October 14, 2008
On Writing Backwards
Posted by Gordon Smith

A young legal scholar just sent me the following question via email: "I'd love to hear at some point how you organize data as your researching (how you take notes, etc?)  I'm having a hard time dealing with my mountains of articles and books."

This is my response: "This is a tough issue for me. I have never been great at organizing mountains of research because I tend to write papers 'backwards.' Maybe this is because I am left handed, but I usually start writing before have done the research. (True confessions.) This is the method Richard Epstein taught me while I was at Chicago. I sketch out my thoughts on a subject, then use the research to refine or develop those thoughts. It sounds terribly inefficient, but it prevents me from being overly influenced by what others have written. Anyway, using this method means that most of my notes are put right into the draft of the paper, which I edit mercilessly as I get closer to publication."

Hmm ... that does not seem at all responsive to the initial question. Any thoughts on note software or other methods?

UPDATE: I should add that backwards writing doesn't work on empirical pieces ... at least for me. But most of my work is not empirical. And it's not as if I am starting with a completely blank slate on any project, since I have read lots of cases and scholarship before I begin. As a result, the first draft is a sketch of an argument in its starkest form, and that sketch gets more nuanced through subsequent drafts. In some instances, the initial argument becomes implausible and the whole piece changes or is abandoned. That's one of the hazards of writing backwards.

 

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Comments (3)

1. Posted by Jake on October 14, 2008 @ 20:06 | Permalink

Gordon has some great insights on persuasive legal writing here. I comment from the perspective of a litigator, which means that whatever I burden a judge with has to have empirical content, meaning evidence to back it up. This is not to suggest that the kind of writing that legal scholars produce is entitled to any less respect.

Writing backwards is the best way to get started on a memorandum.

(1) Consider the conclusion you want the reader to agree with, then draft an outline of the argument. I usually do this by drafting the section headings in the brief at the outset of the creative process.

Yes, the initial argument may become implausible as the work proceeds, but I would disagree that is a hazard of writing backwards. It is merely a sign of intellectual integrity.

(2) After the initial outline, one must conduct "a microscopic examination of the record" (to quote the judge I clerked for) to identify the facts -- and case law, for that matter -- that cut for and against your argument. This is difficult work, and I sympathize with the young legal scholar who approached Gordon with this lament, but there is no substitute for doing it.

(3) Once you have a solid outline and a firm grasp of the facts and law, completing a polished legal memorandum, whether a brief or a scholarly piece, is easy.

Three steps to persuasion.

I do not have an easy explanation for step (3) as I describe it. All I know is that some years ago the light bulb came on, and writing persuasive briefs became a lot easier. I had help, of course, from colleagues who helpfully beat bad writing habits out of me.

I would add that, like Gordon, my early drafts are full of all sorts of goofy notes to myself to think about various hypotheses, or search out evidence on certain points. If there is any sort of note software that would help, as Gordon inquires, I would love to hear about it. Thus far I've survived on the software in my skull, but it's not getting any younger.


2. Posted by Donald Clarke on October 15, 2008 @ 21:28 | Permalink

I find Ecco Pro to be a great notetaking tool. This is a piece of software put on the market in 1993 and subsequently orphaned (no development after 1997). It does not work well with other Windows programs (you can copy and paste, but that's about it); it doesn't do footnotes; it can't handle exotic languages like Chinese. But it has a very useful and easy-to-use collapsible/expandable outline structure (in which you can easily aggregate or disaggregate sections, move them to different places in the outline, promote or demote their ranking, etc.) that I have never found matched in any other piece of software (and because of all the above drawbacks, I keep looking). MindManager is not bad, but it is really for brainstorming and not for writing entire articles or books. There are still support groups for Ecco Pro. For more information, go here: http://www.compusol.org/ecco/


3. Posted by Orin Kerr on October 16, 2008 @ 22:08 | Permalink

I write backwards, too. I hammer out the idea as a I write, and once I have the basic article sketched out, I go back and see if anyone has actually written anything like it.

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