The Thinking Part
There's one part of every legal project that always stresses me out.
You'd think that I'd be used to it or would get over it or at least that I would come to expect it. But somehow it always seems to catch me by surprise. And every time seems like the first time.
It's not the working part or the writing part. That part is fine because I feel like I'm "doing" something--making a little progress toward the goal.
What's the part the always freaks me out?
It's the thinking part.
After the break, a homily from Justice Scalia and Bryan Garner about thinking twice and writing once.
When I'm just thinking or mulling over a problem or a legal issue, it doesn't look like I'm doing anything. It doesn't feel like I'm doing anything. And my time sheet sometimes looks like I'm not doing very much as well. Research is one thing. Staring blankly into space or thoughts while shaving are quite another.
And while all this staring into the void is happening, the deadline is ticking ever closer.
"DO SOMETHING!!"
That's what my subconscious self always yells at me. (My subconscious is a bit of a workaholic. And a nag.)
Still, I have learned a thing or two in the 17 years I've been doing this law thing. The temptation to write too soon is very strong, but it is destructive if you heed it. Here's how Bryan Garner and Justice Scalia put it:
Don't start writing until you've turned the case over in your mind for days--thinking about it while you're driving to work, discussing it with other lawyers in your firm, even talking it over with friends and family. New ideas may occur to you as you read the leading cases and scholarly authorities. And think not just about your affirmative case but also about the case you can expect from your adversary and the responses you have available.*
What's the risk of writing too soon? Scalia and Garner say you "freeze the deliberative process" and cut off avenues that you should have explored. You've dug yourself into a rut. In all likelihood, the rut is really deep because you started digging in earnest, in the wrong place, way before it was time, and could not bring yourself to stop.
So, all that time that I spend with a blank look on my face or rolling over and over in bed or staring at the wall in the shower? It may not look like it, but I am "doing something."
That's the thinking part.
That's work.
And without the thinking part, the good writing would never happen.
*Antonin Scalia & Bryan Garner, Making Your Case: The Art of Persuading Judges 69 (2008)
Welcome to the Appellate Record-- --the online community and virtual watering hole for appellate lawyers and anyone else who is comfortable with their inner law nerd.
This blog post expresses -- in a nutshell -- the toughest part of writing.
To think or not to think? That is the question.
The urge to put something on paper is great in light of law practice pressures. Driven by this urge I usually just jump in and start writing immediately after some preliminary research. The usual result: thinking or editing while I write. In other words, wasting a lot more time on editing than if I had resisted the urge to put something on paper.
Answer: Resist the urge! Be more efficient! THINK!!
Well said, Ruben. I need to be reminded as much or more than anyone.
And the second hardest part is to resist the temptation to pull the plug on the research too soon. It is easy to abandon an idea simply because the cases don't support you without digging deeper to see if a court, 15 years ago, pulled a quotation from a case out of context, which the court has used over and over without actually deciding to change the law. It is also easy to join in with the out of context line of cases without doing more analysis. Part of the thinking process includes really reading the cases rather than reading the headnote or just the division of the case you think helps you. Reaching the level of mastery with the substantive law is also difficult and often largely unbillable.