The Creative Process

"In writing, there is first a creating stage--a time you look for ideas, you explore, you cast around for what you want to say. Like the first phase of building, this creating stage is full of possibilities."

-Ralph Waldo Emerson

As an appellate attorney, I enjoy each stage of the writing process, but none more so than the creating stage, i.e., the time where the lawyer has finished digesting the record and starts formulating a theory of the case.  The large, yellow legal pads are removed from the desk drawer, and arguments are jotted down in no particular order.  Calls are made to colleagues and mentors to gain their perspective on the issues.  At some point - hopefully sooner rather than later - the argument crystallizes, and I can almost picture the paragraphs on the page.           

Inexperienced writers often skip this process altogether and start writing immediately after reading the record.  This is a recipe for a certain kind of writer's block.  Far from lacking arguments to raise, the lawyer has too many.  Overflowing with ideas, the lawyer drafts his argument without a cohesive, central narrative that ties those contentions together.  As a result, the lawyer neglects to inform the reader of the "who, why, what, where and when" and comes out of the gate swinging, making all sorts of arguments that seemingly have no relation to one another.  The finished product is a brief without a spine.  Stated differently, the lawyer's argument is mush, and the judges and law clerks cannot summarize the claim into a simple, declarative sentence. A lawyer who drafts this sort of disorganized brief should be prepared to face a very confused panel at oral argument.

Every appellate lawyer is naturally brimming with ideas after reviewing the record. At this point, you must apply the brakes.  Do just enough research to ascertain the general framework under which the court will decide the case.  Ask yourself the simple question: why does my client win?  Answer that question in a sentence or two.  Then write the opening paragraph, and outline the argument.  All those seemingly unrelated arguments will flow from your nutshell summary.

At oral argument, you will be glad you took this time when the panel, rather than expressing confusion over what you are trying to convey, is hammering your adversary with selected phrases from your brief.