Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

January, 2021

Thoughts on Legal Writing from Ursula K. LeGuinGerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/387/

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JournalNEW YORK STATE BAR ASSOCIATION

Jan/Feb 2021

VOL. 93 | NO. 1

Supreme Shift: What the 6-3 Conservative Majority Means Going Forward

Vincent Martin Bonventre

What the Biden Administration Will Mean for LawyersHow Lawyers Can Help Close the Climate GapQualified Immunity: Is the End Near?

In this issue: Departments: 16 What the Biden Administration

Will Mean for Lawyers by Matthew Krumholtz

20 “Zoom & Greet!”2021’s Way To Meet, Network and Socialize at Annual Meeting and Beyond by Michael L. Fox

22 Qualified Immunity: Is the End Near? by Wylie Stecklow

26 Alternatives to Eviction: Legal Remedies When Faced With a Mentally Ill Tenant by Carolyn Reinach Wolf and Jamie A. Rosen

31 Ready To Leave the Hospital but No Way Out: For Hospitalized Immigrants, COVID-19 Can Be a Life Sentence by Julie Stoil Fernandez

34 Environmental Racism: How Lawyers Can Help Close the Climate Gap by Vivian D. Wesson

38 The Impact of IRS Form 1099 Rules on Lawyers and Clients by Robert W. Wood

42 RBG and the Girls by John Q. Barrett

44 Copyright Considerations as Art Galleries and Museums Move Online in the Wake of COVID-19 by Amelia K. Brankov

5 President’s Message

49 Hilary on the Hill The Biden Administration: Three NYSBA

Issues To Look for in the First 100 Days by Hilary Jochmans

52 Attorney Professionalism Forum by Vincent J. Syracuse

Maryann C. Stallone Alyssa C. Goldrich

57 State Bar News in the Journal

60 Classifieds

62 Marketplace

63 2020–2021 Officers

65 The Legal Writer by Gerald Lebovits

Contents Jan/Feb 2021 VOL. 93 | NO. 1Journal

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The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the New York State Bar Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. For submissions guidelines: www.nysba.org/JournalSubmission. Material accepted may be published or made available through print, film, electronically and/or other media. Copyright ©2021 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued six times each year, as follows: January/February, March/April, May/June, July/August, September/October, November/December. Single copies $30. Library subscription rate is $210 annually. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

Supreme Shift: What the 6-3 Conservative Majority Means Going Forward

9

by Vincent Martin Bonventre

Journal, Jan./Feb. 2021New York State Bar Association 64

T H E L E G A L WRITER

Gerald Lebovits (GLebovits@aol.com), an acting Supreme Court justice in Manhattan, is an adjunct at Columbia, Fordham, and NYU law schools. For his research, he thanks Chris Haughey (Fordham University School of Law), his judicial fellow.

Thoughts on Legal Writing From the Greatest of Them All: Ursula K. Le Guin

Gerald Lebovits (GLebovits@aol.com), an acting Supreme Court justice in Manhattan, is an adjunct at Columbia, Fordham, and NYU law schools. For his research, he thanks Chris Haughey (Fordham University School of Law), his judicial fellow.

Journal, Jan./Feb. 2021New York State Bar Association 65

The Legal Writer continues its series on what we can learn from the great writing teachers. In this

