Writing It Right: How writing can sharpen personal decision making
Vol. 77, No. 4 / July - August 2021
Douglas E. Abrams
Douglas E. Abrams, a University of Missouri law professor, has written or co-written six books, which have appeared in a total of 22 editions. Four U.S. Supreme Court decisions have cited his law review articles. His writings have been downloaded worldwide more than 36,000 times. This article is adapted from the Postscript of his latest book, EFFECTIVE LEGAL WRITING: A GUIDE FOR STUDENTS AND PRACTITIONERS (West Academic 2d ed. 2021). Copyright 2021 by West Academic. Reprinted by permission.
The 2004 National Football League Draft was fast approaching, and the last-place San Diego Chargers held the first selection overall. Their expected choice, University of Mississippi quarterback Eli Manning, was no stranger to the NFL’s affairs because his father, former New Orleans Saints quarterback Archie Manning, and his older brother, Indianapolis Colts quarterback Peyton Manning, had preceded him to stardom.
Eli Manning told the Chargers that he would not sign if the team selected him, and he intimated that he would instead re-enter the 2005 draft, expecting selection by another team. Sitting out the 2004-2005 season would mean losing a year’s multimillion-dollar income in his athletic prime, but media reports indicated that the young quarterback believed he could get a more favorable long-term contract from a team in a major media market.
The Chargers selected Eli Manning first. To avoid a stalemate that would have left the team with nothing to show for its envied first-round position, the Chargers immediately traded him to the New York Giants. The rest is history. Just ask any Giants fan about the team’s Super Bowl victories in 2008 and 2012 with their star quarterback at the helm.
“Writing Is Refined Thinking”2
How did the future two-time Super Bowl Most Valuable Player reach his high-stakes decision to spurn the San Diego Chargers and contemplate a season on the sidelines? “Eli did what I have always suggested in making big decisions,” his father said. “I’m a legal pad guy. He took out a legal pad, drew a line down the middle, and put the pluses on one side and the minuses on the other side. It wasn’t even close, so he went with it.”3
U.S. Presidents Richard Nixon, Jimmy Carter, and George H.W. Bush were also “legal pad guys” who often marshalled their thoughts when wrestling with major decisions by listing the pluses and minuses — the pros and cons — in two columns.4 Other leaders reportedly reliant on such written lists include former U.S. Secretary of State and First Lady Hillary Rodham Clinton; Sen. Mitt Romney; former Sens. Lloyd Bentsen and Sam Nunn; former U.S. Health and Human Services Department Secretary Sylvia Mathews Burwell; former U.S. Secretary of Treasury Robert Rubin; and former Govs. Michael Dukakis and Pete Wilson.5
Decision making focused by listing pros and cons in writing holds a long pedigree among American leaders. In 1952, for example, Ohio Sen. Robert A. Taft composed a written list to help him decide whether to challenge Gen. Dwight D. Eisenhower for the Republican presidential nomination.6
These leaders recognized that committing arguments to writing can often focus decision making more clearly than oral contemplation can. Prominent judges share this recognition. “All of us have had seemingly brilliant ideas that turned out to be much less so when we attempted to put them to paper,” explained U.S. Circuit Judge Wade H. McCree, Jr.7 “Every conscientious judge has struggled, and finally changed his mind, when confronted with the ‘opinion that won’t write.’”8
“The act of writing,” explained U.S. Circuit Judge Frank M. Coffin, “tells what was wrong with the act of thinking.”9
Choosing the Format
Rather than listing pros and cons in two columns to expose tentative decisions that “won’t write,” lawyers or others might draft longer passages, or even short informal essays. Personal preference determines the most productive format because the point-counterpoint is normally for the writer’s eyes only, unless the writer shares the document with others.
Regardless of the format, disciplined writing can influence not only lawyers’ personal and professional decision making, but also the advice that lawyers provide clients about how to reach their own decisions on important matters within or outside the scope of representation. Some clients may already understand how committing arguments to writing can stimulate disciplined reflection, but other clients may not.
