Who Needs an Art Critic: Law and Art Criticism, Part III

Who Needs an Art Critic: Law and Art Criticism, Part III

II. How Legal Writing and Interpretations Can Breathe Life Into Art Criticism

So, how to be a better writer? In order to proceed, I will break this section into the formal and the substantive. In his book, Making Your Case: The Art of Persuading Judges, Justice Antonin Scalia, of the U.S. Supreme Court, educates litigators on how to successfully write for and argue in-front of judges. Although Justice Scalia writes in order to educate a litigator in the art of persuading judges, his book contains many fine points that will help any writer polish the written word as well as oral argumentation. Justice Scalia’s ten main points necessary for clear, direct, engaging and economical writing can be essentialized as such:

1. Focus on the Actual Writing
   1. Value clarity above all other elements of style.
   2. Elegance, erudition, sophistication of expression must be sacrificed if they detract from clarity.
   3. The same word should be used to refer to a particular key concept.
   4. Footnotes: nothing important to your argument should appear in a footnote.
   5. Make your points in a blunt, straightforward manner.
2. Use Paragraphs Intelligently; Signpost Your Arguments
   1. Paragraph breaks are means of mapping your argument.
   2. The first sentences of paragraphs (your fifth-grade teacher called them “topic sentences”) are important in guiding your readers through your brief—telling them what next thought is about to be discussed.
   3. Writing five-sentence paragraphs is bad advice. Don’t assume your readers  come to your text by reading only Classic Comics.
3. Use What It Takes
   1. Guiding words are essential in helping the reader follow the progression of thought.
   2. Normally, the very best guiding words are monosyllabic conjunctions: and, but, nor, or, so and yet. There’s a myth abroad that you should never begin a sentence with a conjunction. But look at any species of reputable writing—whether it’s a good newspaper, journal, novel or nonfiction work—and you’re likely to find several sentences per page beginning with one of those little connectives.
   3. This one is key! To clarify abstract concepts, give examples.
4. Make It Interesting
   1. To say that your writing must be clear and brief is not to say that it must be dull
   2. Three simple ways to add interest to your writing are to enliven your word choices, mix up your sentence structures and vary your sentence lengths
   3. Remember that an occasional arrestingly short sentence can deliver real punch (“This wolf comes as a wolf.”).
   4. Banish jargon, hackneyed expressions and needless Latin.
   5. Write normal English
   6. Give the reader credit for having a brain—and show that you have one, too. Don’t leave your common sense at the door. If your essay repeatedly refers to the SECRETARY OF TRANSPORTATION and mentions no other secretary, it is silly to specify it parenthetically. No one will think that your later references to “the secretary” denote the SECRETARY OF DEFENSE, or perhaps your own secretary.
5. Appreciate the Importance of Oral Argument, and Know Your Objectives
   1. In descending order of importance, your objectives in oral argument are these:
      1. To answer any questions and satisfy any doubts that have arisen in the readers’ minds.
      2. To answer new and telling points raised in a reply.
      3. To call to the readers’ minds and reinforce the substantive points made in your brief.
      4. To demonstrate to the court, by the substance and manner of your presentation, that you are trustworthy, open and forthright.
      5. To demonstrate to the court, by the substance and manner of your presentation, that you have thought long and hard about this case and are familiar with all its details.
      6. To demonstrate to the court, mostly by the manner of your presentation, that you are likable and not mean-spirited.
6. Have Your Opener Down Pat
   1. Your opening should usually consist of, or at least contain, a brief outline of the subjects you intend to address
   2. Put your strongest point first
7. Be Cautious About Humor
8. Never Postpone An Answer
   1. Otherwise, you invite the judge to conclude (as most will) that you have no effective response. Just answer the question.
9. Learn How to Handle a Difficult Reader or Respondent
   1. Whatever else you do when confronted by a hostile and unreasonable judge, don’t reply in kind. Don’t become hostile yourself; don’t display anger, annoyance or impatience. Keep telling yourself that you owe it to your client—because you do.10.  Beware Invited Concessions
10. Never make concessions that you’re pressed to make on horseback, at oral argument.
11. Don’t give away or abandon the fundamental premise of your case, otherwise you’re cooperating in your own destruction.

Continued tomorrow…

Tags: art criticism and law, Art Law, CAA chicago 2010, sergio munoz sarmiento