The topic I’m addressing in this post relates to mastery in the legal field. Specifically, how reading quality writing, or “good prose”, can make you a both better writer and lawyer. Bryan Garner and Antonin Scalia make this point explicit by devoting to it an entire chapter in “Making Your Case: The Art of Persuading Judges.” The duo, notably, first make the point that lawyers are generally bad writers “because their profession condemns them to a diet of bad reading material”; that is, judicial opinions. While we are required to read these opinions in large number because they are authoritative, they are usually not well written. Forced to spend so much time with these less than well-written documents, we start to adopt the bad habits they embody—e.g., vexing legalese, needless jargon, unidentifiable Latin, and convoluted syntax. Over time, this steady “diet of bad reading material” contributes to the degradation of our own writing ability, so the authors recommend you focus on reading quality writing to counteract any decaying of your authorship.
Judge Frank Easterbrook exemplifies this point well: “The best way to become a good legal writer is to spend more time reading good prose. And legal prose ain’t that. . . . [W]hen you come back and start writing legal documents, see if you can write your document like a good article in The Atlantic, addressing a generalist audience.” Replicating the prose of these materials aimed towards a generalist audience will, presumably, help increase clarity—something woefully absent from many legal materials. Heed his advice in choosing your weekly digest.
But this is not to say that you should never read prose that isn’t for a generalist audience or that Garner and Scalia consider incapable of improving your own writing style—such as “pulp novels and tabloid newspapers.” Those can be enjoyable and entertaining and there is nothing wrong with reading them recreationally. But doing so will not transform your next motion into a model of clarity. You should devote most of your reading efforts to writing worthy of replication.
Reading Good Legal Prose Can Contribute to Writing Mastery
I find it empowering to know that that an hour or two at night of reading some terrific prose, while perhaps dense, can ultimately turn us into better lawyers. The idea that we can constantly develop our writing skill comports with what Eric Fromm, a 20th century psychologist, prescribed for attaining mastery in any art: “If one wants to become a master . . . . [o]ne’s own person [must] become[ ] an instrument in the practice of the art, and must be kept fit according to specific functions it has to fulfill.”
By reading good prose constantly and consistently, we turn ourselves into an instrument capable of improving writing practice. Moreover, we can simultaneously keep this instrument refined and sharp by expanding the scope of materials we read and stepping out of our literary comfort-zone; for example, you might try selecting reading material from a foreign genre or a bygone era.
Now, it’s worth mentioning that I do not believe the threshold for Garner and Scalia’s “good prose” requirement is too burdensome to meet. Most well known works of literature, philosophy, and books from reputable academics and journals likely suffice. The authors only seem to de-emphasize reading prose that is specifically designed to entertain and grab readers’ attention—again, “pulp novels and tabloid newspaper.” I personally find philosophy worthy of my time because many works are written by authors with a formal logic background. You can see the tight logical structure weaved together in these books, and while many are difficult to comprehend because of jargon the uninitiated may be unfamiliar with—e.g., Jean Paul Sartre’s being in itself vs. being for itself—they still exemplify high-quality prose. Philosophers are also well rounded students and showcase a wide breadth of knowledge in many different disciplines. And, at essence, they are individuals who have spent much of their lives thinking, reading, and writing—all requirements for writing good prose. I’m reminded of 19th century philosopher Fredrich Nietzche’s grandiose statement on his own prose:
I noticed how clumsily and un-discerningly two masters in the art of prose were confounded–one whose words drop hesitantly and coldly, as from the ceiling of a damp cave–he counts on their dull sound and resonance–and another who handles his language like a flexible rapier, feeling from his arm down to his toes the dangerous delight of the quivering, over-sharp blade that desires to bite, hiss, cut.
Nietzche, surely alluding to himself as the second master here, illuminates the type of writing you find buried in philosophy texts.
Legal Books Should Make Your List of “Good Prose” To Read
I also believe legal books written to impress a point as well as law review articles are useful in developing your writing style. Note, I am not referring to dry substantive legal sources like treatises and practice guides designed to educate on a practice area. Instead, these are published legal books written by academics (usually) that make theoretical arguments in a legal context. Two of my favorites are How Judges Think by Richard Posner and The Legal Analyst by Ward Farnsworth.
Here’s an illustration: let’s say you practice commercial litigation where the majority of your cases revolve around the Uniform Commercial Code (UCC) and the common law. Reading a book about the foundations of the Bill of Rights, such as Professor Akhil Reed Amar’s “The Bill of Rights: Creation and Construction,” where the author ultimately argues that the history suggests the Amendments should be construed more holistically than they have, might not seem to have direct application to your practice. Reading this book, nonetheless, may educate you on topics such as our legal system as a whole, our democratic government, and substantive legal rights upheld by our Constitution. While these benefits might not be immediately apparent in your practice, I think few would argue that the added perspective gained would make you a worse commercial litigator.
There is another dimension to reading legal books outside of your direct area of practice or interest. You might be able to identify an “interesting anomaly in unrelated disciplines that may have implications for your own,” Robert Green says in his book Mastery. While this suggestion on reading interdisciplinary materials was meant by Green to refer to reading texts entirely outside of law—e.g., books on physics, history, et cetera—I believe the prescription applies in equal force to the idea that we should read legal materials from outside of our practice area. By reading a legal book on the theoretical underpinnings on Natural Law, for example, you might find an interesting parallel to, let’s say, a cause of action derived from a statute that you frequently encounter in your general liability practice. This seemingly unrelated book might give you insightful perspective into how you argue and litigate that cause of action.
And of course, I also recommend following Green’s advice more expressly—reading journals and books from fields completely unrelated to law. I am currently reading a book that offers a theoretical account of the underpinnings of whistle-blowing, with supporting arguments from the fields of sociology and psychology, primarily. While this book implicates legal issues, it is unquestionably not a book concerning legal doctrine. But because I work in employment and labor law, where retaliation (an adverse legal action in response to whistle-blowing) is a commonly alleged cause of action, this non-legal book from the field of social science will help sculpt my understanding of retaliation. This could arm me with practical insight useful for arguing from a different perspective. Indeed, the author’s detailed explanation of the frequent paranoia many whistle-blowers share helped me identify a case theme I had not previously recognized.
While all the points I suggest here treat reading as a means to an end in your law practice—i.e., making you a better writer and lawyer—reading frequently has many other benefits that extend outside of the legal realm. Maryanne Wolf illustrates this well by saying that when reading you “leave your own consciousness, and pass into over into the consciousness of another person, another age, another culture.”
In essence, whether you read obsessively to “leave your own consciousness” or to become a better writer, I think you’ll be hard-pressed to find any negative impact on your life.