Blood, Sweat, Tears, and Tedium

By Howard Posner

Writing is easy," journalist and screenwriter Gene Fowler once said. "All you do is stare at a blank sheet of paper until drops of blood form on your forehead." Occasionally I get asked whether there's an easier method.

The answer is simple. First, gather your raw materials: research the law, learn facts, brainstorm ideas, and choose the best ones. Then outline. Start with the major points, then fill in headings for subsidiary points. By then, you should be ready to write text. Compose topic sentences, followed by explanation, argument, and transition. When you've finished, hone the result with whatever revision you deem necessary.

The whole operation should run like a well-oiled machine. Or so I'm told. I wouldn't really know; I don't think I've ever actually done it. I'm not temperamentally inclined to let organization drive process. If I have a good idea, I want to get it on the page before I forget it. Sometimes, when I've gotten all my ideas on the screen, they amount to an outline; sometimes they're a bunch of random words mixed in with fully composed sections. I don't subscribe to the notion that starting to write without an outline is like starting a trip without a map. Just as I can drive from Los Angeles to Coalinga without a map, I often know what I'm going to write without an outline. And outlining doesn't always prevent wasted effort. You may have to actually write a section or argument to find out that it doesn't work. Or, as E. M. Forster put it, "How do I know what I think till I see what I say?"

Detailed structural outlining works for many lawyers, and if you're meticulous and organized, it's probably both easy and necessary. And if you're working with others who may have to step into the process at any point--or you're working under someone who insists on an outline--then it's necessary even if it isn't easy. But time is our most precious asset, and I feel for lawyers I've known who got bogged down in outlining when they could have spent that time bogged down in actual writing.

Any creative process is, by nature, an individual thing--and one approach can't fit everyone. This is as true at the end of the process as at the beginning. Nonetheless, I've encountered remarkably strong opinions about rewriting. In this magazine's June 2000 issue (a year or so before I started this column), a former clerk for Ninth Circuit Judge Alex Kozinski wrote an article about how he had truly become a writer in the judge's rewrite purgatory, which could involve "70 or 80 drafts of an opinion, usually over a period of months." He noted that Kozinski was "one of the best writers on the federal bench," a characterization not likely to have Shakespeare looking apprehensively over his shoulder.

I'm sure it was no coincidence that the facing page of the same issue had a piece by Ninth Circuit Judges Stephen Reinhardt and, you guessed it, Kozinski himself, explaining why the Ninth Circuit didn't allow citation of its unpublished decisions. The gist, not surprisingly, was that the published opinions took so much time to produce that there was no time left for making the unpublished ones cite-worthy.

The following September issue of California Lawyer had letters from lawyers who didn't think much of the judges' views on unpublished opinions, a letter from another former Kozinski staffer seconding the article about rewriting, and a letter from attorney Carlo Coppo of San Diego County disputing the notion that "writing is rewriting."

"Art is in the creation," he wrote. "Writing is mere execution; rewriting, self-doubt." His professional creed was, "If you conceive it in final, it will be in final." He enforced revision limits in his law firm, and thought that in doing so, "I helped create poets, and save forests."

My only exposure to Mr. Coppo or his writing was that one letter, which was certainly a quality piece of wordsmithing. But I wouldn't generalize either from him or from Judge Kozinski, and I see little point in making a general principle of rewriting, or refraining from rewriting--or even having an opinion on the subject as an abstract idea. It's nice to know how much care Judge Kozinski takes with published opinions. But if I were paying my lawyer by the hour, I'd prefer Mr. Coppo's approach, which would spare me the cost of 70-odd rewrites.

Any decent athletic coach or music teacher knows that practice does not necessarily make perfect, unless you practice perfectly. Mere repetition or drill simply instills habits, and if they're the wrong habits, practice will be counterproductive. That's why the world is full of guitar players with prematurely degenerated knuckles and basketball players who reach with their hands on defense instead of moving their feet.

Rewriting is likely to bring in more of whatever the writer brings in the first place. If your writing is wordy or clumsy or dull, rewriting is as likely to make it wordier or clumsier or duller as to improve it. Revision improves writing only if the reviser is someone who knows how to write well in the first place. To put it another way, Judge Kozinski isn't an excellent writer because he's a compulsive rewriter; he's a compulsive rewriter because he's an excellent writer.

As a general rule, the best treatment for a finished draft is a fresh pair of eyes: someone else's--or your own after a few days, if you can afford the luxury of time. If I let something sit untouched long enough for me to disengage from the process of writing it the first time, I can see where I need to clarify sentences that seemed clear at first, and see errors that are no longer concealed by familiarity. But beware: Someone else's eyes can be a curse as well as a blessing. We've all been relieved when someone editing our work prevents some stupidity from reaching the intended reader. And we've all seen our brilliant creations muddled by someone who just doesn't get it, or a revised draft that is just a bad compromise between conflicting ideas.

Just remember that putting something down on the page is not necessarily a reason to keep it. In writing, you murder your children. For example, I started this column with a half dozen brilliant ideas. None are in the finished version.

Sweat blood in whatever way works for you. Just don't let the reader see you sweat.

Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.

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