Academic Legal Writing - Eugene Volokh [57]
Even with my writing experience, I try to do about 10 complete edits before sending an article to the law reviews. When I clerked for Judge Kozinski, the norm was about 30 to 40 drafts for an opinion, which included 20 to 30 substantive edits (the others were primarily cite-checks). Balzac supposedly went through 27 drafts of one book—and without a word processor.13
This is painful and time-consuming, but necessary. Your first draft will be badly flawed, unless you're a great writer, in which case it will be merely mediocre. So will the second through the fifth. As you're editing, keep some old drafts, and compare the tenth draft against the first. You will notice a vast difference.
Words are the lawyer's most important tools. If you use the wrong word, or make a minor grammar, spelling, or punctuation error, you come across as a craftsman who doesn't know how to use his tools. You lose credibility, even if the substance of what you're saying is sound.
B. If You See No Red Marks on a Paragraph, Edit It Again
At least during the first few drafts, every paragraph—even every sentence—will likely need to be corrected, made clearer, and made more forceful. If you're not seeing at least one flaw in each paragraph, you're not looking hard enough.
C. If You Need to Reread Something to Understand It, Rewrite It
As you're reading your draft, watch for times when you find yourself rereading a sentence or a paragraph. If your writing confuses even you, won't your readers be still more confused? And a reader who finds it hard to understand your writing will often stop reading.
“But this is complicated material,” you might say. That may be right—but your job is to make the material as clear and as simple as possible. And a clear explanation should be readable in one pass: Remember, your readers aren't lazy, but they are busy.
D. Ask “Why?”
As you read any assertion you make, ask yourself what a skeptical reader—not a sympathetic one—would say. The changes you make to satisfy this reader will enrich your argument for all readers.
So for every sentence in your argument, ask “why?” Say that your sentence is “this result would be undemocratic”; ask yourself “why is this so?” Either the sentence itself or the sentences that precede it or follow it must answer that question (unless the answer is obvious). If you don't see the answer there, put it in.
E. Ask “Why Not?”
For the same sentence, ask “why not?”—“why might a reasonable person think the opposite?” Might there be several possible definitions of what is “democratic”? Might there be reasons to doubt the accuracy of the assumptions that lead you to your conclusion? If you can think of a plausible counterargument, make sure you address it.
F. Use Your Imaginary Friend (and Adversary)
Imagine someone whom you respect but who takes the opposite view from you—a friend, a professor, a judge—and try to read the piece as if you were that person. What counterarguments would he come up with? Would he be impressed by your logic, or would he see some flaws with it?
G. Use a Trusted Classmate (or Two)
Get a classmate to read the draft. The classmate must be (a) smart, (b) willing to read the piece carefully, and (c) willing to give criticism, even harsh criticism. Of course, those who like you enough to satisfy criterion (b) may be less likely to satisfy criterion (c); people who satisfy all three criteria are rare and valuable. Buy them dinner as compensation.
Warning: Check first to make sure that your professor doesn't have any objection to others reading your draft. Most professors won't, at least for your articles and probably even for your seminar papers; but it's always good to check.
H. Read the Draft with “New Eyes”*
Read the draft with “new eyes”: Try to imagine that you're a reader who doesn't know the subject, not the writer who knows it intimately.
If you have the time, put your latest draft away for a day or two before rereading it, so you can