Trial Briefs

Conquering Writer’s Block With Whirligigs and Madmen

November 10, 2021   |   Bonnie Keith Green

Find more on legal writing in the fall 2021 edition of Trial Briefs online.

Staring at the blank page before you: This line, from Natasha Bedingfield’s Grammy-nominated song “Unwritten,” describes our predicament as lawyers faced with a writing project. It doesn’t really matter the type of the project — a brief, demand letter, pleading, or seminar manuscript — all writing starts in the same place.

The song lyrics describe the place we begin: “I’m just beginning; the pen’s in my hand; ending unplanned.” It can be exciting to think about what we’re going to write and how we will persuade a court to rule in our client’s favor. But when faced with the blank page, our excitement may fade, and the writing process may come to a standstill.

What keeps us from getting started? Why do we experience writer’s block, a universal feeling experienced by many people, not just lawyers? It may be the fear that our written work won’t be good enough. It likely involves perfectionism and self-criticism. Our training, our duties to our clients, and the stress of our profession often lead us to have anxiety when we face the blank page and attempt to get started on a writing project.

Sometimes we avoid getting started by checking our phone, checking the score of the football or basketball game, or going to get another cup of coffee. We may think that trying out a different pen or starting to write in a different room will help matters.

The first piece of advice for getting started is usually aimed at creating some space for the writing to begin: clearing your calendar, turning off your phone and closing your door to minimize distractions. When we’ve created space from the distractions of our phones, colleagues and families, however, how do we create the space in our mind to start writing? How do we overcome the doubt, fear, perfectionism and judging?

There are two strategies I have incorporated consistently into my writing process. These approaches have made writing more productive and enjoyable for me. I first encountered these techniques in a seminar taught by legal writing expert Bryan Garner centered around his 2004 book, “The Winning Brief.”1 Garner is one of the foremost authorities on legal writing and has expanded his expertise more broadly into English usage and style. He has interviewed numerous judges and jurists on legal writing, including several U.S. Supreme Court justices, federal circuit judges and state appellate judges.2

Both strategies depend on one important requirement: You must start early enough to leave yourself plenty of time to use the tools. Perhaps more universal than writer’s block is our tendency to procrastinate. (If you haven’t yet, check out Tim Urban’s TED Talk titled “Inside the Mind of a Master Procrastinator” for a humorous glimpse inside our procrastinator brains.)

While deadlines, and some degree of anxiety, help us get a writing project done, we must start early enough to allow for the creativity that emerges from these strategies. This creative quality — yes, creativity — ultimately improves the writing process.

Free Thinking: Letting Your Thoughts and Creativity Loose

The first strategy concerns how the energy of your thought process is harnessed and released. The tactic here is “to let the madman run loose for a while.” The concept of the “madman” is from the madman-architect-carpenter-judge paradigm.3 The paradigm was developed by Dr. Betty S. Flowers, the former director of the Lyndon Baines Johnson Library and professor emeritus of English at the University of Texas at Austin. In the first stage of this paradigm, a writer lets the madman (or madwoman) run loose for a while. You really allow yourself time to think creatively, even imaginatively, about your case and topic before you articulate formal arguments or become too attached to a certain argument.

Contemplate the ease and freedom that this allows. As lawyers, we have been trained in the IRAC method: “Issue, Rule, Application, Conclusion.” We think we have to write like lawyers, using formalities and legalese to explain principles or make our case. More lyrics to the song “Unwritten” echo our training as lawyers: “We’ve been conditioned to not make mistakes.” We immediately begin judging our ideas, arguments and writing. This inner critic, and particularly the immediacy of the criticism, hampers our ability to have a free flow of ideas.

Instead of listening to the critic, let the madman run loose. The madman energy allows what is compelling about the subject to surface consciously.4 Write down your thoughts with no attention to detail, spelling, punctuation or grammar.

