How I Switched from Legal Writing to . . . Illegal?

I once represented a company whose staff attorney was being cross-examined by my opposing counsel. As he asked her a long series of questions about the company’s “legal department,” she grew more and more irritated. “Sir,” she finally snapped. “All of our departments are legal. I work for the law department.

(Incidentally, the reason we don’t call such lawyers “in-house counsel”? Because that makes the rest of us “outhouse counsel.”)

I’m reminded of this testimony every time people ask me about making the switch from legal writing to novels. All my writing is legal! But I see their point. Legal writing has a reputation for being dry and impenetrable, while fiction should be just the opposite.

But I was an English major before law school, and I brought all that baggage to my law career. First, I was a stickler for the rules of good writing. I became known around the office as Madame Grammarian, and I may have been the last lawyer on earth to insist upon using the subjunctive mood. Second, I approached every case that came my way as a new novel to read, with a cast of characters to get to know, a plot to watch unfold, and sometimes even a Big Reveal. But eventually it wasn’t enough to read those novels. They were never satisfying enough. I had to write my own.

Of course I’m hardly the first lawyer to make the transition to novelist. Law school is a well-traveled on-ramp to a writing career. But not many lawyer-authors spent as much time in the trenches as I did. Most of the big names found their true calling after putting in only a couple years at the bar. I wasn’t that smart. And to compound my sins, not only was I a long-time legal writing practitioner, I was a long-time legal writing instructor. Little wonder people might be wary.

Case in point. When I was seeking a literary agent for my first novel, I did as all the guidebooks recommended and included in my query a biographical sketch that highlighted my work as a lawyer. A prominent agent wrote back expressing an interest but only if I could assure her that I had moved beyond legal writing, because “You know what? There’s a huge stylistic difference between legal writing and fiction writing.”

But you know what? There isn’t. At least not with the kind of legal writing I did. I didn’t write contracts or wills. I didn’t dabble in parties of the first part and parties of the second part, or litter my prose with Whereas and Heretofore. I was a litigator, and my writing was aimed at an audience of one, sometimes three, and on special occasions nine. Its sole purpose was to persuade.

Richard Russo in his essay “The Gravestone and the Commode” (part of his terrific collection, The Destiny Thief), described the writer’s problem as getting other people to see things as you do. That was my challenge as a litigator: to get judges to see things my way. In order to persuade them, I needed to engage them. And yes, sometimes even entertain them. So I peppered my briefs with colorful language, pithy sentences, strong action verbs. I didn’t shy away from literary allusions or even pop-culture references.

So for me at least, the transition from legal writing to illegal was an easy one. The only real difference between how I wrote as a lawyer and how I write today? My legal writing was necessarily constrained by the actual facts of the case. As a novelist, I now have the supreme luxury of making them up.