A Natural Impulse for Lawyers
Written decision making should come naturally to lawyers because (as discussed below) it remains central to the American trial and appellate court systems, and thus to the way law schools prepare students for brief writing and other practical skills. In bench trials or actions tried to an advisory jury, Rule 52(a)(1) of the Federal Rules of Civil Procedure requires the trial court to “find the facts specially and state its conclusions of law separately.” Appellate courts commonly hand down decisions that articulate reasoning in signed opinions (including majority, plurality, concurring, and dissenting opinions), per curiam opinions, or unpublished opinions.
The trial court’s written findings of fact and conclusions of law focus on appellate review, enable application of preclusion doctrines, and seek to inspire confidence in the soundness of the trial court’s decision making.10 But federal courts of appeals recognize the paramount purpose of Rule 52(a), “that of evoking care on the part of the trial judge in ascertaining the facts.”11 The U.S. Supreme Court recognizes that “laymen, like judges, will give more careful consideration to the problem if they are required to state not only the end result of their inquiry, but the process by which they reached it.”12
In United States v. Forness in 1942, the U.S. Court of Appeals for the Second Circuit explained Rule 52(a)’s paramount purpose.13 The unanimous panel included Judge Charles E. Clark, the chief drafter of the Federal Rules of Civil Procedure and an authority on their meaning and application.
Writing for the Forness panel, Judge Jerome Frank said this: “[A]s every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness … Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper.”14 Judges hold no monopoly on this knowledge of writing’s influence.
Appellate Decision Making
An appellate court’s full opinion or more abbreviated writing demonstrates that the court considered the parties’ arguments, facilitates further review on remand or by a higher court, and helps determine the decision’s meaning as precedent. But the writing’s capacity to sharpen the decision makers’ thought processes also looms large.
Chief Justice Charles Evans Hughes found “no better precaution against judicial mistakes than … setting out accurately and adequately the material facts as well as the points to be decided.”15 “The process of writing signed opinions,” explained Justice Ruth Bader Ginsburg, is “a testing venture.”16 “I don’t really understand any case until I write it,” says Justice Elena Kagan.17
The “Human Factor”
Written personal or professional decision making sometimes has its limits. When emotions and other intangibles weigh in, the outcome does not necessarily depend on which side of the legal pad’s ledger — pro or con — recites the longer list. Writing in Forness, Judge Frank acknowledged that “fact-finding is a human undertaking” that “can, of course, never be perfect and infallible.”18
Naturalist Charles Darwin, for example, wrote out the pros and cons of getting married before he proposed to his future wife.19 His list contained 13 “cons” and only nine “pros,” but he married her anyway. The couple remained married for 43 years and had 10 children.20
When Thomas P. Schneider’s term as U.S. attorney for the Eastern District of Wisconsin ended a few years ago, he weighed offers to join large influential law firms at handsome salaries, plus friends’ suggestions that he cap his 29-year career as a prosecutor by running for state attorney general. The Milwaukee Journal Sentinel reported that Schneider took a legal pad and divided the page into two columns lengthwise, one for pros and the other for cons.21
Then his wife stepped in and told him to cast the legal pad aside. “This is not a legal brief,” she told him, “This is your life.”22
The rest is history, as it was with New York Giants quarterback Eli Manning. Schneider spurned politics and lucrative private law practice to become executive director of COA Youth and Family Centers, an agency dedicated to helping Milwaukee children, teens, and families reach their greatest potential through a continuum of educational, recreational, and social work programs. The human factor, an emotional inner sense, tilted the scale and ultimately carried the day for the career prosecutor.
“I’ve always loved working with kids,” Schneider told the Journal Sentinel, “What I really care about is how do you make a positive difference in this world.”23 The personal calibration of reason and passion cannot be committed to dual columns on a legal pad.
