What do lawyers actually do?

MOSKOVITZ ON APPEALS

Your business card probably calls you a "lawyer." But that doesn't say much about what you actually do all day. "Carpenter" would conjure an image of you sawing boards and hammering nails. "Lawyer" probably brings up a picture of what one usually sees a lawyer doing on TV: arguing in court to judge or jury. But only a few members of the bar spend most of their waking hours doing that.

If you made a movie showing your usual day at work, what would the viewer see?

A movie of my day would show me reading and writing.

Plus some talking on the phone -- to other lawyers, or to a member of my appellate team, or to my paralegal. And, because I'm an appellate lawyer, once every few weeks it might show me donning my bar mitzvah suit (still fits!) and trundling off to court, then rising up on my hind legs to orally argue a case. My movie would also show me staring out the window or wandering around my garden, picking a weed or two. That's when I'm doing my most important work: strategizing. (My toughest advocacy challenge is convincing my wife that I'm working when I look out the window.)

But mostly reading and writing. Not much of a plot, and no action. But that's what I do for a living.

So let's explore how lawyers might learn how to read and write better.

Emulate Great Writers?

A trial lawyer who brought me in to handle an appeal told me, "You write like Hemingway." A supreme compliment, no?

Or was it? I asked him to elaborate. He said, "Here's how you write: 'Joe went to the store. He bought a loaf of bread. He went home.' Short and simple, just like Hemingway."

Still a "compliment?"

He did not put my writing in the class of other great writers who were the complete opposites of Hemingway -- like James Joyce and William Faulkner. They wrote long, complex (but beautiful) sentences and paragraphs. No one would mistake my writing for theirs.

So? Should you model your brief writing on Hemingway, or on Joyce and Faulkner? Or on some other genre? Or maybe on none of them?

Many books on writing advise people to broaden their reading, seek books by renown authors, and try to emulate them. I'm not so sure how this applies to lawyers. Reading great writers can be stimulating, inspiring, and just plain fun. But whether it helps a lawyer write more effective briefs needs some thought.

The place to begin is the goal. The goal of the writer turns on the goal of his readers.

A novelist knows that his book will be read by readers seeking to be entertained, sometimes titillated, sometimes educated, often provoked. He knows that his readers will be in no rush. They might enjoy the plot, the characters, the action -- and the author's choice of words and presentation. I find no greater pleasure than spending several minutes soaking up a single sentence of one of my favorites -- amazed at how he or she used exactly the right words to conjure an emotional or visual image. Time is no object. With some books, I'm even sad to reach the end. And there's some I've re-read two or three times.

But readers of other writings have quite different goals.

Suppose you are writing a manual on how to repair a certain commercial airplane. Your readers will be experienced airline mechanics and engineers. They probably have two primary goals. The first is getting it right -- perfectly right, because an error could lead to catastrophe. So the manual must be very precise and very accurate, with none of the subtleties and ambiguities that make for great novels. The second goal is efficiency, because these guys charge a lot for their time. They don't want to spend expensive minutes deciphering your sentences and looking up words from your fancy vocabulary. You'd better make it short and simple. Entertainment? Not a goal. And trying to entertain might undercut the other more important goals.

Who's your model: Hemingway or Faulkner? If you write an airplane maintenance manual in Faulkner's style, you'd better keep your eye on the sky, because the 747's might start raining down any minute. But even Hemingway wasn't telling readers how to keep planes in the air. Focus on the needs of your readers, not Hemingway's or Faulkner's.

Write for Your Readers.

An appellate lawyer's readers are appellate judges and research attorneys. They have more in common with aircraft fixers than consumers of novels. They will get most of their reading enjoyment after work, not during work.

So let's see what they want to read in a brief.

Their goals are reaching a just result -- with the least time and effort. Show them the justice of your cause, and make it easy for them to digest it effortlessly and efficiently. My goal is to enable these readers to read each sentence of my brief only once -- with no need to decipher a phrase or look up a word, and no need to go back and read an earlier part of the brief to check a fact or understand the context. One smooth reading, from Introduction to Conclusion.

So for me, "Joe went to the store, etc." works best to achieve these goals. Not quite the "Dick and Jane" books we read in first grade, but close. Not especially pretty, but it seems to work.

And if along the way I can also make my brief interesting, all the better. A judge who enjoys reading my brief might be in a better mood to accept my arguments and rule for me. So I try to liven it up with a good story in my Statement of Facts and thoughtful analogies in my Argument section.

Next column: A report on a new book of ideas on how to write clearly.