Sometimes, the structure and its elements come quickly. You’ve figured out exactly what the case or issue is about. You’ve boiled it down, given it a memorable theme, and decided how to succinctly set the scene. You know exactly what you want the court to do, the steps the judge must take to get there, the status of the law on the question, the strongest reasons why the court should grant your request, the likely objections, and the best way to eliminate them. You’ve laid all this down in the form of an outline. Bravo! You’re ready to start writing.
Other times, however, the path may not be so obvious. Maybe you haven’t determined the main issue. Maybe you feel overwhelmed. Don’t let that uncomfortable feeling stall the project, as you’ll risk spewing out a rambling mess right before deadline. You need to get started, but you shouldn’t start writing the brief until you fully understand what you’re writing about.
So what should you do? Here’s an idea borrowed from John R. Trimble’s Writing with Style: identify your thesis or main point. Write down on a piece of paper, “I contend that —-,” and finish the sentence. Then make a list of concrete details and some citations to support it.
But if you can’t do that, then it’s time to release your inner madman.
The “madman” is one of the four characters that writing expert Dr. Betty Flowers, the former University of Texas English professor who now directs the LBJ Library, came up with to analogize the four stages of the writing process. The “madman” is the persona who generates the ideas, the “architect” arranges them, the “carpenter” builds (or expresses) them, and the “judge” does the critique.
The madman sets the wheels in motion. He “is full of ideas, writes crazily, and perhaps rather sloppily, gets carried away by enthusiasm and desire,” Flowers has said. Legal writing guru Bryan Garner, in The Winning Brief (3d. Ed.), describes the madman phase of legal writing as the period when the attorney is taking “copious notes, jotting down ideas and possible approaches to a problem.” The key to a successful madman session, he says, is to keep the judge at bay. Stifle the critic and let the ideas flow out. Don’t try to order or evaluate your thoughts yet, and don’t worry about developing the full arguments. Feel free to draw a diagram, or make an analogy. And think constantly about how best to get the ideas across.
The madman and the research stages can be combined. As you jot down ideas and research the facts and the law, more ideas will come. Take a walk, or maybe a shower. Sleep on it overnight. Clarity comes after a period of percolation.
About the author:
Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She became a licensed California attorney in 2010 and specializes in legal research and writing. She can be reached at firstname.lastname@example.org. Follow her on Twitter at @SavannahBinSF.