You've probably noticed that I haven't posted anything in a few days. Once again, I've been extremely busy handling my partner's health problems. I spent the better part of the last two days in the hospital. I didn't sleep much during that time and when I got up this morning I was too exhausted to think, let alone generate a decent post. Aside from that, I was out of town this weekend and have been occupied with lots of new things; and don't worry: They are good for me!
Still, all these events have denied me my writing time. That bothers me on many levels. It makes me feel better just to let you all know what's going on with me, since I'm accustomed to a certain weekly output. On the other hand, I realize that life does not always offer the best circumstances in which to create. And if I have to go into "writing dormancy" more than usual in the coming weeks, I will have to face it. I apologize in advance if I don't crank out my hoped-for three or four posts every week.
I always get so many ideas during my breaks. When I just live and observe, I amass new thoughts, experiences and impressions. I know those ideas will all buoy me when I settle down into another long writing phase. I've actually jotted down three big ideas for longer pieces in the future. Although I do not have the time or space to discuss them all here, I will say that they involve these issues: Truth; confessions; power; capital punishment; free will; death; sexuality; categorization; identity; desire; subjectivity; happiness; prejudice and reflection. I have conceived both fictional and nonfictional structures in which to explore these themes. But my piece on sexuality will be part reflective, part anecdotal and part polemical. Think of it as a sequel to Foucault's work on sexuality, with a personal twist to make it accessible.
To share some detail from my own personal experience lately, I have been entertaining serious doubts about my own sexuality. And my doubts move in an unconventional direction. Namely, for almost 14 years I have been quick to characterize myself as "gay." But in fact I'm not so sure what that means anymore. By the same token, I cannot say what "straight" means, either. In truth, the only reliable conclusion I've made in this inquiry is that sexual identity is never clear-cut. That is because it reflects basic desire. Basic desire, in turn, is purely subjective. It is impossible to categorize desire because there is no limit to individuals' deepest subjective tastes.
I don't think people appreciate just how fluid sexual identity is. That is what I will address in my piece. In the process, I will discuss the unfortunate human tendency to associate absolute meaning with artificial categories. I plan to show that categories like "gay" and "straight" are not talismanic. Rather, I will show that they are at best "rough guidelines" that exist in various proportions in us all at different times in our lives.
I also plan to discuss why I think the term "gay" is absurd. When it comes to categorizing groups, sexual "orientation" is a dubious--and barely unifying--characteristic. That is not to say that people who identify themselves as "gay" do not merit certain assistance or solicitude under law. My main argument will be that "gay" is not a good identifier, nor is it absolute. There are plenty of people in the world--including me--who find men attractive, yet have no difficulty whatever finding women attractive, too. The bottom line is that one desire never excludes another. And "gay" is a category that essentially implicates a particular sexual desire.
So that's what's on my mind these days. Forgive me for the sparser posting. I promise there is plenty more to come. I have a whole list to get to!
Take care. And thanks as always for reading my archives.
Oesterhoudt
Showing posts with label Legal Writing. Show all posts
Showing posts with label Legal Writing. Show all posts
Wednesday, May 12, 2010
Saturday, April 3, 2010
DON'T SAY "NEXUS;" SAY "CONNECTION" : WHY I DON'T LIKE PRETENTIOUS LANGUAGE
AN ESSAY
During my first year in law school, I had to take a "legal writing course." It was pure misery. The "professor" was really no professor at all, but rather a disgruntled low-level staffer from the Attorney General's office who worked part-time scolding terrified first-semester students for putting one space before a period rather than two. She never praised anyone. And she consciously tried to drain all individuality from everyone's writing. She said: "This is legal writing. It's time to un-learn everything you've ever learned about writing. Right now."
In her defense, legal writing is certainly different from expository writing. It follows distinct conventions and customs that differ from the classic liberal arts essay. It proceeds along identifiable logical pathways and channels arguments to lead ineffably to a conclusion. It is not subtle. Legal writing does not hide anything from the reader. It tells him exactly what he is reading and repeats it about fifty times before it is over. In our legal writing class, we learned how to manufacture these technical baubles. And we got lots of bad grades along the way to remind us that we missed some essential detail or other.
