Welcome to Law and Literature!

books-wallpaper-books-to-read-28990406-1024-768Do you wonder whether your legal education and your legal career can be part of a deeper, more integral vision of the law?

A vision of law that embraces as much of your imagination as intellect?

As much emotion and intuition as analysis and synthesis?

And as much story as rules, doctrines, and legal thinking?

If these questions spark some wonder in you, then you have come to the right place.

Law-Lit’s 3 promises:

  1. You will learn helpful, meaningful things about law, which is to say about yourself and your relationship with law. Law is far more than a set of rules and doctrines to guide social conduct.
  2. Law is a way of life, an ethical undertaking, an intellectual and emotional and – just as important for our study together- imaginative calling.
  3. This imaginative perspective combines stories, writing, and values about law in great literature with your conventional legal studies to deepen and enrich your education.

But law-lit doesn’t merely promise to improve your experience in, and of, the law, it promises also to improve your experience of legal education and practice.

Yes, law-lit makes the bold claim that you will have fun reading, contemplating, and discussing great works of fiction and nonfiction about the law.

Imagination, enrichment, and fun thus serve as our guiding lights toward . . .

Law-Lit’s 3 goals:

  1. To become better legal storytellers.
  2. To become better legal writers and communicators.
  3. To become more ethically attuned to the challenges and rewards of our legal careers.

Writing the Abundant Heart: Theme in Law-Lit

imgresWhat do you care about when you’re immersed in reading a good story?

Better, as a writer, what do you want readers to care about in your own writing?

Better still, when our readers set down our writing, what lasting values and emotions – what enduring feelings – do we hope to inspire in them?

Answer these questions – no easy task – and we just might find some understanding of theme in our writing. That notoriously obscure but most vital of story ingredients – theme. It is the organizing principle, the emotional core, the value-laden heart of our writing and reading.

This is equally true of persuasive writing in legal advocacy: theme both drives and organizes our reader’s emotional engagement. If well crafted, our theme works beneath the surface, unspoken and implicit, where its persuasive appeal nudges or taps our unconscious, the place from which we decide most matters in our lives.

But theme doesn’t tell us how to live well or relate to others or make the right decisions. It shows us the way. It shows us what’s relevant to our lives. It shows us what the story means. It is inherent, generative, and implicit.

So, the first rule of theme is not to talk about theme in your writing – at least not explicitly in your writing. A surefire way to kill a theme is to call it out directly in your writing.

The second rule of theme is let theme emerge, at least in part, organically from your writing. In other words, extract theme as you write. Don’t bring theme to your writing. No agendas, please.

Still, you may want a few techniques if you’re not so comfortable with the organic emergence of theme, or if want to start with theme in mind to usher your writing. If so, then writing coach Jack Hart offers the following advice in Storycraft: The Complete Guide to Writing Narrative Nonfiction:

  1. Give your writing a title at the very start to orient you to its essence, to drive your narrative or argument. The title should aim for the emotional center and value conflict inherent in your vision of the piece. This may seem tepid advice, or even ill-suited at the outset of any project, but effective theme-driven titles can serve as the most useful early organizing principle for your writing. They demand an overarching sense of your intentions as a writer, along with your best wishes for your reader’s interpretation. Keep in mind that your title/theme may change as your writing ensues. Be willing to change, again keeping in mind that your creativity and thinking will surely evolve through the act of writing.
  2. Come up with a theme statement, 1-2 sentences that capture the core emotional meaning and value at stake in your writing. One thought experiment that might help you with this: imagine sitting around the kitchen table with close family or friends enjoying coffee during an honest, open talk. They ask you what you’re writing is really about, what matters most in what you’re working on. Now give your answer in less than 10 seconds. Work to crystallize this answer into a universal value statement true to both the particulars of your writing and the nature of the world in which we live. A tall order, I know. But this is what makes themes so compelling – their jointly universal and personal appeal.
  3. Similar to this last technique, but more focused still, find the one sentence that expresses your writing’s “irreducible meaning,” in a phrase made popular by screen writing coach Robert McKee. In searching for this irreducible meaning, you should concentrate on finding the right verb, preferably a transitive one, that takes a direct object. This shows causality. And causality is crucial to theme because it shows your reader how the world works and what they can do to influence it. For instance, “Actions speak louder than words” shows the potency of the one-sentence theme reduction with a crisp, simple verb.
  4. Lajos Egri promotes a structural approach to theme, advising us to devise a theme with 3 story ingredients in mind – (1) character, (2) conflict, and (3) narrative arch. Thus, the theme “frugality leads to waste” (1) implies a frugal character, (2) suggests conflict through the verb phrase “leads to”, and (3) reveals a likely ending with “waste”.
  5. Collaborate with someone on theme by asking another what you’re writing is all about, whether it’s your editor or your friend or your imaginary ideal reader.

