Historian Barbara W. Tuchman on the ‘Art of Writing’ (Part II)

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Legal Studies Research Paper Series Research Paper No. 2015-05

Historian Barbara W. Tuchman on the “Art of Writing” (Part II)

Douglas E. Abrams

Published in the Winter 2015 issue of Precedent, the quarterly magazine of the Missouri Bar: http://www.mobar.org/uploadedFiles/Home/Publications/Precedent/2015/Winter/abrams. pdf

This paper can be downloaded without charge from the Social Sciences Research Network Electronic Paper Collection at: http://ssrn.com/abstract=2581159

Electronic copy available at: http://ssrn.com/abstract=2581159 WRITING IT RIGHT Historian Barbara W. Tuchman on the “Art of Writing” (Part II)

By Douglas E. Abrams ing. Good historical writing is good of binding and persuasive judicial writing about history, and good legal decisions, statutes, administrative writing is good writing about law. rules and decisions, court rules, and In the Fall issue of Precedent, Part I Part I of this article presented Tuch- such unofficial sources as treatises, of this article described historian Bar- man’s observations about a writer’s restatements, and law review articles. bara W. Tuchman’s profound influence personal and professional commitment In legal matters worth writing about on President John F. Kennedy during to quality. This final part discusses her and disputes worth taking to formal the Cuban Missile Crisis in 1962. A observations (italicized below) about resolution, these sources may point few months earlier, the President had research and written expression. The in different directions without initial read The Guns of August, Tuchman’s discussion concludes with lessons that harmony. newly published account of how writers, including lawyers, can draw Lawyers, too, must “know when to European powers stumbled into World from the ongoing controversy among stop,” but different missions call for War I in 1914. With American and professional historians about the rela- different conclusions about when that Soviet nuclear stockpiles poised, Ken- tive merits of popular and academic time comes. Court deadlines and other nedy resolved not to commit blunders writing. filing demands directly or indirectly that would “allow anyone to write a constrain lawyers who, for the cli- comparable book . . . , The Missiles of RESEARCH AND EXPRESSION ent’s sake, must “see their work in October.”1 1. “The most important thing about print.” The lawyer exercising profes- What if the President found The research is to know when to stop. . . . sional judgment must sense when to Guns of August unimpressive and put One must stop before one has finished; turn primary attention from efficient, it aside after a few pages, without otherwise, one will never stop and thorough research of fact and law to studying the miscalculations that led never finish. . . . I . . . feel compelled to the process of writing. At some point, Europe to “sleepwalk” into total war follow every lead and learn everything the lawyer determines that the salient nearly 50 years earlier?2 At a time about a subject, but fortunately I have arguments or advice can be delivered when historiography influenced world even more overwhelming compulsion thoroughly and effectively, and that events, Tuchman’s best seller deliv- to see my work in print.”3 further research might diminish op- ered a powerful message because it Tuchman was right that “[r]esearch is portunity for translating research into also delivered powerful writing that endlessly seductive.”4 Legal research, effective writing. kept legions of readers (including the however, serves a mission different Quality legal research does not President of the United States) turning from the mission served by research necessarily showcase the lawyer’s the pages. that provides historians with raw mate- ability to plumb every nook and Throughout her career, Tuchman rial for engaging narratives. Lawyers’ cranny. Legal writing usually fulfills studied not only history, but also the writing sometimes tells a story, but its mission best when readers remem- art of writing itself. Historians’ writing usually only for a greater purpose. ber the message, though not neces- can yield helpful, though not necessar- This greater purpose is to establish sarily the messenger. “People,” said ily perfect, analogies for lawyers’ writ- or maintain someone’s status, rights Tuchman, “are always saying to me in ing. Imperfect analogies nonetheless and obligations under the law. This awed tones, ‘Think of all the research remain readily adaptable by lawyers “someone” is usually the client or the you must have done!’ as if this were because there are only two types of public agency that engages the lawyer. the hard part. It is not; writing, being writing – good writing and bad writ- Legal research may involve a maze a creative process, is much harder and