column, we discuss Ursula K. Le Guin and her essential guide, Steering the Craft: A 21st-Century Guide to Sailing the Sea of Story. Although focused primarily on narrative prose, Steering the Craft is an informative and interac-tive handbook designed to improve all forms of writing, including legal writing. Le Guin was an American writer of speculative fiction. Best known for The Left Hand of Darkness and the Earth-sea fantasy series, she published more than 60 works of fiction, fantasy, children’s literature, poetry, drama, criticism, and translation.1 Despite their science-fiction focus, her stories incorporated themes of cultural anthro-pology, feminism, Taoism, and many other social and political philosophies.2 Immensely popular and influen-tial in fiction and literary criticism, Le Guin was the win-ner of the PEN/Malamud Award and the National Book Foundation Medal for Distinguished Contribution to American Letters.3 In 2000, the U.S. Library of Congress named her a Living Legend.4 Author Michael Chabon considered Le Guin “the greatest American writer of her generation.”5 Le Guin died in 2018 in Portland, Oregon, at the age of 88. Composed of 10 chapters, or lessons, Steering the Craft is divided into three components: lessons on the essen-tials of good writing, examples of the essentials from renowned works, and practice exercises. Le Guin was an advocate of developing the craft of writing in peer groups, which “offer[] mutual encouragement, ami-cable competition, stimulating discussion, practice in criticism, and support in difficulty.”6 But she warned that “the judgment that a work is complete — this is what I meant to do, and I stand by it — can come only from the writer, and it can be made rightly only by a writer who’s learned to read her own work.”7

Le Guin focused her 10 lessons on what she considered the basic elements of narrative: “how a story is told, what moves and what clogs it, starting right down on the level of the elements of language.”8 For the writing exercises, Steering the Craft instructs readers to practice an essential element, write methodically, and then revise later with a fresh eye. The book provides writing prompts so readers do not needlessly stall their learning experience.

What it has to do is move — end up in a different place from where

it started. That’s what narrative does. It goes. It moves. Story is change.9

THE SOUND OF YOUR WRITINGTo Le Guin, the foundation of language is its sound. She wrote that “[t]he test of a sentence is, Does it sound right?”10 The sound of language is both what the reader hears when words are spoken and the silences in between. Noise and silence create the rhythm of a written work. Good writers must be aware of the sound of their writing. Is the writing dull, choppy, droning, jerky, or feeble? Or does it have forward movement, pace, and rhythm? The best way for writers to be aware of their sound is to read their writing, using a keen inner ear to hear its rhythm.

PUNCTUATION AND GRAMMAR

The misuse of language induces evil in the soul.11

Le Guin instructed that punctuation is the writing device by which writers tell their reader how to hear their work. She believed that “[i]f you aren’t interested in punctuation, or are afraid of it, you’re missing out on some of the most beautiful, elegant tools a writer has to work with.”12 Le Guin analogized punctuation marks to rest-signs in music: both indicate a moment of silence. As she explained, “[c]ommas and periods bring out the gram-matical structure of a sentence; they make it clear to the understanding, and the emotions, by showing what is sounds like — where the breaks come, where to pause.”13 Le Guin found punctuation and grammar inherently intertwined, “because to a large extent learning how to write grammatically is learning how to punctuate, and vice versa.”14 Regarding the broader discussion of grammar and punctuation, Le Guin walked the thin line between upholding the rules of grammar and disagreeing with grammar-correctness bullies, who fervently critique writing for not abiding stringently to archaic rules. She concluded, “[w]riting can be completely conversational and informal, but to communicate thought or emotion of any complexity at all, it has to follow the general agreements, the shared rules of grammar and usage.”15 A writer may break a rule of grammar only with skill and intention.

SENTENCE LENGTH AND COMPLEX SYNTAXSteering the Craft posits that “[i]n a narrative, the chief duty of a sentence is to lead to the next sentence.”16 A

G E R A L D L E B O V I T S

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sentence, Le Guin explained, “needs one quality above all else: coherence. A sentence has to hang together.”17 In instructing her readers on how to make their sen-tences more coherent, she discussed the most common mistakes in sentence design: misplacement, danglers, and conjunctivitis. Le Guin considered misplacement the most common mistake. She gave an example: “She fell down as she stood up and broke her nose.”18 Le Guin argued that it’s the writer’s job to find the “one best way” for the parts of a sentence to fit together. Since it’s easy to mis-place words in a sentence, the best writers have a keen eye while editing and can revise and rewrite until the sentence is at its best. Effective editing skills are required to also fix the second common mistake: danglers. Le Guin provided an exam-ple: “After eating a good dinner, the sofa looks plump and alluring.”19 Subject-verb agreement is a foundation of sentence clarity.As to conjunctivitis, Le Guin warned, “stringing short sentences together with conjunctions is a legitimate stylistic mannerism, but used naively, it sets up a kind of infantile droning that makes the story hard to follow.”20A good writer doesn’t seek clarity only at the sentence-level but also places the rhythm of each individual sentence into the rhythm of the whole piece. A mindful eye toward the length of sentences is key in developing the piece’s rhythm and grace. Le Guin objected to the common, elementary view that the only good sentence is a short one. Instead, she held, “[t]here is no optimum sentence length. The optimum is variety.”21

