Wednesday, December 11, 2002

An email conversation that I had with Seth Edenbaum, triggered by his posts lately about sincerity and other values in artistic communication, has stirred up thoughts in my head about the aesthetics and artistic content of legal writing. In particular, there is this quote from Seth's site:

"Something can be judged a work of it art if its arguments are rendered with an idiosyncratic subtlety beyond what is necessary to communicate its ideas, and which may even oppose them, but which so colors our perceptions that we can not separate the sensibility from the idea without feeling a loss.
Subtlety beyond necessity but not without purpose."

Thinking of legal communication as being artistic in this sense may seem like an oxymoron, or at least a very very bad idea, if you think that legal writing must always strive to be as un-idiosyncratic and as crystal-clear as possible. Some legal writing does strive for that – an aesthetic that purports to be a rejection of all aesthetic considerations – including, for instance, most of the very good briefs put out by the Solicitor General's office.

But I don't think that we all have to strive for that same style. I think that, for those of us who do not represent the Government in all of its bland grandness, a little idiosyncrasy and artistic flair is a good thing in a brief. It keeps the brains of the writer and the reader alive. And it does not have to amount to a sacrifice of clarity, but can instead be something in addition to, and enhancing, the clear communication of ideas.

But I fantasize that maybe it would be possible to crank this up by several notches, to persuade not through clear argument but through intentionally artistic lack of clarity – that the question that I would ask myself, in preparing an oral argument or writing a brief is, "should I be going for a sort of Astral Weeks feeling here? Or more of a Gus Viseur thing?" My colleagues, however, can rest assured that I won't be trying out this tactic at my next oral argument in the Eleventh Circuit in a few weeks.

UPDATE: Seth explains, in a very kind way, that I still don't quite know what I'm talking about. I think he's right (and, as a first step before that, I think that I now understand); but I'd still like a chance to write a Gus Viseur brief.

posted by sam 9:04 AM 0 comments

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