I became a pretty decent legal writer. After all, it isn't difficult. It's just a skill, like baking. There is no artistry to it. You just take a position, organize some arguments to support it and start declaring why you're right. You avoid the passive voice, follow a set sentence structure and repeat your argument over and over again. You make all your sentences declarative and begin each closing line in a paragraph with "thus." Clarity is important. Subtlety is not. And why should it be? After all, if you're writing to a court to win a case, you don't want to leave your fate to interpretation, do you? Hell no. You want to scream why you're right; and you'll be damned if you hesitate in your demand for victory.
But there is irony in all this. Legal writing--like the law in general--leads lawyers to believe that they possess magical powers. After all, lawyers feel exulted because they know that they can influence the machinery of the State to deprive others of property, liberty and even their lives. They influence that machinery through advocacy, including writing. For that reason, lawyers believe that their "legal writing" opens the doorway to power over others.
Yet there is nothing magical about the law or legal writing. In fact, I came to understand that legal writing actually wields very little influence, despite the mythology to the contrary. When I practiced law, my superiors praised my writing. I thought it led courts to make better decisions in particular cases. But time after time, I saw that judges probably had not even read what I had written. Rather, they knew beforehand how they would rule in a case and carried that prejudice with them through the proceeding. No matter how grand my rhetoric or airtight my logic, my writing would never dislodge an entrenched conviction. Just because I nailed all the technical criteria required for "good legal writing" did not mean I would magically win the case.
All this sobered me about the "power of the law." I learned that there was a vast propaganda machine at work perpetuating the idea that "judges were impartial" and that "good arguments always persuade." The cruel fact is that judges and lawyers are just as shortsighted and prejudiced as the next man. They make decisions based upon their cultural intuition, social values and emotional reactions. They can skillfully cite the law to provide a seemingly "neutral" justifications for their decisions. But in the end, "good legal writing"--and even "good arguments"--will almost never change minds.
Nor should it. Legal writing is agonizingly formulaic. I even wonder how judges can even keep their eyes open when they read it. And who really needs to know what one side in a case says? You can pretty much figure out what each side wants in the case simply by looking at the facts. If a person gets injured, he's going to say the other guy is at fault and should pay him money. The other guy will say he's not at fault and shouldn't have to pay. Or maybe he'll say the injured guy caused his own injury, so he's excused. Our legal system is adversarial. That means that you can figure out exactly what each side wants beforehand: Team A wants to make money; Team B wants to save money. Each accuses the other of bad faith and shouts to the court why he should win.
It's not complicated. It's just a game: One team wants to beat the other. You don't need masterful writing to understand how most cases go. Our adversary system explains it all. And chances are a judge will form an intuitive opinion about the dispute long before he reads what either team has to say about it. So nothing either team says will change the result.
Yet lawyers love their writing, even if it does not ultimately influence anyone. Worse, they scold lower-level employees who do not use the right words in court papers. This may seem meaningless--after all, why insist on particular words if the writing does not affect the outcome in the end?--but it happens. It is as if lawyers understand that their writing will change no one's mind, yet they adhere to rigorous standards merely to show that they can. This is sheer pretentiousness, and I don't like it. Moreover, it is pretentiousness without reason; for even when lawyers use all the right formats, phrases and page headings, their writing will not influence the judge. He has already taken an intuitive notion about the case.
Take this example: In legal writing class, we learned that you must always recite a legal rule exactly as it appears in a case. Over the centuries, pretentious judges have written pretentiously (and sometimes very poorly) about the law. When they lay down a legal rule in a particular case, they enshrine bad writing for generations to come. But in legal writing class, you must cite the rule exactly as it appeared. I recall an example about some lawyer being disciplined for neglecting his client. Once upon a time, a court said there had to be a "nexus" between the lawyer's conduct and resulting harm in order to determine whether an attorney should be disciplined for client neglect.
What the hell is a "nexus?" In law school, I remember thinking: "What a pretentious, unnecessary word. You can just use the word 'relationship,' or even 'connection' to express the same idea without sounding like a complete SAT-word-dropping douchebag.'" So in my brief, I cited the rule without using "nexus." I changed it to "connection." I thought it sounded more accessible. It sounded less arcane. I did not want to sound like a spell-casting sorcerer when I wrote. I wanted my reader to understand immediately what the law said.
