Every so often I post interviews with talented thinkers, authors and practitioners in which I ask them about their ideas of value to the legal profession. Today I am extremely pleased to bring you an interview of Dr. George Gopen. I have had the privilege of hiring Dr. Gopen to present several legal writing seminars in the past, and have been delighted to see attendees' enthusiasm and satisfaction. Because I know of no one else with a greater ability to teach lawyers, even those already good writers, to be better writers, I invited my old friend to answer some questions about this process he teaches so well.
idealawg: Thanks very much for being here at idealawg, George. I think the story of how you became a legal writing consultant would as interesting to many readers as it is to me so let's start there.
Gopen: I became a legal writing consultant by a series of accidents and instinctive career decisions. I was an English major as an undergraduate. Not knowing what to do with myself thereafter, I followed my father’s advice and went to law school – assuming, as he insisted, that my mental training there would stand me in good stead no matter what I wound up doing as a professional. I loved the first year, but was unimpressed by my summer clerkship and not thrilled by the second year’s courses, which did not teach me anything new about the thinking process.
Noticing that Harvard had, at the time, a joint J.D.-M.A. program, in which any law student could opt to do a Masters in any Harvard department, I opted to do one in English. (Both the English Department and the Law School were so outraged that I would abuse the program by indulging in such frivolous pursuits, Harvard cancelled the program the next year.) I discovered I really wanted to be an English professor and convinced the English Department (by no means an easy task) that I should be allowed to stay fro the Ph.D. I therefore did the two degrees simultaneously – 2 years law, 3 years both, and three years English. Somewhere in the fifth year, my mother began to tell people, “Most mothers pray their sons get into Harvard; me, I’m praying mine gets out.”
I was lucky enough to get a position in an English department, a feat accomplished by only 5 of the 47 who started the Ph.D. with me. I secured a 3-years-and-out job at the University of Utah. Accident #1: Upon my arrival, the new Director of Writing Programs, John Mueller, noticed my two degrees and asked me to create a course in “Advanced Composition for Pre-Law Students.” I could find no such course being taught anywhere in the United States. I wrote 86 law schools,
asking what writing programs they had – (the year was 1975) – and what their college offered on the undergraduate level. 80 wrote back, with various strains of frustration or despair over the writing skills of their students.
I invited the people who wrote the four best responses to Salt Lake City for four days to conference on what such an undergraduate course might encompass. From that. I structured a course, taught it twice, published an article on the course ("A Course in Composition for Pre-Law Students." Journal of Legal Education, 29 (1978), 222-231.); an article on what I had discovered about law school writing programs (then in their infancy) ("A Question of Cash and Credit: Writing Programs at Law Schools." Journal of Contemporary Law, 3 (1977), 191-200.); and secured a contract with West Publishing for a textbook (Writing from a Legal Perspective).
When I returned to the job market in 1977-78, I found (much to my surprise) that I had credentialized myself as a Composition specialist. (I was actually a Rhetorician, but did not discover that until 1984.) In a job market still disastrous, where one or two job interviews was considered something of a triumph, I led the country (I believe) with 15.
Although there was suddenly a pressing need for composition instruction on the college level, there was not yet a “field” of Composition Studies; and no one else in the country had two Harvard graduate degrees and publications in Composition. Despite my new-found reputation, I knew next to nothing about teaching the English language. Neither, however, did many other people – if anyone.
I accepted a position as Director of Writing Programs at Loyola University of Chicago. When I got there, my first jobs were to find out (1) what was generally known about teaching the writing of English, and (2) how to do something better than that.
Accident #2: I moved into a nice condominium in Rogers Park, recently converted from its 50-year-old status as an apartment building. Only one other unit had been sold, to Dan Weinberg, the owner of a rare book shop that specialized in Abraham Lincoln. Dan and I became good friends immediately, since I was a rare book collector and both of us had sung in madrigal groups. Two months later, at his family’s Thanksgiving dinner table, Dan grew tired of listening to his-cousin-the-lawyer complain how badly the young people in his firm handled the English language. To bring an end to that strain of conversation, Dan suggested his cousin contact me. “He’s got a law degree and a Ph.D. in English from Harvard, and he directs the Writing Program at Loyola. If anyone knows how to do something about it, it’s him.”
And so I was offered my first consulting job. They handed me the single worst writer in the firm – a lovely but unconfident young man – and told me to spend as much time as I needed, every other Saturday, to bring him up to speed as a writer. I had no idea what to do, other than the few things I had developed in the Utah writing course. I worked with this energetic young man for several months and actually helped him make some progress. I do not recall how I managed to accomplish this. I worked for the firm for a total of 18 months. When, with a few successes under my belt, I suggested they raise my pay from $60 an hour to $65, they fired me.
