5.3. Strategies of Writing

• Jurisdiction: United States
• Publication year: 2021

5.3. STRATEGIES OF WRITING

Now you must make order out of the chaos of the record. Good writers report a continuum of composition methods. At one end cluster writers who start with a detailed outline and strictly follow it. I assume you were taught how to do this in high school or college. Gutkind argues against formal outlining.¹⁰ Clustered at the other end are writers who begin at what feels like a beginning and write until the story feels finished. You may have encountered this in a creative writing class. Few lawyers use it in the extreme. I will not advocate radically changing your basic composition method, but I will try to tweak it.

Consider writing the way a tree grows. British physicist and theologian Andrew Steane explains. "When you see a tall tree reaching into the sky, with a thick trunk and strong branches, able to live for centuries, you might think that it grew from a seedling by pasting on layers of cells made from material drawn up from the ground, the way many buildings are made." But that's wrong. About a sixth of a tree's weight and all the carbon come directly from the air. Growth happens all over the tree as each bud uses solar energy to organize the chemical chaos of surrounding air into of wood, leaf, and flower. Structure comes from sunlight and DNA.¹¹

Like trees, great stories have structures anchored in the ground of human experience. But also like trees, they do not grow by force from below. They grow at buds where the writer applies the energy of inspiration to organize the chaos of facts. Operationally for the appellate lawyer, this means joining molecular facts from your abstract or notes into scenes—the twigs, leaves, and flowers of the story. Then the writer distributes these elements in the traditional structure of story. So powerful is this process that sometimes I wrote and clustered scenes before finding stories and issues.

After composing scenes, and whether this makes your process more or less formal, consider adopting the flow-like method John McPhee explains in his excellent chapter on structure.¹² Among other benefits, using topic flow rather than the alphanumeric outlining frees the mind to write outside chronology and to embed information from outside the story. This method worked for me, and it was fun.

5.3.1. How to Deal With Incoherence

Perfect stories bless lawyers about as often as wolverines dance on lawyers' backyard patios. Records almost always contain adverse facts that the writers must disclose, even writers with the advantage of stating the facts in the light most favorable to their arguments.

You concluded the record presented an analytical base for arguing prejudicial preserved error and a story that is both internally coherent and consistent with the moral foundations that animate the applicable legal principles. You are writing the story, dedicating yourself to the internal coherence that will keep your reader comfortably in System 1, enjoying and accepting the story's viewpoint. Now a scene likely to wake up System 2 confronts you. What to do?

Minor Inconsistency

A relatively simple strategy works for minor, miscellaneous inconsistencies within story elements. Three tactics compose the strategy, and they work best when deployed together. Tactic one: aggregate the inconsistencies in as few scenes as possible. Tactic two: isolate the incoherent scene from the flow of the story, avoiding direct clash, and using an opening transition that credibly frames its triviality. Tactic three: devalue the incoherence with diction (particularly starving the scene of intimate details) and syntax (particularly writing it in the passive voice).

Suppose, for example, that the story of Red Dog Creek was a necessary disclosure that could have distracted from John Roberts's foundation for his Alaska v. EPA brief. Here's how he might have written that scene.

The study areas for permit applications are described in statutes and regulations, which do not make the names of local geographic features notable. Among the discolorations in the hills and creekbeds of the DeLong Mountains in Northwest Alaska is the wide drainage where the mine in question is located. This valley was among many where local Native Alaskans could not catch fish. The U.S. Geological Survey learned about the valley from an air-prospector who did not follow up. Exploration of the area eventually led to the discovery of zinc and lead deposits. After the prospector's death, the creek was named for his dog.

I once employed this strategy so effectively that opposing counsel did not find my disclosure of unfavorable facts and accused me of omitting them. I did not reply to the accusation. Why not? First, I would have emphasized the inconsistencies with the main flow of my story. Second, defending oneself—contrasted with using reason and authority to defend arguments—distracts and often dismays appellate judges. When my opponent repeated his accusation at oral argument, one judge retorted something like, "he put them in plain English on page 15 of his brief, and they don't look very important to me anyway." That was a delightful prelude to a reversal favoring my client.

Barricades

Several strategies may work when incoherence blocks acceptance of the story. Tactics of the first strategy apply but do not suffice. Bad facts form a major part of your story and must be harmonized within the story.

Consider whether the story should come from the history and moral values of the law on which you rely. The facts then fill in. Because that strategy may be prime even when the factual story is reasonable, I treat it as a separate concept in subsection 5.3.4.

A second approach is narrowing the perspective of the story teller. The second Jacobson story provides a reasonable illustration. Jacobson committed the crime; that reality and its unavoidable facts make up the incoherence in the story. And roughly, Justice White did what one usually must: embrace a truthful but minimized version. As in Jacobson, the minimized version fills with "nots" that require their own compelling detail. First, everything Jacobson did was legal until the law changed around him. Second, he engaged in no related sexual behavior. Third, even the materials depicted only nudity, not sexual behavior. Fourth, his testimony, given his personal history, makes him seem naïve, not nefarious. All those facts about his crime cut—as lawyers and judges love to say—both ways.

Properly written, the two-way facts make an internally coherent story that government agents induced Jacobson's only illegal conduct. On the negative side, they cause the reader to speculate whether Jacobson would have ordered the illegal materials had he known of the change of law. And the story remains inconsistent with the moral foundations of the new law—care for children and sanctity. But those moral foundations are not forcefully expressed when the victims are absent abstractions and the materials do not depict them suffering unwelcome sexual contact. One can care as much about Jacobson and his father as about the boys in the pictures. The government agents can appear to violate the fairness moral foundation and to be agents of oppression—at least deprivation of liberty. And without sex, the sanctity/degradation moral foundation seems not to be a strong operator. As I have said before, Jacobson's is not an easy story, but the case illustrates that by embracing truthful but minimized bad facts, one can write an internally cohesive story connected to moral foundations that undergird potentially winning legal arguments.

Disputes over child custody, support, and visitation usually involve difficult behavior by everyone claiming an interest in the child. The advocate should consider writing the story from the perspective of the child and weaving the adult client's story into the mix as late as possible.

A difficult tale may fit into a stock story or archetype that gives it inherent credibility.¹³ The archetypes most likely to succeed involve making the client into the central character of the story and include overcoming the monster (also known as David versus Goliath and beating the bully), the hero's quest, and rebirth. A...