Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

May, 2021

Thoughts on Legal Writing from Ernest Hemingway Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/395/ NEW YORK STATE BAR ASSOCIATION

MAY/JUNE 2021 Journal VOL. 93 | NO. 3 TRIUMPH OVER ADVERSITY SERVING OUR MEMBERS DURING THE PANDEMIC MARCH 2021

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4,516 53,793,052 Annual Meeting 2021 Total E-Mails Sent (Virtual) Attendees JournaNEW YORK STATE BAR ASSOCIATION l Contents MAY/JUNE 2021 VOL. 93 | NO. 3

8 A Vision for the Future by Scott M. Karson

In this issue: Departments: 13 Who’s a Parent? The Appellate Division 5 President’s Message Is Divided on the Answer 53 Hilary on the Hill by Joseph Williams by Hilary Jochmans 16 Fighting Misinformation: 56 Attorney Professionalism Forum How New Laws Might Help by Deborah A. Scalise, Tereza Shkurtaj by Gail Ehrlich and Vincent J. Syracuse 20 Amendments to Uniform Rules, Part 2 61 State Bar News in the Journal by David L. Ferstendig 65 Classifieds 26 Go to Bed: The Ethics of Exhausted Lawyering 67 by John Marsella Marketplace 69 2020–2021 Officers 30 New Normal of Remote Lawyering Has Ethical Implications 70 The Legal Writer by Carrie H. Cohen and Chan-young Yang by Gerald Lebovits

33 New York’s New Right of Publicity Law: Protecting Performers and Producers by Judith B. Bass

38 Trials in Fiction and Film: Can Reality Compete? by William B. Stock

42 How Divorce Law in New York State Favors the Spouse With the Financial Advantage by Neil E. Kozek and Hon. Mark C. Dillon

47 Beware the Undesirable Default Rule in International Arbitration Agreements by Robert K. Kry

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the New York State Bar Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. For submissions guidelines: www.nysba.org/JournalSubmission. Material accepted may be published or made available through print, film, electronically and/or other media. Copyright ©2021 by the New York State Bar Association. Single copies $30. Library subscription rate is $210 annually. Journal (ISSN 1529-3769) is published bimonthly (January/February, March/April, May/June, July/August, September/October, November/December) by the New York State Bar Association, One Elk Street, Albany, NY 12207. Periodicals postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes to: Journal, One Elk Street, Albany, NY 12207.

CONNECT WITH NYSBA VISIT NYSBA.ORG/BLOG Comment. Connect. Share. THE LEGAL WRITER Thoughts on Legal Writing From the Greatest of Them All: Ernest Hemingway By Gerald Lebovits

Gerald Lebovits ([email protected]), an acting Supreme Court justice in Manhattan, is an adjunct at Columbia, Fordham, and NYU law schools. For her research, he thanks Nia Goodman (Columbia Law School), his judicial fellow. The next issue of the Journal will contain Judge Lebovits’s final Legal Writer column. With that, he will have published his column in every edition of the Journal for the last 20 years.

New York State Bar Association 70 Journal, May/June 2021 GERALD LEBOVITS

rnest Miller Hemingway is one of the greatest writ- Eers the world has known. Born in 1899 in Oak Park, Illinois, Hemingway began his career at the age of 17 as a journalist for the Kansas City Star. After World War I began, he joined a volunteer American Red Cross ambulance unit in Italy, where he made many observations on which he’d rely for his future novels. After he was injured in the Second Battle of the Piave River,1 he returned to the United States to continue his work as a journalist for Canada’s Toronto Star. He covered international political events, such as the Greek Revolution. During this time, Hemingway realized that the truth of a story is often hidden beneath its surface.2 As a journalist, he concentrated primarily on the imme- diate events to create a “spotlight” focus around them.3 That focus required succinctness and concision due to space constraints in printed newspapers. After becoming comfortable with this style, Hemingway applied it to his works of fiction with great success. He found that the fewer the details, the more powerful the stories.4 The novels he wrote using this style have become classics of American literature. His first successful work, The Sun Also Rises, described his experiences as part of a group of American expatriates in Paris. His second book, A Farewell to Arms, depicted an American ambulance worker’s disappointment in World War I and his role as a deserter. He used his experiences as a reporter in Spain as the background for his novel For Whom the Bell Tolls. One of his later works, The Old Man and the Sea, told the story of a lonely fisherman’s journey.5 Hemingway’s protagonists often included tough, coura- geous characters who go against the grain and disagree with modern society. This archetype became known as “Hemingway Code Hero,” defined as “a man who lives correctly, following the ideals of honor, courage and endurance in a world that is sometimes chaotic, often stressful, and always painful.”6 Some believe that these protagonists were an extension of Hemingway himself, who may have used his novels to tell stories about a fic- tionalized version of himself. As a young writer, he discovered what would become his signature writing technique, the iceberg theory, which had a profound impact on 20th-century fiction writing.7 Also known as the theory of omission, the iceberg theory is a minimalistic style of writing in which the writer focuses on the surface elements of the story – the tip of the iceberg – without going into detail about the under- lying themes, the rest of the iceberg submerged in the ocean. Hemingway believed that readers should glean the meaning of a story implicitly, rather than explicitly stated by the writer. Musing about his own theory, Hemingway