Whether we write with theme in mind at the outset, or allow theme to grow more organically out of our writing, or a little of both, these 5 techniques offer us choices as writers who care about our readers, who care about the quality of our own prose, and who seek to move others through the written word.

Law-Lit: Telling Better “Legal Stories”

images-2A winning legal argument works much like a compelling story. So much so, in fact, that we might say their overlapping functions follow their shared forms. These underlying forms are by no means equivalent, but their matching anatomy reveals how both good stories and good lawyers win us over.

Let’s take story first. What makes a riveting story? At least five essentials:

  1. Setting: selected details to create a story world that invokes our senses and suspends our disbelief
  2. Character: people who engender our empathy, who want or need, who struggle, and who change through conflict
  3. Structure: conflict-driven and causally connected events that culminate in success or failure for the characters
  4. Theme: a moral premise or underlying message about how we should live our lives
  5. Style: the artist’s stamp of skill, creativity, and expertise that lends to the story’s believability

Now compare the essentials of legal argument, broadly speaking. What ingredients yield the most persuasive legal positions?images-1

  1. Details: selected facts to invoke our senses relevant to the legal dispute, or what we call “legally relevant facts”
  2. Motives: parties in the legal dispute must engender our empathy – we must understand their needs, wants, and goals
  3. Coherence: conflict-driven legal reasoning (i.e., legal argument) coupled with story to create “narrative-driven argument”
  4. Theme: a moral premise or underlying message about how we should live our lives
  5. Credibility: the lawyer’s believability, stemming from skill, practical wisdom, knowledge, and expertise

As we see, these two structures track one another in meaningful ways:

  • Details – Setting: we select the right details to invoke the senses and create a believable, engaging world
  • Motive – Character: we engender empathy for the struggling people at the center of this conflicted world
  • Coherence – Structure: the conflict resolves through striving, confrontation, and change
  • Theme – Theme: moral underpinning that gives larger meaning and connection to us
  • Credibility – Style: skill, expertise, and credibility show in the work, the work of a professional who cares

imagesNot a perfect overlap, by any means, but surely one worthy of our further study and reflection. The key differences, too, deserve our attention. This is yet another law-lit mission for us – to improve our understanding and practice of both law and literature by exploring their fundamental forms. These forms might help us tell better “legal stories” to serve our clients and the legal system, never failing our overarching duty to truthfulness and justice.

Law-Lit’s Mission: Imagination, Emotion, Story

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  1. We revive our moral imaginations and intellectual empathy to compliment legal reason as a path to solving law’s problems.
  2. We engage our emotional and intuitive faculties as foundations for sound judgments in law.
  3. We discover storytelling, along with fiction and nonfiction techniques, as routes to understanding law and better writing in the legal profession.
  4. We aim to become more adept with stories, reading, and writing to enhance communication and persuasion.
  5. We seek to ethically attune ourselves to the rewards and challenges of a fulfilling career – if not a calling – in the law.

