(Excerpts from “The Great Power at the Bar and Bench” [1972], Rivera
41-42, adapted from American Bar Association Journal 47:897 [1961])
A good writing style is heavily dependent upon the ear. We know that a particular piece of prose is good because there is a rhythm in it which we may not be able to define but which we hear nonetheless. We learn to write well ourselves by reason of these tones we pick up in our reading, but they will be missed if we read too fast.
A further obstacle to good use of language is, thus, the fact that we have so much to read these days that we have to develop the knack of racing through a lot of material. I have seen it said that the art of rapid reading, admittedly essential, may well be killing the sense of tone in prose as well as in poetry. Without that sense of tone, our own writing and speech will inevitably suffer.
There is one hopeful prospect, and that is that we seem to be moving to some degree toward a listening society rather than one which relies solely upon solitary reading. The radio, the long-playing record, the tape recorder, the television play or reading, are seeing to that. If the quality is good, the tones emerge, as in slower reading by oneself, and the cultivation of the ear will go on.
Now I should not like to be understood as suggesting that listening can ever become an adequate substitute for reading. Science is wonderful and it unquestionably has many fabulous surprises yet to reveal, but we can not anticipate that a better in method in the use of English will ever be contrived than that of sitting down and reading quietly to oneself. What is read is of course, equally critical.
We have recently had it on the authority of a member of the Supreme Court that the quality of both the oral argument and the briefs before that Court in Washington is, on the whole, distressingly low. The Justice in question has speculated that this is due to the narrowing cultural range of the profession, which in turn is a result of the restricted reading habits of lawyers, both in terms of the small amount of time devoted to general reading and the ephemeral character of what is read. The caliber of presentations to the Court, so it is said, tends to be higher in lawyers from smaller places. If so, this indicates that the pressures of urban practice and living are diverting successful city lawyers from those cultural activities which leaven the single-minded pursuit of the law.
On the need for breadth in those who hear and decide cases, Judge Learned Hand has said:
I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare, and Milton, with Machiavelli, Montaigne, and Rabelais, with Plato, Bacon, Hume and Kant, as with books which have been specifically written on the subject. For in such matters everything turns on the spirit in which he approaches the question before him….Judge Hand would also say, we can safely assume, that a lawyer who tries a constitutional case these days—and who hopes to win—should be similarly equipped. For most of us the bowing acquaintance with these sources which we acquired in college has become pretty faint with the passage of years and the preoccupations of making a living. But I believe we all would recognize the truth of the point Judge Hand is making. As the law grows and takes its shape from the changing and developing face of real life, success for the practicing lawyer, as also distinction for the judge, requires a largeness of spirit reflecting sensitivity to the wider world of which law is only a part.
But capaciousness of spirit is nothing if it cannot be communicated. The thinking of great thoughts is incomplete if the thinker cannot tell others what they are. The authors of Judge Hand's reading list did both; and one of the reasons we read them is for the lessons they teach in how to make words serve as the instruments of great ideas, as the means of making the ideas become guides to action in the experience of many more persons than the original thinkers. The great ideas that come from within the law will never get outside it unless lawyers have some measure of artistry in the use of words.
Lawyers are primarily men of reason, as artists are primarily men of imagination. If we had less of reason and more of imagination, we should write novels, not wills—dramatic plays, not mortgage indentures. Our uses of words would be vivid and colorful and compelling in their effects upon those who hear or read them.
To achieve effectiveness in the use of language, therefore, lawyers have a special need to cultivate the imagination. Reason must be supplemented if it is to be brought to bear with its fullest power. The time we can find to devote to the artistic triumphs of the imagination—the great pictures, symphonies, literature—is not wasted, even in the narrowest terms of professional self-improvement. It is thus that those faculties are stimulated through which we transmit the great and abiding messages of the law.
The law and lawyers deserve a high place, because they do generate and proclaim ideas which the world would indeed "be lost without." More than ever now is our profession under a duty to keep those ideas flowing, and in a form which persuades that these are the rules by which men live in just and orderly—but free—societies. There can be no nobler employment of language. John Mason Brown has said that the great writers in the law "like their blood-relations the great wordmen in literature, have lighted up the world for us by using language as a beacon". To keep that flame alive and burning brightly is surely a constant and urgent concern of every man of law.