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Electronic copy available at: http://ssrn.com/abstract=2581159 WRITING IT RIGHT takes twice as long.”5 do not quite say it. duction, danger and caution; achieving 2. “The writer . . . must do the Readers normally do not throw the greatest possible precision the first preliminary work for the reader, as- lawyers such lifelines. Legal writers time remains any legal writer’s goal. semble the information, make sense typically face a “hostile audience” that 4. “[S]hort words are always of it, select the essential, discard the “will do its best to find the weaknesses preferable to long ones; the fewer syl- irrelevant . . . . What it requires is sim- in the prose, even perhaps to find ways lables the better, and monosyllables, ply the courage and self-confidence to of turning the words against their beautiful and pure . . ., are the best of make choices and, above all, to leave intended meaning.”9 Judges and law all.”14 things out.” 6 clerks dissect briefs to test arguments, Lawyers can take heed from Tuch- In addition to time constraints but only after opponents have tried to man and other leading writers here. imposed by court deadlines and make the arguments mean something Novelists Ernest Hemingway and Wil- other professional commitments, the writers did not intend. Advocates liam Faulkner, for example, went back lawyers commonly encounter space strain to distinguish language that and forth about the virtues of simplic- constraints. The latter may be direct complicates an appeal or creates a ity in writing. Faulkner once criticized (imposed by page and font restrictions troublesome precedent. Parties seeking Hemingway, who he said “had no in court rules, for example), or indirect to evade contractual obligations seek courage, never been known to use a (imposed by the likely attention spans loopholes left by a paragraph, a clause, word that might send the reader to the of busy readers). Taken together, con- or even a single word.10 dictionary.” “Poor Faulkner,” Heming- straints of time and space illuminate France’s greatest short-story writer, way responded, “Does he really think the cardinal rule of writing: The writer Guy de Maupassant, was no lawyer, big emotions come from big words? should finish before the readers do. but his advice can help guide lawyers He thinks I don’t know the ten-dollar “Structure is chiefly a problem of who seek precision in their writing. words. I know them all right. But there selection,” said Tuchman, “an agoniz- “Whatever you want to say,” he assert- are older and simpler and better words, ing business because there is always ed, “there is only one word to express and those are the ones I use.”15 more material than one can use.”7 it, only one verb to give it movement, Humorist Will Rogers wrote more Lawyers without the courage, wisdom only one adjective to qualify it. You than 4,000 nationally syndicated news- and self-confidence to “make choices” must search for that word, that verb, paper columns, and his wisdom about can easily clutter the final product with that adjective, and never be content language resembled Hemingway’s.16 string citations, distracting footnotes, with an approximation, never resort “[T]here is always a short word for it,” extraneous commentary, or similar to tricks, even clever ones, and never Rogers said. “‘I love words but I don’t underbrush that disorients readers have recourse to verbal sleight-of- like strange ones. You don’t under- without illuminating the status, rights hand to avoid a difficulty.”11 stand them, and they don’t understand and obligations that underlie the writ- Maupassant’s directive sets the bar you. Old words is like old friends ing itself. high, however, perhaps too high be- – you know ‘em the minute you see 3. Words are seductive and cause some imprecision is inescapable ‘em.”17 dangerous material, to be used with in language. Justice Felix Frankfurter, In a letter to a 12-year-old boy, caution. . . . “[C]areless use of words a prolific writer as a Harvard law Mark Twain praised his young cor- can leave a false impression one had professor before joining the Supreme respondent for “us[ing] plain, simple not intended.”8 Court, was right that “[a]nything that language, short words, and brief Lawyers know what Tuchman was is written may present a problem of sentences. That is the way to write talking about. When a person reads meaning” because words “seldom English – it is the modern way and the personal messages or newspaper col- attain[] more than approximate preci- best way. Stick to it; don’t let fluff and umns by writers friendly to our point sion.”12 flowers and verbosity creep in.”18 of view, the reader sometimes recasts Imprecise tools though words may “One of the really bad things you inartful words or sentences to help sometimes be, they remain tools none- can do to your writing,” says novel- cure imprecision. “I know what they theless because “[t]he law is a profes- ist Stephen King, “is to dress up the really meant to say,” the reader thinks sion of words.”13 Tuchman stated a vocabulary, looking for long words silently, even if the words on the page universal truism when she flagged se- because you’re maybe a little bit