The other stages of the paradigm — architect, carpenter and judge — take the madman’s wild writing and fashion it into a polished product. The architect takes large chunks of the madman’s material and organizes it into a framework. The carpenter builds on the structure created by the architect, sentence by sentence. The judge enters only at the last stage, bringing the attention to detail necessary to finish the project.5

Nonlinear Outlining: the “Whirligig”

Illustration by Molly Drake

The second strategy I have consistently used is nonlinear outlining. This is tip five in Garner’s book: “Outline your brief, but start with nonlinear outlining.”6 Garner refers to the diagram as a “whirlybird.” I like to call it a “whirligig.” This visual reminds me of an Alexander Calder mobile in its simplicity and the feeling of mobility.
To create this diagram, you use one small circle in the middle of the page and four lines emanating from the center core. Off each of the four lines, you may have any number of lines, with additional lines off those lines.
You can’t do this nonlinear outlining on the computer. You need to use a pen or a pencil. Like the Montessori approach to children’s education, which focuses on head, hand and heart, nonlinear outlining recognizes the connection between our intellect and ideas and the act of writing. For NCAJ members, this connection is extremely important. We integrate our writing with our purpose: advocating for our clients, who have been injured and are seeking justice from the court to remedy the injury and injustice.

Nonlinear outlining allows the freedom to formulate your best arguments on behalf of your client. The benefit to the circular aspect of the whirligig is that no one argument is immediately given priority. You can look at the diagram and discern which arguments are the strongest and lead with those. You may use other arguments as fallback arguments or discard them altogether. One prong often will address the most important facts, or important facts will be on smaller prongs. The small space allows you to narrow your thinking to the most important facts.

If you’ve allowed sufficient time to let the madman run loose for a while and do nonlinear outlining, you will be positioned well to put pen to paper (or shift to the computer at this stage) and begin building the brief or other writing project — using the other three prongs of the Flowers paradigm — architect, carpenter and judge.

You may say that you don’t have time for this philosophical writing endeavor, because you have 50 other clients who need something immediately, not to mention a meeting with your colleagues and a family event to attend. These strategies, however, do not add significant time to the brief-writing process. They aren’t merely philosophical, either. They are very practical. Using the strategies can lower your anxiety, help you get started, and ultimately help you complete the project in a timelier way so that you can attend to your other clients, colleagues and family. The reward of taking the time is that your anxiety level goes down and your writing product is improved.

In his “Essay on Criticism,” originally published in 1711, the poet and satirist Alexander Pope wrote:

True ease in writing comes from art, not chance,
As those move easiest who have learned to dance.

Try these strategies the next time you have a writing project. Think of them as additional steps in the dance of
writing. They will add more creativity to your writing and your practice, creating more true ease and enjoyment in writing and the practice of law.

Resources

1 Bryan A. Garner, The Winning Brief (Oxford University Press 2nd ed. 2004).
2 Garner’s interviews can be found here: www.lawprose.org/bryan-garner/videos/garners-interviews (last visited Sept. 1, 2021).
3 See Garner, The Winning Brief, at 4 (citing Betty S. Flowers, Madman, Architect, Carpenter, Judge: Roles and the Writing Process, 44 Proceedings of the Conference of College Teachers of English 7-10
(1979)).
4 Betty S. Flowers, Madman, Architect, Carpenter, Judge: Roles and the Writing Process, Intellectual Entrepreneurship, www.ut-ie.com/b/b_ flowers.html (last visited Sept. 1, 2021).
5 Id.
6 Garner, The Winning Brief, 28-33.

About the Author

Bonnie Keith Green

The Green Firm, PLLC

Bonnie Keith Green

The Green Firm, PLLC

Bonnie Keith Green is an appellate litigator with The Green Firm, PLLC, in Charlotte, which she owns and operates. Green litigates civil and criminal cases in North Carolina’s appellate courts, the 4th Circuit, and other federal circuit courts. She graduated with honors from The University of Georgia School of Law in 1995, where she was a member of the Georgia Law Review. Green is a former law clerk to Judge Sam C. Pointer Jr. of the United States District Court for the Northern District of Alabama and to Judge Karen J. Williams of the United States Court of Appeals for the 4th Circuit. She currently serves on the NCAJ Women’s Caucus Executive Committee and is a former member of the NCAJ Legal Affairs Committee. Before forming her own firm in 2014, Green practiced complex civil and business litigation at Shumaker, Loop & Kendrick in Charlotte and at Friedman, Dever & Merlin in Atlanta, Georgia.