There are two things wrong with almost all legal writing. One is its style. The other is its content.”

Goodbye to Law Review is a must-read for anyone who would take writing seriously. Fat Man Law will try to see how that can be done without getting serious.