REPETITIONLe Guin argued that one of the strangest and most arbitrary rules of language is that the same word can’t be used twice on the same page. Although repetition is awkward when writers use the same word too often or emphasize words for no reason, “a rule never to use the same word twice in one paragraph, or to state flatly that repetition is to be avoided, is to go right against the nature of narrative prose.”22 Repetition, used skillfully, is an effective part of the clarity and power of prose.Repetition is also one of the central means of achieving rhythm in writing. It shouldn’t be limited only to words and phrases. Structural repetition involves the entire story, in which events throughout the plot echo each other. Steering the Craft provides the example of Jane Eyre, a renowned novel that introduces material in its first chapter that forms a thematic pattern throughout its entire story. Regarding a nonfiction writer using structural repetition, Le Guin warned that “to force

unlike events into a repetitive pattern certainly would be cheating. But to be aware of an existing pattern in the events of a life surely is one of the memoirist’s goals.”23

ADJECTIVES AND ADVERBSLe Guin believed that “[a]djectives and adverbs are rich and good and nourishing. They add color, life, immediacy. They cause obesity in prose only when used lazily or overused.”24 To cut down on obesity, Le Guin instructed, “when the quality that the adverb indicates can be put in the verb itself . . . or the quality the adjec-tive indicates can be put in the noun itself, . . . the prose will be cleaner, more intense, more vivid.”25 She gave examples: They ran quickly = they raced; a growling voice = a growl.26 Le Guin also taught that qualifiers need to be rooted out of prose. Examples of such adjectives and adverbs are rather and a little, “which soften or weaken the words they modify.”27 Literary overuse has also made some adjectives and adverbs — great, suddenly, some-how — meaningless. Ornate, fancy adjectives should be used only sparingly. When writers don’t successfully link fancy adjectives to the nouns they describe, prose becomes clunky, forcing readers to stop and figure out what’s happening, thereby ruining the rhythm of sto-ries.

VERBS: PERSON AND TENSELe Guin defined the essence of verbs as “the shortest way to say exactly what I meant. That’s what verbs, in all their moods and tenses, are for.”28 Steering the Craft instructs that “[i]n language, verbs are what do things, the person of the verb is who does them (a name or a pronoun), and the tense of the verb is when they do it.”29 Except for autobiographical prose, nonfiction must be written in the third person. Fictional prose can be in first singular (I), third singular (she, he), first and third plural (we, they), and, although rare, in second person (you). For verb tenses, Le Guin argued that writers shouldn’t mistakenly believe that past tense is solely for past events and present is just for the now. She challenged her readers to write in tenses in which they are less comfortable. But after a writer chooses a tense in which to begin writing, she warned, “a tense switch in written narrative isn’t a minor thing. It’s a big deal, like chang-ing viewpoint characters. It can’t be done mindlessly. It can be done invisibly, but only if you know what you’re doing.”30

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On one of the more contentious topics in literary criti-cism, Le Guin held that “too many people who yatter on about ‘you should never use the passive voice’ don’t even know what it is.”31 She taught that the use of pas-sive is determined by where it belongs. It can add an effective versatility to verbs. But where it doesn’t belong — academese or scientific or business English — it must be rooted out.

