Law Office Management
Apr. 2, 2008
Substance of Style
The more you express yourself in terms of things that can be seen, touched, or heard, the more your writing will be engaging and memorable.
You may have heard that "style consists in force of assertion." You may even know that it was George Bernard Shaw-for my money the most stylistically assertive writer the English language has known-who said it. It may surprise you to learn that his subject at the time was Handel's oratorios. Then again, it may not.
"It was from Handel that I learned that style consists in force of assertion. If you can say a thing with one stroke, unanswerably you have style," Shaw stated in 1913. "Handel has this power. ... When he tells you that when the Israelites went out of Egypt, 'there was not one feeble person in all their tribes,' it is utterly useless for you to plead that there must have been at least one case of influenza. Handel will not have it: 'There was not one, not one feeble person in all their tribes,' and the orchestra repeats it in curt, smashing chords that leave you speechless."
Shaw's description is vivid and memorable, if highly subjective (not all conductors of Israel in Egypt make those chords curt and smashing), but it tells you more about Shaw's style than Handel's, and it's aimed more at consumers than producers. The writer who wants to learn from Handel should heed Beethoven (the only composer who ever out-Handeled Handel), who said, half a century after Handel's death: "Learn from him how to achieve great effects with such simple means."
Assertive writing is simple, concise, concrete, and active. The more you express yourself in terms of things that can be seen, touched, or heard, and the less it's encumbered by vague or noncorporeal stuff, the more your writing will be engaging and memorable. (Shaw's "case of influenza" brings immediacy to his description of Handel's Psalm setting, pitting the concept's large scale against a small detail, like showing a giant sequoia's improbable size in a photograph by putting a person in the foreground.)
This doesn't mean you need to write lots of monosyllabic metaphors. It does mean you shouldn't get lost in polysyllabic abstractions, which is our occupational hazard. Many lawyers get particularly mealy-mouthed when they have to tell a client not to do what the client wants to do, writing phrases like "you should, however, be advised that this course may not be in compliance with applicable statutes." In the late 1800s lawyer John G. Johnson made the point in unforgettable fashion when he telegraphed his robber-baron clients, "Merger possible. Jail certain."
That's the way it's usually reported, anyway; Johnson's 1917 New York Times obituary gave a more likely, "Merger possible. Conviction sure." I suppose the first version is stronger, because jail, a one-syllable word for a physical thing, is more concrete and simple than conviction, a three-syllable Latinate word for a proceeding. But they both have force and staying power, like the openings of the Hallelujah Chorus and Beethoven's Fifth (or, for that matter, Aqualung).
In "Politics and the English Language," George Orwell lampooned the tendency "away from concreteness" by taking the simple and concrete King James version of Ecclesiastes 9:11:
I returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.
and rewriting it as 20th-century drivel:
Objective considerations of contemporary phenomena compel the conclusion that success or failure in competitive activities exhibits no tendency to be commensurate with innate capacity, but that a considerable element of the unpredictable must invariably be taken into account.
The right expression crystallizes a point. In an unpublished opinion three years ago, the Ninth Circuit, in deciding that the plaintiff had established a prima facie case of malicious prosecution, held that the defendants lacked probable cause to file the underlying cross-complaint:
Lack of probable cause can also be inferred from the severity and sensational nature of [allegations] by Negrete and Clark when juxtaposed to their failure to provide any factual support or identify any illegal conduct. When called on to put up or shut up, they shut up-Negrete and Clark voluntarily dismissed their cross-complaint rather than respond to [discovery requests] for the proof of their allegations.
"Put up or shut up" is particularly forceful in an appellate opinion, where blunt language is unusual. In writing the brief in that case, I'd considered using it, but decided it was unnecessarily aggressive-an odd decision in hindsight, especially considering some of the unkind remarks I left in. I'm glad someone used it.
Style can consist in cute force of assertion as well as brute force of assertion. Heinz v. Havelock (757 F. Supp. 1076 (1991)) was a motion to remand in which the issue was whether a defendant had permanently moved from Orange County to North Carolina (which would have created diversity jurisdiction) when the suit was filed. In the remand motion, we pointed out the defendant's remaining ties to Orange County, stressing that she had just begun extensive dental work with an Orange County dentist. "Home is where the teeth are," I wrote. The twist on a proverb had a purpose other than just being cute: I wanted the dental work to stick in the judge's mind, which would likely happen if he paused to giggle over it. And I'd managed to sum up the key evidentiary point in six one-syllable words, including two concrete nouns.
Was it indeed memorable? The lead counsel, my employer at the time, certainly remembers it; he's brought it up a few times in our occasional chats in recent years. I can't tell you how it struck the judge (A. Wallace Tashima, now on the Ninth Circuit), but he did focus on the dental work, writing, "Plaintiff may be overemphasizing the importance of most of these remaining ties to California. ... Nonetheless, in light of the other circumstances, these ties do cast some doubt on Havelock-Heinz's purported change of domicile. For example, it is difficult to believe that she would begin extensive dental work with a particular dentist if she did not intend to have the work completed by that dentist" (757 F. Supp. at 1082). After thus making it plain which party he believed, he granted our motion, which is to say he threw us out of his court. Winning a remand motion can be a dubious victory. But at least we did it with style.
Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.
Alexandra Brown
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