Historian Barbara W. Tuchman on the ‘Art of Writing’ (Part II)
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University of Missouri School of Law Scholarship Repository Faculty Publications Faculty Scholarship Winter 2015 Historian Barbara W. Tuchman on the ‘Art of Writing’ (Part II) Douglas E. Abrams Follow this and additional works at: https://scholarship.law.missouri.edu/facpubs Part of the Law Commons 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 Copyright 2015 by The Missouri Bar 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 18 Precedent Winter 2015 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.