POINT OF VIEW AND VOICE In chapter seven, Le Guin explains, “[p]oint of view (POV for short) is the technical term for who is telling the story and what their relation to the story is.”32 The character speaking from this point of view is the view-point character. The principal points of view are first person, limited third person, involved author (“omni-scient author”), detached author, observer-narrator (using the first person), and observer-narrator (using the third person). In nonfiction narrative of any kind, the “I” is the author. Readers expect this narrator to be reliable: “to try honestly to tell us what they think happened — not to invent, but to relate.”33 Fiction writing, in contrast, doesn’t always require a reliable narrator. A famous example of a semi-reliable fictional narrator is Huck Finn. According to Le Guin, Mark Twain’s use of Finn’s voice allows the reader to “see or guess what ‘really’ hap-pened, and using this touchstone, . . . readers are led to understand how other people see the world, and why they (and we?) see it that way.”34 Le Guin warned that the narrative problem she encoun-tered most often is the mishandling of POV, which manifests into inconsistent and frequent POV changes. “Any shift from one of the five POVs outlined above to another is a dangerous one,”35 she argued. Any shift, even seemingly minor ones, can throw off a narrative’s entire tone and structure. To correct the mistake, Le Guin taught that “[a] writer must be aware of, have reason for, and be in control of all shifts of viewpoint character.”36 POV problems are prevalent in nonfiction, too. Stating an actual person’s thoughts, without a direct quotation, is the author’s guesswork, opinion, or interpretation. Using limited third person in nonfiction is “to trespass, pretending you know what another real person thought and felt.”37 Le Guin instructed that “[m]emoirists can’t be omniscient, even for a moment.”38

CHANGING POINT OF VIEWLe Guin didn’t contend that a writer can never change point of view. Rather, she argued, an author must know when and how to do it so the change in POV doesn’t

disrupt the rhythm of the narrative. She explained that “[p]articularly disturbing is the effect of being jerked into a different viewpoint for a moment.”39

INDIRECT NARRATION: OR WHAT TELLSLe Guin distinguished plot and story, two aspects of storytelling that writers regularly mistake to mean the same thing. She clarified that “[p]lot is merely one way of telling a story, by connecting the happenings tightly, usually through causal chains. Plot is a marvelous device.”40 But she stressed that plot is neither essential nor superior to story. Furthermore, while Le Guin agreed that a story needs action to move, the action may be “nothing more than a letter sent that doesn’t arrive, a thought unspoken, the passage of a summer day. Unnecessary violent action is usually a sign that in fact no story is being told.”41 Writers debate about how many types of plot exist. But the number of possible stories is limitless. Some writers plan out the structure of their plot before writing their story. Le Guin believed that’s fine, but it’s not the only way to write. A plot doesn’t need to dictate how a story is told. Steering the Craft also discusses how to provide infor-mation in a narrative. Most readers can imagine what a story set in Chicago in the mid-2000s looks like, but this isn’t the case for unfamiliar settings. In science fic-tion, for example, authors and their audience must cre-ate the unfamiliar world together. In doing so, Le Guin warned about the expository lump, in which the writer describes the entire setting in an awkward, wordy lec-ture. Instead, “[c]rafty writers (in any genre) don’t allow Exposition to form Lumps. They break up the informa-tion, grind it fine, and make it into bricks to build the story with.”42 As with all the lessons in her book, the first step for a writer to correct expository lumps is to have a keen eye that recognizes a problem. Practice is the best solution. On the subject of voices, Le Guin explained that “[w]hat’s needed . . . is conscious and serious practice in hearing, and using, and being used by other people’s voices. Instead of talking, let other people talk through you.”43 To improve writing voice, writers should simply listen closely to people in everyday life. This practice helps writers develop an awareness for the myriad ways in which people speak and sound. When writing from an actual person’s POV, nonfiction writers must learn that individual’s personal language.