New York State Bar Association 71 Journal, May/June 2021 THE LEGAL WRITER wrote that “[i]f a writer of prose knows enough about START AND FINISH WRITING IN “FLOW” what he is writing about, he may omit things he knows, According to psychologist Mihály Csíkszentmihályi, flow and the reader, if the writer is writing truly enough, is an optimal state of consciousness in which we feel and will have a feeling of those things as strongly as if the perform our best.14 Csíkszentmihályi describes the men- writer had stated them.”8 His approach to writing has tal state of flow as “being completely involved in an activ- been adopted by many legal writers, including Justice ity for its own sake. The ego falls away. Time flies. Every Anthony Kennedy, who has taken after Hemingway by action, movement, and thought follows inevitably from excluding adverbs from his legal writing.9 the previous one, like playing jazz. Your whole being is Throughout his writing career, spanning from the 1920s involved, and you’re using your skills to the utmost.”15 to the 1950s, Hemingway published seven novels, six While he never mentioned “flow” by name, Hemingway collections of short stories and two nonfiction books. For alluded to the concept in what he considered the most his work, Hemingway won the Pulitzer Prize for Fiction important thing he’d learned about writing: not to write too much at a time. He advised writers that the time to stop for the day is when things are going well and you know what’s coming next.16 The stopping point, he To ensure that a piece of described, occurs amid flow. He advised writers to stop writing is cohesive, Hemingway at this point every day to prevent getting stuck or expe- recommended rereading your riencing writer’s block.17 Hemingway wrote that he had “learned already never to empty the well of [his] writing, work from the beginning every but always to stop when there was still something there day before attempting to continue. in the deep part of the well.”18 Knowing when to stop is a valuable skill that can help prevent burnout as well as writer’s block. Working in in 1953 and the Nobel Prize in Literature in 1954. For flow promotes deep concentration, motivation, and over- his service as a World War I correspondent, he received a all satisfaction and gratification.19 Bronze Star in June 1947 at the U.S. embassy in Cuba.10 He committed suicide in 1961 at age 61. THINK ABOUT WRITING ONLY WHEN WRITING Hemingway’s works feature themes of love, war, travel, wilderness and loss, recurring themes in American litera- Having boundaries is a crucial part of life. But respecting ture.11 During his career, he gave advice to aspiring writ- boundaries is difficult. Writers often spend lots of time ers on how to improve their craft. Much of his advice was thinking about their works when they aren’t writing. about fiction writing, but it also applies to legal writing. Hemingway warned against this, urging writers not to think about their work in between writing sessions.20 He BEGIN WITH ONE TRUE SENTENCE believed that doing so would allow the subconscious to In his memoir A Moveable Feast, Hemingway discussed continue to work on the piece all the time. On the other his writing process and how he would start writing hand, he believed that if writers consciously think or worry about the piece, they’ll kill it, and their brain will something new. When he got stuck at the beginning of a 21 piece, he made sure not to worry, assuring himself instead be tired before even beginning to write. that he had written before and would write again. All he He expanded on this idea in A Moveable Feast, in which had to do was write one true sentence, the truest sentence he wrote about the need to read a different book after he he knew. He found this easy because there always was at had finished writing for the day. He found that without least one true thing he knew or had heard someone else reading to distract himself he’d lose the thing he was say. This trick helped him stay true to his declarative, writing before he could continue the next day. He also lean and simple writing style.12 spoke highly of using exercise, not only as a distraction, Legal writing is composed of many true sentences. It’s but to wear out the body and create fatigue. In referring difficult in any writing, legal or otherwise, to know where to the “well of his writing,” Hemingway preferred to let it be refilled at night from the springs that fed it: his or how to start. Hemingway asserted that beginning with 22 one true sentence allows a writer to “cut the scrollwork subconscious. or ornament out and throw it away,” shifting the focus of This tip will help prevent burnout in lawyers, while also the writing to the truth of the matter at hand.13 contributing to a healthy work-life balance.