The year was then 1980. I had been discovering all sorts of things – small, disconnected things – about the language. I was making progress. Several people that year suggested to me that I should get together with Professor Joe Williams of the University of Chicago. They suggested (1) that he and I sounded like we would agree on many things concerning the language and (2) that my ego was strong enough to deal with his.
Joe and I both attended CCCC (the writing professors’ conference) that year, which gave me the opportunity to meet and talk with him. We took to each other immediately and decided to form a small consulting firm. Eventually, Clearlines arose, consisting of Joe, Gregory Colomb, Frank Kinahan, and me. Joel Henning and Associates took us on and found for us employment with some of the most prominent law firms and corporations, and we were on our way. Our programs were usually four full days; each client would see each of us once.
Accident #3: In 1987 we were hired by a client, the #2 legal publishing firm, that refused to accept a writing consultant who did not have a J.D. For the first (and only) time, Clearlines sent just one person, me, to do the whole job. And what a job it was: 300 lawyers, all performing not as lawyers but as editors, in groups of 25, once a week for a full day. I commuted to New York every Thursday from the beginning of September into July, doing all four sessions of our program over and over. This gave me an overview I had previously lacked. We had accomplished a great deal as a group; but my doing this job, I finally discovered what it was we had accomplished. (I will talk about that in a minute.)
idealawg: My next two questions are related so I will ask them both at the same time. What is the biggest challenge for lawyers as writers? And what is your biggest challenge in teaching lawyers to improve writing?
Gopen: These two questions are, for me, inextricably intertwined. If I had to boil down my response to only one ur-problem, it would be this: To get lawyers to forget the strategies they were taught in school for success in writing for teachers and get them instead to forge strategies that will produce success in the professional world.
We were taught “how to write” when we were children. That instruction was aimed at the intellectual level of the young minds that were its audience. It therefore concentrated on “rules” and “conventions.” It constantly gave students an unnatural task -- never encountered by a practicing lawyer -- that of filling a number of blank pages exclusively for the purpose of being judged on how well they could fill those blank pages. The audience was an artificial audience -- teacher.
Teacher was perceived as “The Big Red Pen in the Sky.” Teacher functioned as an intentionally unreasonable reader, who often indicated that she “knew what you were saying” but complained that “you didn’t say it well.” (If she knew what you were saying, surely a communicative act must have taken place; so why the complaints?)
If the student-writer filled all the required pages, on an appropriate topic, the job was “done.” If the student-writer did better this time than last time, the result was always positive. Worst of all, student did not have to understand the issues, but only had to record on the page some of the key words and facts and slogans associated with the issues; teacher, who already knew it all, could connect the dots.
This does not accord with real-life expectations. We would have a hard time imagining a judge saying to a lawyer, “Your brief is really inadequate; but you did so much better this time than last, you win the case.”
In the working world, when an expert efficaciously writes for an audience that has a need to know something, we call that rhetorical act “communication.” When students write for teachers, they are not engaged in “communication,” but rather in a lesser rhetorical act we could call “demonstration.” Students write to demonstrate to teacher that they have been to the library, read enough material, found items of importance, and as a result now know 4.7% or 5.2% of the 100% of the topic presumably known by teacher, the expert. Such a demonstration earns the sought-after good grade. However, when lawyers write, they -- and not their audience -- are the experts.
In the professional world, no one cares how hard the writer tried or how much progress has been made since the last effort. In the professional world, the important person, where prose is concerned, is not the writer, but rather the reader. The bottom line question where writing quality is concerned is simply this: Did the reader actually get delivery of that which the writer intended to send? If the answer is yes, the writing was adequate; if the answer is no, the writing was inadequate. And it does not matter in the process how powerful or dazzling or sexy the writing did or did not seem to be.
The biggest challenge in teaching legal writing, I believe, is getting lawyers out of the studential head of “completing the assignment” by putting it all down on paper, and getting lawyers instead to comprehend how their readers will go about understanding what it is that is attempting to be said and communicated.
idealawg: How is your approach to these challenges unique?
Gopen: First, I would have to say that “our” approach, not just “my approach,” is unique. Although I have functioned solo as a legal writing consultant since 1990, and have developed a great deal of my material by myself, all of my approach finds its origin in my collaboration with my good colleagues at Clearlines. I never speak for more than an hour without crediting them up front.
My approach is different because I do not try to help lawyers find ways – or even “better” ways – of filling pages; rather, I try to help them understand how their prose will be interpreted by most readers. Here is as brief a description of this reader-based approach, as I can muster. I call it the “Reader Expectation Approach.”
It should come as no surprise to us that readers have habitual patterns when they try to make sense of prose. It could not be otherwise. If all readers “did different things” every time they picked up a text, total chaos would result. With the collaboration of my friends, I have now identified most of these reading patterns and have developed a pedagogy for communicating them to practicing lawyers.