CROWDING AND LEAPINGSteering the Craft teaches readers to crowd their sto-ries with everything needed to make fantastic literary

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1. Gerald Jonas, Ursula K. Le Guin, Acclaimed for Her Fantasy Fiction, Is Dead at 88, N.Y. Times (Jan. 23, 2018), https://www.nytimes.com/2018/01/23/obituaries/ursula-k-le-guin-acclaimed-for-her-fantasy-fiction-is-dead-at-88.html.2. John Clute, Ursula K Le Guin Obituary, The Guardian (Jan. 24, 2018), https://www.theguardian.com/books/2018/jan/24/obituary-ursula-k-le-guin.3. Jonas, supra note 1. 4. Fellow Writers Remember Ursula K. Le Guin, 1929-2018, Library of America (Jan. 26, 2018), https://www.loa.org/news-and-views/1375-fellow-writers-remember-ursula-k-le-guin-1929-2018.5. Id.6. Ursula K. Le Guin, Steering the Craft: A 21st-Century Guide to Sailing the Sea of Story xi-xii (First Mariner Books 2015).7. Id. at xii.8. Id. at xiii.9. Id. at xiv. 10. Id. at 1.11. Id. at 14 (quoting Socrates).12. Id. at 11.13. Id.14. Id. at 13.15. Id. at 16.16. Id. at 20.17. Id.18. Id. at 21.19. Id. at 22.20. Id.21. Id. at 24.22. Id. at 37.23. Id. at 42.24. Id. at 43.25. Id.26. Id.27. Id.28. Id. at 54 (footnote).29. Id. at 47.30. Id. at 56.31. Id.32. Id. at 61.33. Id. at 62.34. Id. at 63.35. Id. at 70. 36. Id.37. Id. at 71.38. Id. at 70.39. Id. at 88.40. Id. at 94-95.41. Id. at 94-95.42. Id. at 96.43. Id. at 100.44. Id. at 118.45. Id.46. Id. at 122.47. Id.48. Id. at 124.49. Id.50. Id. at 126.

works. Le Guin advised that “[v]ivid, exact, con-crete, accurate, dense, rich: these adjectives describe a prose that is crowded with sensations, meanings, and implications.”44

Crowding is only half the writing experience. By leap-ing, a writer leaves out everything not essential to the story. Leaping creates gaps that drive the rhythm of the work and the imagination of the reader. Le Guin believed that “[t]here’s got to be white space around the word, silence around the voice. Listing is not describ-ing. Only the relevant belongs. Some say God is in the details; some say the Devil is in the details. Both are correct.”45

It’s okay, and even advisable, for writers to overcrowd in their first draft. Writers should tell it all, making sure everything is in the story. Then, to move a story and keep it clear, writers must delete what’s not needed. Action writers tend not to leap enough. They crowd their stories by giving a play-by-play of a fight or sport-ing event. Such overcrowding leads only to confusion and boredom. Writers must allow readers to imagine what’s happening.Le Guin defined “story” as “a narrative of events (external or psychological) that moves through time or implies the passage of time and that involves change.”46 She considered plot “a form of story that uses action as its mode, usually in the form of conflict, and that closely and intricately connects one act to another, usu-ally through a causal chain, ending in a climax.”47 To be complete, a story needs trajectory, a movement to follow. The trajectory is “the shape of the story as a whole. It moves always to its end, and its end is implied in its beginning.”48 Writers craft trajectories through crowding and leaping. Le Guin taught that “[e]very-thing that is crowded in to enrich the story sensually, intellectually, emotionally, should be in focus — part of the central focus of the story. And every leap should be along the trajectory, following the shape and movement of the whole.”49 Severe cutting during revision forces a writer to weigh every word. Doing so creates clear prose that moves a story smoothly along its trajectory from beginning to end. Le Guin concluded Steering the Craft with a succinct explanation of her entire writing process: “Some people see art as a matter of control. I see it mostly as a mat-ter of self-control. It’s like this: in me there’s a story that wants to be told. It is my end; I am its means. If I can keep myself, my ego, my wishes and opinion, my mental junk, out of the way and find the focus of the story, and follow the movement of the story, the story will tell itself.”50