Introduction
In a conversation about poetry, US Supreme Court Justice Elena Kagan says that she doesn’t read it much.
Besides being purposefully opaque, she muses, it’s as though, ‘the author is trying too hard to make you not understand something. And you have to work too hard to figure it out.’ Poetry, Justice Kagan goes on to say, is a kind of fancy-schmancy elevated language, which, ‘thinks too well of itself.’
Are these musings accurate? Could this not be said about legal writing?
It seems to me that the comment is better directed at bad writing generally, rather than poetry, or legal writing, specifically.
I cannot imagine life without Frost’s rural imagination, or Oliver’s gentle wisdom, or Whitman’s grand spirit. And there are many more besides. Perhaps Mongane Wally Serote for his searing consciousness, or Ingrid Jonker’s heart-breaking realism.
For me, many of the beloved poets were the opposite of opaque and fancy-schmancy; they were accurate, skillful and perceptive. Often, they wrestled with ambiguity and contradictions to produce insights that were breathtaking in their simplicity, or painted rich portrayals of the most common daily task, like mending a farm wall.
Does the legal writer not undertake the same exercise when interpreting badly drafted laws or contracts, or distinguishing between the ratio of a decision from its obiter dicta, or resurrecting, refining and repackaging a dissent to formulate the foundation of a new legal trajectory?
I think so.
Here are 3 things poetry can teach us about good legal writing.
- Choose words carefully
Both the young lawyer and the young poet must during the course of his or her novitiate, master the same tools: diction (word choice), syntax (word order), sound, metre, imagery – to name a few. The poet will take these seriously, while the young lawyer probably will not.
This is a mistake.
Both the legal writer and the poet share the responsibility to be a witness, a recorder of experience, which is part of the broader responsibility we all have ‘for keeping the universe ordered through our consciousness.’[1]
While the legal writer may use the sentence rather than the line, both forms are used to communicate ideas. We use words to do this, nothing else (well, maybe white space).
When choosing your words, remember that ‘go’ is not ‘stop’ is not ‘hurry up’.[2] Metrically, phonetically they are different. Don’t be tone deaf. Pay attention. Choose carefully. Understand your working material. Care about the order of your words, the choice of tense, and the sounds they create.
- Write good sentences
Okay, so we are not aiming to imitate Shakespeare’s sonnets. We don’t try and write each sentence in iambic (light stress followed by heavy stress) pentameter (five foot lines): ‘upon those boughs which shake against the cold’.[3] But becoming more familiar with the process of dividing a line into its metrical feet and each foot into its individual parts increases the odds of being better attuned to rhythm and voice.
And rhythm and voice is alles.
‘When you write, you lay out a line of words. The line of words is a miner’s pick, a woodcarver’s gouge, a surgeon’s probe. You wield it, and it digs a path you follow. Soon you find yourself deep in new territory.’[4]
Good sentences, like good lines in poetry, have a flow, and they allow a writer’s voice to come through. This is the skill of coordination. Like the poet, you will want to omit needless words. You will want to be precise. You will want to mix the length of your lines. Use parallel phrases for parallel ideas, provide signposts along the way, and make bridges between paragraphs.
- Tell the truth but tell it slant
This line, as you might have guessed, comes from Emily Dickinson in her poem (1263):-
‘Tell all the truth but tell it slant —
Success in Circuit lies
Too bright for our infirm Delight
The Truth’s superb surprise
As Lightning to the Children eased
With explanation kind
The Truth must dazzle gradually
Or every man be blind —’
Dickinson’s ‘slant’ and ‘gradually’ are, ‘ways of getting past preconceptions, prejudices, defences, stereotypes, and fact-dominated literalism’.[5]
I sometimes use a metaphor to do this, subject to Orwell’s famous warning[6] (as long as they are not so long dead so as to be alive). Depending on the context, metaphors or other allegorical tools, can be helpful in conveying complex ideas, or seizing the heart of a thing.
Justice Scalia wrote this in his dissent in Lee v. Weisman (1992):-
‘I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to “requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.” But interior decorating is a rock hard science compared to psychology practiced by amateurs.’
The sentence is itself, a rock thrown at the majority. Guts, style and punch.
Conclusion
In this process of choosing words, and crafting sentences, as instruments of truth telling – when words metamorphose into timeless parcels of light refracting through the pages of law with profundity and grace – it’s the grandmasters who remind us that legal writing can be poetry, even if for the briefest moment:-
‘Officials, whose activities are, for the time being, practically unhampered, are vested with authority to an extent which is searching in character. The conduct of the ordinary man, under ordinary circumstances, is largely determined by convention. The atmosphere of his environment, the public opinion of the community, are restraining factors which operate automatically. But when these restraints are removed, when the officer is a law unto himself, when publicity is darkened and criticism is silent, it is only a strong man who can preserve an equal mind and a balanced judgment. And the administrators of the system are not universally the strongest men.’[7]
And that’s a trick worth practising, even if it takes a lifetime to perfect.
[1] Mihaly Csikszentmihalyi as quoted on https://www.brainpickings.org/2015/01/28/mark-strand-creativity/
[2] See Mary Oliver, A Poetry Handbook (1994) p. 19.
[3] William Shakespeare, Sonnet LXXIII.
[4] Dillard, The Writing Life (1989) p. 3.
[5] E Peterson, Tell it Slant (2012) p. 4.
[6] George Orwell Politics and the English Language (1946).
[7] B A Tindal (ed) James Rose Innes: Autobiography (1949) p. 195-6.
