On the Papers. Understanding How Our Concept of the Writing Task Got Arrested at the Student Level and What to Do About It

• Author: George D. Gopen
• Pages: 15-16

On the Papers

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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GEORGE D. GOPEN

The author is Professor Emeritus of the Practice of Rhetoric at Duke University.

How often do you, after reading a legal

document, want to run into colleagues’

offices to share the document with them

because it was so clearly and engagingly

written? Not often enough. Probably not

often at all.

Why is this the case? Is it because legal

thinking is so hard that legal reading must

be equally hard? That is a misconception.

Is it because lawyers tend to imitate

the writing they are constantly forced to

read? In part.

It is worse than you think. I was mar-

ried to a state appellate court judge for 10

years. I watched her work. I watched her

have to do the work the lawyers should

have done for her. Many a time I have

heard her say that 95 percent of the briefs

submitted for her cases were of little use—

sometimes no use at all—in her decision-

making process.

I think the problem started when we

were students, from the very first grade

in which we were assigned writing. If we

are lawyers, we were probably pretty good

students. We learned how to succeed at

the writing task we were given: (1) gather

information and ideas; (2) arrange them

on the page in some kind of orderly man-

ner; (3) choose the best words you know

to fill the sentences; and (4) be sure the

whole thing is error-free. If you fill the

right number of pages on the topic as-

signed, you cannot fail. If you do it with

energy, you will do well. And if you have

improved since last time, your grade will

continue to climb.

No one told us that when we gradu-

ate for the last time, our rhetorical task of

writing changes. In school, we were writ-

ing for an audience that had nothing to

learn from us. We assumed teacher was

the expert, knowing 100 percent about

anything we were assigned to write. We

were performing; teacher would judge

the performance. Our rhetorical task was

demonstration. We needed to demonstrate

to teacher that we were worthy of a high

grade. Depositing stuff on the pages usu-

ally did the trick.

That task often seemed to us burden-

some, perhaps even odious—with good

reason. The whole process was artificial.

We were writing for an audience that al-

ready knew everything we could say. We

were writing for a fake audience.

When we become lawyers, the rhetori-

cal task changes dramatically. Now we are

the experts, the ones who know everything

about what we want to say. Our readers

read us in order to find out what we have to

say. Our success does not depend on filled

pages or on energy expended and certainly

not on whether we have improved since

last time. The judgment of the quality of a

piece of writing in the professional world

is based on this simple question: Did the

reader receive what the writer was trying

to send? If the answer is “yes,” the writing

was good enough; if “no,” it wasn’t.

So our writing task as lawyers is not

the student’s task of demonstration; the

lawyer’s task is one of communication.

How Lawyers Think About

Writi ng

How do many, perhaps most, lawyers

think about the writing process? I fear

most look upon writing as what is left

to be done once all the interviewing and

researching and thinking has been com-

pleted. Now it just has to be “reduced to

words.” Wrong from the start. Writing is

part and parcel of the thinking process.

You think in order to write; you read what

you have written to judge what it is you

have thought; and that leads you back to

thinking. “How do I know what I mean

’till I see what I say?”

If the final judgment of a piece of writ-

ing is based on what the reader made of it,

then the best way to get greater control

over writing is to understand how readers

go about reading. That has been my work

for more than four decades.

UNDERSTANDING HOW

OUR CONCEPT OF THE

WRITING TASK GOT

ARRESTED AT THE

STUDENT LEVEL AND

WHAT TO DO ABOUT IT