New York State Bar Association 72 Journal, May/June 2021 GERALD LEBOVITS

REREAD AND REWRITE WHAT YOU’VE adjectives, and conclusions, and using positive language WRITTEN to make a point.30 Other writers at the time used flowery, descriptive language and complicated syntax. Hemingway To ensure that a piece of writing is cohesive, Hemingway did the opposite, and he was rewarded for it. He wrote to recommended rereading your work from the beginning 23 his editor in 1945 that “[i]t wasn’t by accident that the every day before attempting to continue. He noted the Gettysburg address was so short. The laws of prose writ- importance of editing while reading, instructing writers ing are as immutable as those of flight, of mathematics, to cut out everything they can. According to Hemingway, of physics.”31 His goal in writing was to write what he the best way to gauge the quality of your writing is by saw and felt in the best and simplest way.32 Hemingway what you can throw away. If what you’re able to remove is allowed his readers to think for themselves instead of tell- still important and compelling in its own right, then your 24 ing them in complex and fancy language what to make of writing is good. his writing, saying that “the first and most important thing Hemingway was a proponent of rewriting the work from of all, at least for writers today, is to strip language clean, the beginning each day, until the work became too long to lay it bare down to the bone.”33 to continue doing so.25 This helped him bring his ideas together and gave him another opportunity to edit as he 1. The Legal Writer’s paternal grandfather also fought in that battle, but for the Austro- wrote. He described the first draft of anything as terrible, Hungarian army. 2. Michael Reynolds, The Young Hemingway 17 (1998). explaining that he rewrote A Farewell to Arms over 50 3. Jeffrey Meyers, Hemingway: A Biography 98–99 (1985). 26 times before he felt it was complete. 4. Id. Hemingway advised writers not to get too discouraged 5. Horst Frenz, Ernest Hemingway Biography (1969), https://www.nobelprize.org/prizes/ during this process, which he described as mechanical literature/1954/hemingway/biographical. 6. Philip Young, Ernest Hemingway 36–37 (1952). work that can’t be avoided. He acknowledged the diffi- 7. Reynolds, supra note 2, at 17. culty of the writing process and even believed it’s the hard- 8. Ernest Hemingway, Death in the Afternoon 19 (1932). est work there is. He believed that writing takes courage 9. Ed Whelan, Justice Kennedy and Ernest Hemingway National Review, Oct. 9, 2014, and that the hardest part about it is finishing what you’ve https://www.nationalreview.com/bench-memos/justice-kennedy-and-ernest-hemingway- started.27 ed-whelan. 10. Frenz, supra note 5. PERSEVERE AND STAY POSITIVE 11. Frederic Svoboda, The Great Themes in Hemingway 155 (2000). 12. Ernest Hemingway, A Moveable Feast 12 (1964) (hereinafter Feast). Hemingway encouraged writers not to succumb to their 13. Id. own negative thoughts about their writing. He compared 14. Alayna Kennedy, Flow State: What It Is and How to Achieve It. HuffPost, Apr. 5, writing to war and writers to soldiers. It’s the writers’ 2017, https://www.huffpost.com/entry/flow-state-what-it-is-and_b_9607084. responsibility to see their work through. Once writers have 15. Id. 16. Ernest Hemingway, Monologue to the Maestro: A High Seas Letter, Esquire, Oct. 1, begun writing, Hemingway believed, it’s not only counter- 1935, at 21, https://classic.esquire.com/article/1935/10/1/monologue-to-the-maestro productive but also cowardly to worry whether they can (hereinafter Monologue). finish. He argued that the writer has no choice but to go 17. Id. on, making worrying a senseless act and a waste of time. 18. Hemingway, Feast, supra note 12, at 26. 19. Bryan Collins, 3 Surprising Benefits of Flow State, Forbes, Mar. 31, 2020, https:// Hemingway did recognize, however, that people don’t www.forbes.com/sites/bryancollinseurope/2020/03/31/3-surprising-benefits-of-flow- state/#798825d73627. always have control over their thoughts, positive or nega- 20. Hemingway, Monologue, supra note 16. tive. He advised writers to catch themselves if they think 21. Id. negatively and actively change or reframe that thought. 22. Hemingway, Feast, supra note 12, at 26. In doing so, writers will learn how to write and find their 23. Hemingway, Monologue, supra note 16. 28 own process. 24. Id. 25. Id. BE BRIEF 26. Id. The simplest piece of advice Hemingway gave to writ- 27. Arnold Samuelson, With Hemingway 180 (1981). ers may also be the most difficult one to implement. 28. Id. Hemingway, known for his succinct, direct, unadorned 29. Ernest Hemingway, On Writing 89 (1984) (hereinafter On Writing). 30. Joan Didion, Last Words, New Yorker, Oct. 26, 1998, https://www.newyorker.com/ prose, encouraged other writers to emulate his style. In magazine/1998/11/09/last-words-6. his story fragment On Writing, Hemingway described 31. Hemingway, On Writing, supra note 29, at 87. disliking writers who, in his words, “never learned how to 32. Id. say no to a typewriter”29 Hemingway often opted for one- 33. U.S. Air Force, Air Force Writing 9 (1966). syllable words and short sentences, leaving out adverbs, Reprinted with permission from: New York State Bar Association Journal, May/June 2021, Vol. 93, No. 3, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

New York State Bar Association 73 Journal, May/June 2021