The important new news is this: Reading and writing are not, as most people assume, 85% word choice and 15% structure; rather, they are 15% word choice and 85% structure. In trying to make sense of an English sentence, readers need to answer five essential questions:
1. What is going on here?
2. Whose story is this?
3. How does this sentence connect backwards to the previous sentence?
4. How does this sentence lean forwards to the next sentence?
5. What is the most important piece of information in this sentence?
Remarkably, the interpretive clues to the answers to all five of these essential questions are sent to the reader not primarily through word choice, but rather through structural location. Where a particular word shows up in a sentence -- and not what that word is -- controls the way that word will be interpretively processed. That is why I can state the fundamental principle of this new approach in a single sentence: Readers of professional English prose have relatively fixed expectations of where in the structure of any unit of discourse to look for the arrival of certain kinds of substance.
We actually look in particular places in a sentence to find the answer to each of the five essential interpretive questions. For example, there is a place in the English sentence I refer to as “the Stress position,” where most readers of English naturally exert extra emphasis. Every end of an English sentence is expected by the reader to be a Stress position. If a writer places the most important piece of information elsewhere on a regular basis, a far smaller percentage of readers will agree on what is most important than if that information is habitually deposited in the Stress position. This, by the way, is the single most prevalent problem in American legal writing today.
By explaining these reader expectations concerning the relationship between structure and substance, I help professionals recognize consciously as writers what they have always know intuitively as readers: Certain kinds of pieces of information are expected to appear in certain kinds of structural locations. Thus, (e.g.), instead of a writer asking the unfocused question, “Does this sentence succeed in saying what I meant to say?”, that writer can ask far more pointed, objective questions like, “Does the word or phrase that I want the reader to emphasize most appear in a Stress position?” If the answer to that question is “No,” then the odds are high that a significant percentage of readers will not perceive with emphasis that which the writer wanted to present with emphasis.
We already know all these structural expectations -- intuitively -- in our role as readers; we need to become aware of them -- consciously -- in our role as writers. That’s what my approach attempts to do.
To get a relatively brief look at what these principles can do for even the foggiest of prose – how about the UCC, for example? – you can look at a 20-year-old article of mine:
"Let the Buyer in Ordinary Course of Business Beware: Suggestions for Revising the Language of the Uniform Commercial Code." University of Chicago Law Review 54 (1987), 1178-1214.
To see the principles working in a more sophisticated way, you can take a look at the slightly later and much better but not legally-centered article that has attracted much more attention than the above effort:
"The Science of Scientific Writing" co-authored with Bio-chemist Judith Swan.
If you get interested and want to see the whole shooting match, done in the greatest of detail, try the full-length, much more highly polished, book version:
Expectations: Teaching Writing from the Reader's Perspective.
And if you'd like to let your college-age young people to get to know all about it, try the textbook based upon its companion book above:
The Sense of Structure: Writing From a Reader's Perspective.
idealawg: I will end this interview with a very practical question: What one thing would you tell lawyers that would immediately improve their writing?
As I indicated above, I consider the poor use of the natural Stress position as the single most common and daunting problem in all of the professional use of English today. Of the last 185 M.D.s and Ph.D.s I have worked with individually at the CDC, only one person did not present a Stress position problem. I define the Stress position in a sentence as any moment of full syntactic closure – that is, any moment when the grammatical structure comes to a full halt. This happens not only at every period, but also at any properly used colon or semi-colon.
In a room filled with 100 lawyers, I would be willing to bet each and every person $1,000 that they do not take proper advantage of the Stress position. I would go further: I would bet them another $1,000 that misuse or non-use of the Stress position is the single most serious writing problem they have. I would win all or all but one or two of the former bets, and 90-something per cent of the latter. Repairing that one bad habit – a much more difficult task than it might sound at first – would make a substantial difference in any legal writer.
Almost all the advice we got from our writing teachers is wrong:
“Avoid the passive.” Wrong.
“To make it better, make it shorter.” Wrong.
“Write the way you speak.” Wrong.
“Vary the way you begin your sentences to keep your reader interested.” Wrong.
“Always begin your paragraph with a topic sentence that states the issue and point of the paragraph.” Wrong.
Even the advice in that delightful classic, Strunk & White’s Elements of Style, cannot help you write better. “Avoid needless words”? How do you know which are “needless”? Yes, it is comforting to know the distinctions between “affect” and “effect,” or “lay” and “lie”; but with those potential errors out of the way, we still would not know how to “write.” To know how to write, we need to understand, as completely as possible, how readers read.
idealawg: Very valuable information. Just learning about the Stress position alone can improve one's writing enormously. Again, thank you very much for giving your time and wisdom to idealawg, George. I have no doubt that many readers will be thinking about and implementing what you have said here today. (Contact Dr. Gopen.)