3 Reasons We Need Law and literature

  • To do Justice!  “That’s not my job, my job is to apply the law,” famously retorted Oliver Wendell Holmes. Hence the conventional view of law: we apply known rules to guide conduct and make results predictable. Justice is secondary, if it concerns us at all. But this view disappoints, leaves us cold. We need to commit ourselves to seeking justice. We need a live debate about fairness and reason in law. We share responsibility for justice, not to hide behind our professional masks, our lawyerly jargon, and our habitual responses to legal problems. We should not leave justice to lawyers only, certainly not of the Holmes variety, but should include other voices. Literature offers many wise voices. We should listen to them.
  • To know injustice. Stories focus on particular, concrete instances of injustice. It is easier to know injustice than justice. Broad legal generalizations and rules can seem vapid, incomplete by comparison. Exposing ourselves vicariously through literature to concrete harm, loss and unfairness refines our sense of injustice. Such exposure tests our general legal propositions. And it prompts us to imagine how law might change to rectify injustice. Telling stories can ignite our moral imaginations.
  • To stop cruel formalism. Forms used to seek justice can themselves be infected with cruelties and frailties that produce injustice. We must examine our legal system’s penchant for formulaic, pat approaches to legal problems. We must counter consistency, predictability and efficiency with the realities – if not virtues – of flux and uncertainty at the core of most efforts to seek justice. This is not to deny the preeminent values of our legal system, but rather to embrace the humility that should accompany our various legal forms, procedures and rules. Literature can chasten and instruct us.

See Outside The Law: Narratives on Justice in America by Susan Richard Shreve and Porter Shreve, Editors (Beacon Press Boston, 1997) (My summary above draws from and distills the book’s introduction by Martha Minow).

Why Law and Literature?

Simply put, law and literature helps law students and lawyers achieve the following laudable goals:

  1. To become better at persuading – especially writing. The best writer often prevails in our legal system.
  2. To make sure our persuasion satisfies high ethical standards. Never sacrifice your ethics to win.
  3. To give us a vocabulary to explain our dissatisfaction with much legal analysis. Law’s conceptual tools alone do not explain justice and injustice. We need more.
  4. To look outside the strictly legal domain for perspective on law – we can’t solve a problem from within that problem.
  5. To allow a more nuanced, sophisticated appreciation of ambiguity in law. Ambiguity about factual matters, about indeterminacy in legal decisions, and about what constrains our courts in interpreting and applying law.

These are just a few of law-lit’s contributions to the intellectual and moral lives of all those who care about law and justice.

Write with Style

Scholar Helen Sword studied as many writing guides as she could lay her eyes on. She saw six points of unanimous advice:

1. Clarity, Coherence, Concision: write sentences that are clear, coherent, and concise.

2. Short or Mixed-Length Sentences: write short sentences or vary sentence rhythm with alternating short and long sentences.

3. Plain English: avoid ornate, pompous, Latinate, and waffly prose.

4. Precision: avoid vagueness and imprecision.

5. Active verbs: active verbs should dominate your writing; use passive verb constructions sparingly.

6. Tell a story: create a compelling narrative.

On drafting sentences, in particular, she offers three guiding principles:

1. Employ plenty of concrete nouns and active verbs, especially when writing about abstract concepts.

2. Keep the nouns and verbs close together in your sentences, so that readers know “who’s kicking whom.” In other words, keep the actor and the action close together; express the crucial actions in verbs and the central characters (real or abstract) in subjects.

3. Avoid clutter: keep your sentences free from extraneous words and phrases.

How to put these principles regularly in play? Sword offers help here too.

1. Check the health of your sentences by pasting them to http://www.writersdiet.com. The “WritersDiet” test will categorize your sentences as “flabby” or “fit.”

2. Replace at least a few “be” verbs (be, been, is, are) with active verbs.

3. Identify your passive constructions and decide whether they add syntactical variety or offer other justification for inclusion. Too many passive phrases wilt the sentence.

4. Make sure at least one sentence per paragraph contains a concrete noun or human entity as its subject, immediately followed by an active verb.

5. A noun and its accompanying verb should pack a quick, one-two punch. Readers lose interest when more than a dozen or so words separate the actor (subject or noun) from the action (verb).

6. When writing about inanimate abstractions, still use active verbs to “animate” them.

7. Cut down on prepositional phrases, especially when they string together long sentence with abstract nouns.

8. When possible, explain abstract concepts using concrete examples (which, for brevity’s sake, I’ve violated in this very blog post!)

As many writers before Ms. Sword have pointed out: there is no writing, there is only re-writing. And, I would add, reading about re-writing. On that score, we should all read (and re-read) Ms. Sword’s engaging practical guide, “Stylish Academic Writing.”

