Legal writers can benefit from a Zen writing approach and some Hemingway—and so can their readers
Judge David D. Weinzweig wrote Zen and the Art of Persuasive Writing because he is a self-described “suffering reader.”
The vice chief judge of Division One of the Arizona Court of Appeals has co-authored legal treatises on antitrust law and consumer protection, and he does a lot of reading. He teaches writing and practiced law for 20 years. Now he wants to reacquaint the writer with the reader by using mindfulness and science to improve legal writing. For instance, he bemoans seeing one paragraph run on for three pages. A Zen approach would be to air out paragraphs and sentences to aid comprehension, Weinzweig says.
“I think Japanese call it ‘Ma.’ It’s this notion of less is more because it features what matters. If something is presented in a mass of letters and words, it gets lost in that ink.”
The judge discussed other aspects of his book, released last year, with the ABA Journal.
There are nine mantras in the book. Chapter 1, “Beware of the Audience” deals with cognitive load, or the burden placed on a brain when you read. Is there a style of writing that is more likely to ease cognitive load?
I would love for lawyers to write like journalists. To account for word choice and not pick difficult words, whether it’s Latin or jargon. Some Latin, sure, is required. Journalists are a great example because they have to be understood. Someone is not going to pay for their product unless they can process and understand the point. I say to my clerks: Read the Atlantic. Read the Washington Post. Read these and reverse engineer that approach to make the law concrete so that it resonates with the reader. It’s not just ideas, which are sort of floating in the air. It’s things you can touch, feel, smell, hear. And the very best writers do that. I think all writers can do that. That is what the book is about; to introduce legal writers to their readers.
Do judges want to see legalese in legal writing?
That’s a myth. I have yet to meet that judge, although there are some judges who appreciate jargon. And jargon, I guess it’s necessary if it’s required for precision. But all too often, it’s included because it was the first thought—all unformed and fuzzy. And the writer never revisits it to say, “Hmm. How can I best land this point?”
In the book, you credit Chief Justice John Roberts and the late U.S. Supreme Court Justice Ruth Bader Ginsburg for being concise writers. What does concise writing entail?
Judge David D. Weinzberg (Photo courtesy of Judge David D. Weinzweig)There are two concisions that matter to me. One is just almost a writing style. I look to Ernest Hemingway, and I say, “Wow!” He had this predatory instinct for unnecessary words and unnecessary sentences, and it works exceptionally well. In legal writing, because it clears the path for the reader to sort of digest, to understand the point, rather than be focused on the words. As a writer, you never want the reader to be focused on the writing. You want them to be focused on the point. And the way you get there is by presenting in plain language the fewest possible words to that point. That’s sort of a style concision. The other type of concision is more difficult, I think, and that is to master the record—both the law and the facts of every case, so that they can distinguish the meaningful from the meaningless.
You say few rules are absolute. What would you consider an absolute rule that legal writers should adhere to?
I joke around when I speak in public that you have to capitalize the first letter in a sentence, and a period is required to stop that thought. To me, those are absolute rules. The reason I say there are not absolute rules is I want writers to be thinking not so much pedantically about rules that are rules because they are in a book and they were taught, but to think about their readers. And you know what the great news is? They are readers too. All these lawyers who can write better; they know what they like. And it’s almost like they forget when doing legal writing how it feels to be a reader. I say the only rule in my mind is to account for the preferences and expectations of the reader.
What’s a bad writing habit lawyers have?
Lawyers have a bad habit of providing everything—just sort of unloading their brain. But a concise argument focuses on what matters. The issues and the law and the facts, without unnecessary background, are just so much more compelling. If I get a brief with 11 issues, and it’s 100 pages long, and nine of those issues are dead on arrival, what I would encourage lawyers to do is focus on those two issues and make them pop because your chances of success shoot up. I can tell you from my own experience, I often find the concise briefs to be the most compelling. Now, not every case lends itself to that; [such as] complicated constitutional, antitrust cases. But even there, I think you can make those much easier for the reader.
In Chapter 3, “Be Clear and Concrete,” you give nods to Ernest Hemingway and George Orwell. Do you feel lawyers can benefit from reading their work?
I do. Again, I encourage my clerks to read them and other novelists to see how you can write with vivid verbs and concrete nouns and avoid nominalizations. Avoid adverbs, right? These writers, they don’t tell you what’s happening; they paint a picture for you. And so from the perspective of a writing style, I think Hemingway and [George] Orwell are fantastic. Not so much with [James] Joyce or [William] Faulkner—that is almost too similar to what I see with legal writing. And I just think there is a place for that. I hate saying “simplicity” because I’m not saying we should dumb things down. I’m saying to present hard ideas in easy words and packages—so word choice, analogies.
You note that some writers feel the need to use fancy words. For instance, a writer may use “exhibit” instead of “show” or “render” instead of “make.” Why?
I think there could be a lot of reasons. You go into this legal space, and it’s acceptable. It’s almost like flashing a membership badge. And we are taught it in law school, and you see it. Everything you cover, if it is at least substantive, is sort of immersed in abstraction.
Who did you write this book for?
I love words. I love language. I love how you can pick the right words and place them in the right order—and it makes all the difference in the world. I wish lawyers had that sort of same appreciation for how powerful language is. My point is, it’s not that I dislike fancy words. There is a time and a place for them. But if your goal is to be understood and to move hearts and minds, that has to take center stage. So the word that is most likely to land with the audience is the word I believe should be selected.
Can you recall a case where a writer struggled with legal writing?
I had one clerk … She came to me as a very accomplished writer. She had won awards. For the first two or three months of the clerkship, she struggled mightily because she was placed in new and different environments with different expectations—at least in her mind. And so it’s hard, even for a journalist, to make that leap to law and legal writing. Because the brain thinks, “I want to belong.” Or, I think a lot of legal writers, unfortunately, don’t reread their prose. And much of what I preach happens in the reread. I’m not saying you sit down and you are writing Pulitzer Prize-worthy prose on the first effort. That just doesn’t happen. That’s not how the brain works. It’s art. You have a blob of clay. Is there a better word? Is there a verb there that could really make that pop? There is a nominalization there. How can I extract that verb?
What things do you feel are frowned upon in legal writing?
So many people won’t put pictures in motions. But why? Growing up in this profession, I would press the boundaries. I would put in a picture of an intersection where an accident occurred rather than explaining it. Or even now as a judge when I have a real estate dispute. There’s sort of been an unwritten rule in law that it’s frowned upon, whether it’s not lawyerly or judicial. In other parts of the book, you have these rules that have taken shape over time, whether you never split an infinitive or end a sentence with an infinitive or end a sentence with a preposition. I researched that, and they are mindless. In that instance, you have two rules. I would ask you to back away from those rules and say, “What is the reader most likely to grasp?” Don’t be so focused on rules. Be focused on being understood.
Explain “mindful paragraphs,” which you write about in the book, and whether those are challenging for legal writers to master.
With a mindful paragraph, I think it’s all about a topic sentence that allows the reader to sort of navigate into the paragraph. And then to provide or release bits of information in the order that is both necessary and the most persuasive for the reader to understand. That’s a very abstract concept.
Editor’s note: This conversation was edited for length and clarity.
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