But I got a bad grade on that paper because I did not literally use the word "nexus" in reciting the legal rule. It did not matter that my formulation expressed the rule better than the judge's legalese. No, details are important in legal writing, even really bad details that do nothing to improve communication or style.
Still, at the time I had not yet recognized that the law cared nothing for style. I had always prided myself on making my writing as clear and as accessible as possible. It was difficult for me to comprehend that clarity and style did not matter in this new discipline. I resented the formality and structure in legal writing. Ultimately, I learned to do it with the best of them. But it was just imitation. I never believed that legal writing possessed any intrinsic merit over my traditional, expository style.
Recently, I have begun to see legal writing in a larger context. Now, its rigidity and pretentiousness make sense: They reflect the law's effort to construct a fanciful aura of authority and inaccessibility.
Courts and judges--as well as the governments that institute them--benefit from a population that fears the law. People fear things they do not understand. They cower before institutions that speak in a hard-to-understand way. It makes them obedient and respectful. That is why courts want words like "nexus" instead of "connection." If they used words like "connection," people might understand what they were saying. If that happened, more people might see through the law's charades and disrespect it. They might not even need lawyers to translate all the legal rubbish.
In this light, pretentiousness in legal writing makes some sense. It is a smoke-and-mirror routine. It is Wizard of Oz stuff. It looks impressive. But in the end it's all nonsense. Men behind velvet curtains are still men, even if they use befuddling synonyms for common words.
And the ultimate irony is that even the best legal writing will not impress the men behind the velvet curtain. They already know what they plan to do each day. Lawyers can talk and write until they are blue in the face. It won't change anything.
During my first year in law school, I had to take a "legal writing course." It was pure misery. The "professor" was really no professor at all, but rather a disgruntled low-level staffer from the Attorney General's office who worked part-time scolding terrified first-semester students for putting one space before a period rather than two. She never praised anyone. And she consciously tried to drain all individuality from everyone's writing. She said: "This is legal writing. It's time to un-learn everything you've ever learned about writing. Right now."
In her defense, legal writing is certainly different from expository writing. It follows distinct conventions and customs that differ from the classic liberal arts essay. It proceeds along identifiable logical pathways and channels arguments to lead ineffably to a conclusion. It is not subtle. Legal writing does not hide anything from the reader. It tells him exactly what he is reading and repeats it about fifty times before it is over. In our legal writing class, we learned how to manufacture these technical baubles. And we got lots of bad grades along the way to remind us that we missed some essential detail or other.
I became a pretty decent legal writer. After all, it isn't difficult. It's just a skill, like baking. There is no artistry to it. You just take a position, organize some arguments to support it and start declaring why you're right. You avoid the passive voice, follow a set sentence structure and repeat your argument over and over again. You make all your sentences declarative and begin each closing line in a paragraph with "thus." Clarity is important. Subtlety is not. And why should it be? After all, if you're writing to a court to win a case, you don't want to leave your fate to interpretation, do you? Hell no. You want to scream why you're right; and you'll be damned if you hesitate in your demand for victory.
But there is irony in all this. Legal writing--like the law in general--leads lawyers to believe that they possess magical powers. After all, lawyers feel exulted because they know that they can influence the machinery of the State to deprive others of property, liberty and even their lives. They influence that machinery through advocacy, including writing. For that reason, lawyers believe that their "legal writing" opens the doorway to power over others.
Yet there is nothing magical about the law or legal writing. In fact, I came to understand that legal writing actually wields very little influence, despite the mythology to the contrary. When I practiced law, my superiors praised my writing. I thought it led courts to make better decisions in particular cases. But time after time, I saw that judges probably had not even read what I had written. Rather, they knew beforehand how they would rule in a case and carried that prejudice with them through the proceeding. No matter how grand my rhetoric or airtight my logic, my writing would never dislodge an entrenched conviction. Just because I nailed all the technical criteria required for "good legal writing" did not mean I would magically win the case.
All this sobered me about the "power of the law." I learned that there was a vast propaganda machine at work perpetuating the idea that "judges were impartial" and that "good arguments always persuade." The cruel fact is that judges and lawyers are just as shortsighted and prejudiced as the next man. They make decisions based upon their cultural intuition, social values and emotional reactions. They can skillfully cite the law to provide a seemingly "neutral" justifications for their decisions. But in the end, "good legal writing"--and even "good arguments"--will almost never change minds.