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Electronic copy available at: http://ssrn.com/abstract=2581159 WRITING IT RIGHT ashamed of your short ones.”19 “Use on the Cuban Missile Crisis and her would want to read.”32 (Corollary: the smallest word that does the job,” insightful observations about the art of No harm’s done to a lawyer’s brief, advised essayist and journalist E. B. writing. Her place among contempo- memorandum, or other writing by White.20 “Broadly speaking, the short rary historians, explored below, offers making it something someone would words are the best, and the old words final perspectives about the qualities want to read.) when short are best of all,” attested that mark effective writing. The Nation cited Barbara Tuch- former British Prime Minister Winston According to historian Robert K. man’s “refusal to be cowed by aca- Churchill, who also knew a thing or Massie, Tuchman was “stung when re- demic historians.”33 Her status as a two about writing.21 viewers, especially academic review- “popular historian” placed her in such 5. “[I]t is a pleasure to achieve, if ers, sniffed that her work was ‘popular luminous company as Bruce Catton, one can, a clear running prose . . . . history,’ implying that because it sold David Halberstam, William Manches- This does not just happen. It requires a great many copies, it failed to meet ter, and McCullough himself. skill, hard work. . . . It is laborious, their own exacting standards.”28 The Like Tuchman, this foursome slow, often painful, sometimes agony. implication was that “popular histori- boasts no tenured academic titles It means rearrangement, revision, add- ans” somehow produce work of lesser and no PhDs in history or anything ing, cutting, rewriting.”22 quality, designed to appeal to a mass else. Like Tuchman, their journalism From years of experience at the readership rather than to peer review- backgrounds taught them how to craft bench and bar, Justice Louis D. ers who control the access of “academ- compelling narratives that would hold Brandeis instructed readers’ attention. They lawyers that “there is no “Legal writing usually fulfills its mission best when aimed for popular audi- such thing as good writ- reader remember the message, though not ences, and they usually ing. There is only good hit the target with works rewriting.”23 Literary necessarily the messenger.” whose insights continue giants often make writing to shape the national look easy, but they have said the same ic historians” to professional journals. heritage without collecting dust on thing about what needs to happen be- “Critics and scholars have always been anonymous library shelves. hind the scenes before their work ever suspicious of popular success,” says The central point for lawyers is that reaches a reader. novelist Stephen King.29 connecting with the intended audience, “I’m not a very good writer, but I’m Many academic historians remain indeed with the widest audience pos- an excellent rewriter,” reported James content with readerships numbering in sible under the circumstances, signals A. Michener, who could not “recall the dozens rather than the thousands, success for any writer. Achieving a anything of mine that’s ever been but consigning so-called popular bond with readers is no easy chore, printed in less than three drafts.”24 To historians to inferior status misses the whether the readers are the legions be a writer,” attested Pulitzer Prize mark. Historian Stanley Weintraub ex- who pave the way to the best-seller winner John Hersey, “is to throw away plains that “I want to be read. I don’t lists, or the handful of litigants, coun- a great deal, not to be satisfied, to type want to be read only by scholars who sel and judges targeted by the typical again, and then again and once more, number maybe 30 to 300, and that’s brief, or memorandum, or other legal and over and over.”25 Hemingway it.”30 Pulitzer Prize-winning historian paper that helps determine a client’s believed that “easy writing makes hard (and former Librarian of Congress) status, rights and obligations. A job reading,”26 and he made no secret that Daniel Boorstin complains that “histo- well done is a job well done. he rewrote the last page of A Farewell rians tend to write for other historians. Some historians with sterling aca- to Arms 39 times before he signed off I want to write for the human race.”31 demic credentials can appeal to both on the novel.27 Two-time Pulitzer Prize winner popular and academic audiences, but David McCullough, perhaps the dean former National Endowment for the “I WANT TO WRITE FOR THE of American historians today and Humanities chairman Bruce Cole finds HUMAN RACE” certainly one of the most widely read, the gulf widening between the two So far, this two-part article has ex- gets it right: “No harm’s done to his- camps.34 Australian popular historian plored Barbara W. Tuchman’s impact tory by making it something someone Paul Ham (whose 600-page history of