1 Douglas E. Abrams, a University of Missouri law professor, has written or co-written six books, which have appeared in a total of 22 editions. Four U.S. Supreme Court decisions have cited his law review articles. His writings have been downloaded worldwide more than 36,000 times. This article is adapted from the Postscript of his latest book, Effective Legal Writing: A Guide for Students and Practioners (West Academic 2d ed. 2021). Copyright 2021 by West Academic. Reprinted by permission.
2 Stephen King, On Writing: A Memoir of the Craft 131 (2000).
3 Rick Cleveland, Mannings endure boos, slurs and media criticism . . . and life goes on, Clarion-Ledger, May 2, 2004, at 1D.
4 Robert W. Merry, Taking on the World: Joseph and Stewart Alsop – Guardians of the American Century 548 (2012); Michael D. Langan, Richard Nixon in 3-D: How he looks in the 21st century, Buffalo News, July 5, 2015, at C30; Mindy Fetterman, CEOs advise the president, USA TODAY, June 28, 1991, at 1B; Anne Reilly Dowd, How Bush Manages the Presidency, Fortune Magazine, Aug. 27, 1990, at 68.
5 Neela Banerjee, Clinton pushes back against critics on Benghazi, L.A. Times, June 15, 2014, https://www.latimes.com/nation/politics/politicsnow/la-pn-hillary-clinton-benghazi-20140615-story.html; Alessandra Stanley, ‘Mitt’: At Times, Nice Guys Finish Second, N.Y. Times, Jan. 24, 2014, at C1; Donald M. Rothberg, With a War On, Even Democrats Want Bush For President, Lewiston Morning Trib., Feb. 17, 1991, at 1A; Eric Schmitt, Even G.O.P. Asking Nunn Not To Retire From Senate, N.Y. Times, Oct. 2, 1995, at A10; Linda Feldmann, Who Is Sylvia Mathews Burwell? The likely new face of Obamacare, Christian Sci. Mon., Apr. 11, 2014; Sharon Walsh, Rubin Will Share Helm at Citigroup, Wash. Post, Oct. 27, 1999, at E1; Stuart K. Spencer, Dukakis Picking His Second Place, L.A. Times, July 3, 1988, at pt. 5, p. 3; Jerry Roberts, Wannabe Wilson Searches His Soul, S.F.Chron., Mar. 5, 1995, at 7.
6 David Halberstam, The Fifties 205 (1993).
7 Wade H. McCree, Jr., Bureaucratic Justice: An Early Warning, 129 U. Pa. L. Rev. 777, 790–91 (1981); see also, e.g., Robert E. Keeton, Judging 137 (1990) (“the necessity of explaining disciplines choice”); Ruth Bader Ginsburg, Workways of the Supreme Court, 25 T. Jefferson L. Rev. 517, 526 (2003) (“At least once each of the nine terms I have served on the Court, an opinion writer finds that the conference position, in whole or in part, ‘won’t write,’ so the writer ends up taking a different view.”).
8 Wade H. McCree, Jr., supra note 7 at 790–791.
9 Frank M. Coffin, The Ways of a Judge: Reflections from the Federal Appellate Bench 57 (1980).
10 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 9C Section 2551-2650, at 219–22 (3d ed. 2008).
11 United States v. Forness, 125 F.2d 928, 942 (2d Cir. 1942).
12 United States v. Merz, 84 S. Ct. 639, 199 (1964).
13 Forness, supra note 11, 125 F.2d 928.
14 Id. at 942.
15 Charles Evans Hughes, The Supreme Court of the United States 64 (1928).
16 Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. 133, 139 (1990).
18 Forness, supra note 11, 125 F.2d at 943.
19 Malcolm Jones, Who Was More Important: Lincoln or Darwin?, Newsweek, July 14, 2008, at 30; Mary Harris Russell, 2 Views of a Remarkable Scientist, Chi. Trib., Jan. 3, 2009, at 3.
20 William Hartston, Ten things you never knew about… Charles Darwin, The Express, Jan. 7, 2009, at 30.
21 Gina Barton, From Courthouse to Social Service Agency, Milwaukee J. Sentinel, Nov. 17, 2002, at 1B.