It is common for lawyers to dabble in creative writing. Some writers may also dabble in the law, but there is greater risk in that arrangement. While different beasts, there is overlap in the elements of strong creative and legal writing—this article analyzes these similarities and differences.
1. Embrace shorter sentences. “What’s recommended? An average sentence length of 20 words,” according to Bryan Garner’s LawProse Lesson #269: Average sentence length.
As a general rule, if a sentence is more than three lines long, it probably can be divided into shorter sentences. Awareness of sentence length will allow a writer to avoid onslaughts of long-winded sentences, which can be exhausting to a reader. Consider the following passage from the Supreme Court’s holding in Obergefell v. Hodges:
“It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
The average sentence length is about 14 words and the longest sentence is 21 words. By using short, direct sentences, the court draws attention to each conclusion, creating a powerful rhythm.
2. Default to active tense. “The habitual use of the active voice . . . makes for forcible writing. This is true . . . in writing of any kind,” as in William Strunk Jr.’s The Elements of Style.
“Active” voice means the subject of the sentence is the one acting. An example of the distinction between active and passive is writing “the court ruled on the motion” as opposed to “the motion was ruled on by the court.” The former is a stronger, shorter, and more direct sentence, similar to the above sentences from Obergefell.
3. Limit adverbs. “I believe the road to hell is paved with adverbs,” Stephen King writes in “On Writing: A Memoir of the Craft.”
Adverbs are not inherently evil, but overuse of adverbs is a hallmark of weak writing. By definition, adverbs modify words, which often means another, stronger word can be used in the place of the adverb and modified word. For instance, “she quickly ran” can be replaced with “she sprinted” to create a more commanding sentence.
Further, adverbs are sometimes meaningless in the legal context, such as when Lt. Cdr. JoAnne Galloway “strenuously” objected in the seminal classic, “A Few Good Men.” The strength of an attorney’s belief in an argument is irrelevant to the strength of the court’s belief in the argument. In other words, use adverbs sparingly, especially when emphasizing a point.
4. Know the audience. “As you write, think about your audience. Remember that you are writing to someone, rather than at them,” according to BYU Writing Center, Creative Writing.
Writing fiction for a middle-grade audience is different than writing for adults. Similarly, an attorney must modify his or her writing depending on the reader. A busy trial court will not have time for complicated arguments, whereas an appellate court will be focused on details, and an attorney must accordingly adapt.
1. Paragraph and section structure. “Legal writing professors have been using such organizational paradigms like CREAC for at least the past 20 years because they reflect deductive reasoning: reasoning that goes from general (the rule) to specific (application of the rule to the facts).” Diane B. Kraft, CREAC in the Real World.
The CREAC—Conclusion, Rule, Explanation of Rule, Analysis, and Conclusion—method when structuring brief sections is effective because a lawyer’s job is to persuade, and CREAC keeps the focus on persuasion. Conversely, a fiction writer’s job is to entertain, so chapters will have varying and multiple purposes such as character development, advancing the plan, and building the fictional world.
2. Purpose of analogies, metaphors, and similes. “For a writer, metaphor is an art of attention-seeking, of asking you to perceive something afresh,” as in David Morley’s “The Cambridge Introduction to Creative Writing.”
In legal writing, analogies draw comparisons between cases and highlight the relevance of favorable rulings. In creative writing, analogies, simile, and metaphors heighten mood. Consider the following sentence from “Lolita” by Vladimir Nabokov: “Elderly American ladies leaning on their canes listed toward me like towers of Pisa.” From a legal perspective, there are too many differences between ladies and towers for this comparison to have precedential value; from a literary perspective, however, this simile paints a vivid picture.
3. Literary license. “It is an old observation that the best writers sometimes disregard the rules of rhetoric. When they do so, however, the reader will usually find in the sentence some compensating merit, attained at the cost of the violation. Unless he is certain of doing as well, he will probably do best to follow the rules,” according to “The Elements of Style.”
Creative writers will occasionally vary from standard practice for the sake of impactful writing. For example, Cormac McCarthy does not use quotation marks. Drastic departures from the rules, however, should be left to the masters, and there no place in legal writing to vary from standard practice as the reader–a judge or clerk–will likely not find such an approach compelling.