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World War I’s outbreak recently won 9 George D. Gopen, Writing From a Legal 25 Donald Murray, The Craft of Revision lavish praise from the Daily Telegraph Perspective 1 (1981). (1991) (quoting Hersey). 10 Jay Wishingrad & Douglas E. Abrams, 26 Carlos Baker, Hemingway, the Writer as “magnificent” and “comprehen- Book Review, 1981 Duke L.J. 1061,1063 (re- as Artist 71 (4th ed. 1972) (quoting Heming- 35 sive”) draws this distinction useful to viewing Gopen, id.). way). lawyers: “Great popular histories are 11 Guy de Maupassant, Selected Short Sto- 27 George Plimpton, Writers At Work 124 written in a rich narrative style, with a ries 10-11 (Roger Colet ed., 1971) (Maupassant (1963); Ernest Hemingway, The Art of Fiction, strong authorial voice and an intimate quoting French writer Gustave Flaubert). The Paris Review Interview (1956). 12 Felix Frankfurter, Some Reflections On 28 Robert K. Massie, Foreword, in Tuch- sense of character and place. . . . They the Reading of Statutes, 47 Colum. L. Rev. man, supra note 3, at xii. synthesize a vast amount of research 527, 528 (1947), reprinting Felix Frankfurter, 29 Stephen King, On Writing: A Memoir of into a coherent narrative” that holds Sixth Annual Benjamin N. Cardozo Lecture, 2 the Craft 143 (2000). the readers’ attention and ensures Rec. Bar Ass’n City of N.Y. (No. 6, 1947). 30 Brian Lamb, Stanley Weintraub, in 13 David Mellinkoff, The Language of the Booknotes: America’s Finest Writers on longevity.36 Law vii (1963). Reading, Writing, and the Power of Ideas 117 “Academic historians,” Ham con- 14 Tuchman, supra note 3, at 16-17. (1997). tinues, “tend to stick to their university 15 A.E. Hotchner, Papa Hemingway 69-70 31 Brian Lamb, Daniel Boorstin, in departments, producing articles and (1966) (quoting Hemingway). Booknotes: America’s Finest Writers on essays that are almost universally 16 Mark Schlachtenhaufen, Centennial Reading, Writing, and the Power of Ideas 114 Snapshot: Will Rogers’ Grandson Carries On (1997). unread” because “‘[t]he deadening Tradition of Family Service, Okla. Publishing 32 David McCullough, The Course of Hu- verbosity and sprawling sentences of Today, May 31, 2007. man Events (Nat’l Endowment for the Humani- the worst examples of academic writ- 17 Betty Rogers, Will Rogers 294 (1941; ties, Jefferson Lecture 2003). ing render them incomprehensible to new ed. 1979) (quoting Rogers). 33 Barbara Tuchman, The Nation, Mar. 6, 18 Robert Hartwell Fiske, The Dictionary 1989 (obituary). the mortal reader.”37 of Concise Writing: 10,000 Alternatives to 34 Bruce Cole, A Heroine of Popular His- Writing communicates only when Wordy Phrases 11 (2002) (quoting Twain). tory, Wall St. J., Mar. 10, 2012 (reviewing someone reads it. Writing without 19 Stephen King, On Writing: A Memoir of Barbara W. Tuchman, The Guns of August readers is not writing, and writers the Craft 110 (2000). (1962) and Barbara W. Tuchman, The Proud without readers are not writers. 20 Max Messmer, It’s Best to be Straightfor- Tower (1966)). ward On Your Cover Letter, Resume, Pitts- 35 Troy Lennon & Christopher Dawson, By burgh Post-Gazette, Nov. 29, 2009, at H1 the Book, Daily Telegraph (Australia), Dec. 5, ENDNOTES (quoting White). 2013, at 70 (reviewing Paul Ham, 1914: The 1 Robert F. Kennedy, Thirteen Days: 21 Susan Wagner, Making Your Appeals Year the World Ended (2013)). A Memoir of the Cuban Missile Crisis 127 More Appealing: Appellate Judges Talk About 36 Paul Ham, Human Factors, The Age (1969); see also, e.g., Arthur M. Schlesinger, Appellate Practice, 59 Ala. Law. 321, 325 (Melbourne, Australia), Mar. 22, 2014, at 30. Jr., A Thousand Days: John F. Kennedy in the (1998) (quoting Churchill). 37 Id. White House 692-93 (1965); Meredith Hind- 22 Tuchman, supra note 3, at 48, 21. ley, The Dramatist: Barbara Tuchman Saw 23 Eugene C. Gerhart, Quote It II: A Dic- History as a Grand Tragedy, 33 Humanities tionary of Memorable Legal Quotations 462 (Sept./Oct. 2012). (1988) (quoting Justice Brandeis). 2 Christopher Clark, The Sleepwalkers: 24 Camille Lamar Campbell, How to Use a Douglas E. Abrams, a law How Europe Went to War in 1914 (2013). Tube Top and a Dress Code to Demystify the 3 Barbara W. Tuchman, Practicing His- Predictive Writing Process and Build a Frame- professor at the University tory: Selected Essays 20, 21 (1981). work of Hope During the First Weeks of Class, of Missouri, has written or 4 Id. at 21. 48 Duq. L. Rev. 273, 310 (2010) (quoting co-authored five books. 5 Id. at 69. Michener); Bill Knott, The Craft of Fiction Four U.S. Supreme Court 6 Id. at 17, 62. 159 (1977) (same); Kathryn Ann Lindskoog, decisions have cited his 7 Id. at 49. Creative Writing for People Who Can’t Not law review articles. 8 Id. at 38, 39. Write 62 (1989) (same).

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