Your Mind is a Storyteller

You have a storyteller living in your brain. Your storyteller takes up residence just above and behind your left eye, where according to neuroscientists he spins yarns of incredible literary coherence and sensitivity. Your storyteller crafts these convincing tales outside your conscious awareness, as he interprets the incoming flood of information to create an ordered and meaningful flow to your experience of daily life.

As this constant, disordered torrent of visual information enters your right eye, it travels to the home of your storyteller in your brain’s front left hemisphere. There the information is recombined by your storyteller into the coherent and meaningful tales you tell yourself. Your internal storyteller is so adept that it will literally concoct these tales by “reasoning backwards” from effects to their supposed causes. This fabrication of mind, also known as the “Sherlock Holmes Syndrome,” is inescapable. Like the literary detective, we all perceive the present world around us, pull personal clues from the welter of ambiguity, and build our  explanatory stories – no matter how improbable the chain of events as we reason backward from effect to cause.

It pays to be so narratively nimble, at least in evolutionary terms. Our world is full of stories we must detect to survive well. Think of the plots and gossip we must manage each hour of our social lives, let alone the millions of pieces of sensory input our brain must manage daily. To order this ambiguous abundance, our brains naturally tell stories. Without stories our experience of life would be incoherent, meaningless.

But our storytelling minds are deeply flawed. They can even be dangerous, particularly in the legal domain where witnesses must recount vital facts in narrative testimony, where lawyers’ arguments commonly take shape in narrative form, and where jurors tell their own stories to decide cases. Like any good storyteller, our minds hate directionless plots, unmotivated characters, and pure coincidence. Our storytelling mind is addicted to the meaning of a soap opera. So addicted, in fact, that our storytelling mind will create meaningful patterns in the world even when no such patterns exist. We impose patterns on the world. In the words of science writer Jonathan Gottschall, “the storytelling mind is a factory that churns out true stories when it can, but will manufacture lies when it can’t.” We should take note of how often it can’t.

Consider this thought experiment by Gottschall. What do the following three sentences mean?

Todd rushed to the store for flowers.

Greg walked her dog.

Sally stayed in bed all day.

What did you just come up with? If you’re like most of us, you tried to devise a story that connected these three sentences. In other words, you looked for the “hidden” story. Why did Sally stay in bed all day? Did it have something to do with Todd buying flowers for her? Is that also why Greg walked her dog? How do the three characters know each other – a love triangle, friends, family or complete strangers? You have no idea and neither do I. This is because the three sentences are completely random. They’re made up. But we can’t help ask and answer such questions as our storytelling minds look for the connections, the narrative, the meaning. Only there is no story here other than the one we concoct, just like Sherlock Holmes piecing together the strands of disparate clues into a tapestry of meaning and coherence.

This might seem innocuous until we again consider the implications in courtrooms and legal proceedings across the country, where judges and juries depend on witness testimony to decide the “facts” of cases and the fates of litigants. This is a multi-level problem. First, the witness’ own internal storyteller creates the narrative she will tell in court. As we know, her story may very well suffer from the same confabulation that colors all our stories. When she tells her story, the lawyers will combine it with their own more comprehensive stories based on fault, motivation, and cause-and-effect. Such stories are the stock and trade of legal professionals. They are “legal” stories. They come pre-packaged, like the plots of our favorite sitcoms and fairy tales, in containers of blame, responsibility and justice. These combined, patterned stories are then told and re-told among the jurors who must decide what happened, who did what to whom, and why. In this mix and mushrooming of stories, one may emerge – the one that will decide guilt or innocence, fault or exoneration. But even this story is only the beginning, as the public responds to the official legal story – the verdict – with their own re-tellings, often critical and revisionist in nature. The tale goes on, as it must. But the point remains the same for all those interested in the legitimacy of our legal system. We would do well to attend more closely in legal practice to our inner storyteller, the one that has taken up permanent residence in our minds. It makes us human, wonderfully creative and richly meaningful beings. But your storytelling mind serves one thing above all else – the story, not the truth, not the legal system, and in many cases perhaps not even justice.

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