Nor should it. Legal writing is agonizingly formulaic. I even wonder how judges can even keep their eyes open when they read it. And who really needs to know what one side in a case says? You can pretty much figure out what each side wants in the case simply by looking at the facts. If a person gets injured, he's going to say the other guy is at fault and should pay him money. The other guy will say he's not at fault and shouldn't have to pay. Or maybe he'll say the injured guy caused his own injury, so he's excused. Our legal system is adversarial. That means that you can figure out exactly what each side wants beforehand: Team A wants to make money; Team B wants to save money. Each accuses the other of bad faith and shouts to the court why he should win.
It's not complicated. It's just a game: One team wants to beat the other. You don't need masterful writing to understand how most cases go. Our adversary system explains it all. And chances are a judge will form an intuitive opinion about the dispute long before he reads what either team has to say about it. So nothing either team says will change the result.
Yet lawyers love their writing, even if it does not ultimately influence anyone. Worse, they scold lower-level employees who do not use the right words in court papers. This may seem meaningless--after all, why insist on particular words if the writing does not affect the outcome in the end?--but it happens. It is as if lawyers understand that their writing will change no one's mind, yet they adhere to rigorous standards merely to show that they can. This is sheer pretentiousness, and I don't like it. Moreover, it is pretentiousness without reason; for even when lawyers use all the right formats, phrases and page headings, their writing will not influence the judge. He has already taken an intuitive notion about the case.
Take this example: In legal writing class, we learned that you must always recite a legal rule exactly as it appears in a case. Over the centuries, pretentious judges have written pretentiously (and sometimes very poorly) about the law. When they lay down a legal rule in a particular case, they enshrine bad writing for generations to come. But in legal writing class, you must cite the rule exactly as it appeared. I recall an example about some lawyer being disciplined for neglecting his client. Once upon a time, a court said there had to be a "nexus" between the lawyer's conduct and resulting harm in order to determine whether an attorney should be disciplined for client neglect.
What the hell is a "nexus?" In law school, I remember thinking: "What a pretentious, unnecessary word. You can just use the word 'relationship,' or even 'connection' to express the same idea without sounding like a complete SAT-word-dropping douchebag.'" So in my brief, I cited the rule without using "nexus." I changed it to "connection." I thought it sounded more accessible. It sounded less arcane. I did not want to sound like a spell-casting sorcerer when I wrote. I wanted my reader to understand immediately what the law said.
But I got a bad grade on that paper because I did not literally use the word "nexus" in reciting the legal rule. It did not matter that my formulation expressed the rule better than the judge's legalese. No, details are important in legal writing, even really bad details that do nothing to improve communication or style.
Still, at the time I had not yet recognized that the law cared nothing for style. I had always prided myself on making my writing as clear and as accessible as possible. It was difficult for me to comprehend that clarity and style did not matter in this new discipline. I resented the formality and structure in legal writing. Ultimately, I learned to do it with the best of them. But it was just imitation. I never believed that legal writing possessed any intrinsic merit over my traditional, expository style.
Recently, I have begun to see legal writing in a larger context. Now, its rigidity and pretentiousness make sense: They reflect the law's effort to construct a fanciful aura of authority and inaccessibility.
Courts and judges--as well as the governments that institute them--benefit from a population that fears the law. People fear things they do not understand. They cower before institutions that speak in a hard-to-understand way. It makes them obedient and respectful. That is why courts want words like "nexus" instead of "connection." If they used words like "connection," people might understand what they were saying. If that happened, more people might see through the law's charades and disrespect it. They might not even need lawyers to translate all the legal rubbish.
In this light, pretentiousness in legal writing makes some sense. It is a smoke-and-mirror routine. It is Wizard of Oz stuff. It looks impressive. But in the end it's all nonsense. Men behind velvet curtains are still men, even if they use befuddling synonyms for common words.
And the ultimate irony is that even the best legal writing will not impress the men behind the velvet curtain. They already know what they plan to do each day. Lawyers can talk and write until they are blue in the face. It won't change anything.
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