Legal Communication & Rhetoric: JALWD

Rhetoric, Referential Communication, and the Novice Writer

 

Barbara P. Blumenfeld*

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I. Introduction

Classical rhetoric is a useful and integral part of legal writing instruction at many law schools.1 It also forms the basis for much practice-related writing. Yet rhetoric arises from oral communications, while writing by its very definition does not have the same immediacy or ability to evaluate audience reaction. This essay, while recognizing the value of rhetoric, suggests that its use must be enhanced with a means of creating audience awareness in order to make complete its application to the teaching and practice of legal writing.

This essay begins with a very brief overview of the relationship of rhetoric to legal writing and how audience awareness is a key factor in both. That is followed by a suggestion of the novice legal writer’s2 knowledge and understanding of the writing process, especially the significance of audience. This overview leads to a definition of two distinct tasks that must be incorporated into the writing process: first, learning about and understanding specific audiences; second, learning how to implement writing that works for that audience.

Part III of this essay turns to the first task of the writer: audience awareness. It suggests that legal writers, like all writers, must incorporate interaction with audience into the writing process. This involves developing a working model of the audience as the writer writes. Performing this task implicates the writer’s creativity; it also leads to internal motivation in the writing process. A brief review of the creative process of legal writing is included, demonstrating that for legal writing to be complete it must include both deliberate as well as less-conscious thinking. The less conscious aspects include creating a detailed working image of a specific audience and thus are crucial to the writer’s first task of audience awareness.

The current focus of legal writing instruction and of most legal writing practitioners is more on the final tangible product than the less assessable skills involved in the first task. Part IV provides an overview of successful approaches to addressing the less definable but necessary audience referential skills that have been studied in other fields. A review of the most relevant of these leads to suggestions of how these techniques can be implemented by both teachers and practitioners with the hopeful result of creating better and more motivated legal writers.

II. Rhetoric, Legal Writing, and the Novice Legal Writer

Rhetoric is a useful tool in teaching, discussing, and implementing legal writing. Its underlying purpose—to persuade—allows direct translation of many of its techniques into the creation of a legal document. It is natural, then, that classical rhetoric forms a basis for much legal writing instruction3 as well as the writing of legal practitioners. Yet one thing that is not directly transferable from classical rhetoric is the actual method of communication: rhetoric is traditionally a form of oral communication. In written communication the audience is not as readily or immediately available to the writer, who must produce a final product without the benefit of audience feedback during the development of that product. Because classic rhetoric assumes a speaker with full audience awareness, its skills and techniques are designed to work for someone with that awareness. Thus, for rhetorical skills and techniques to be fully effective for the legal writer, that writer must also develop a full appreciation of the audience.

A. Rhetoric’s natural bond with legal writing

Rhetoric is the intersection of persuasion and language,4 so its use seems to couple naturally with legal writing.5 From its origin rhetoric was associated with persuasive discourse, its purpose to convince or persuade an audience to think or act in a particular way.6 Rhetoric defines types of arguments, as well as the means to persuade others to accept them. There are three distinct aspects of the rhetorical process that easily correspond to three key phases necessary to completion of a written legal document: discovery of information, arrangement of that information, and the style of its presentation.7 The legal writer follows this rhetorical process: First, the legal writer must discover and develop arguments, building them to create solid proofs based on such things as the classic deductive syllogism, analogical reasoning, etc. Then, with arguments in hand, the legal writer must arrange them, then present them. The arrangement of most legal documents follows a classical rhetorical structure,8 and incorporating rhetorical devices into one’s writing is a basic tool of persuasion.9 Thus, one can immediately grasp that a study of rhetoric might be useful to the study and practice of legal writing.10

In rhetorical communication, because its purpose is to persuade, the author of the message must consider the best manner of delivering the message so as to invoke the desired reaction from the audience.11 That is, rhetoric adds a contingency on audience reaction to the four elements present in all communication (message, sender, receiver, and medium).12 Logic is a necessary corollary of classical rhetoric,13 in part because persuasion requires logic and logic requires persuasion.14 But this rational appeal is only one of many available means of persuasion.15 Beyond requiring an understanding and use of classical logic,16 rhetorical communication includes considerations of emotional and ethical appeal.17 These go beyond the appeal to the audience’s reason and understanding to further signify the crucial nature of the relationship between author and audience. That is, “[t]o persuade an audience, a speaker needs to say the right thing to the right people in the right situation, at the right time, and with the right ethical conditions.”18

As rhetoric developed, it did so in the context of live oration to an audience; it was not until the Renaissance that its principles were applied on a large scale to written work.19 A live form of communication allows the speaker to receive immediate feedback about the effect the communication is having on the audience. This immediate feedback does not exist in the context of written communication. Whereas in oral communication, even with no knowledge or understanding of the audience, one will understand from observable responses whether an argument is effective,20 in written communication, one must have some idea of what might persuade an audience, so as to make judgments about the effectiveness of arguments without actual audience feedback.21 Hence, learning about audience in a way that will allow the writer to compensate for the missing element of a live audience is crucial to the effective use of rhetoric at all stages: discovery and development of arguments, arrangement of those arguments, as well as their presentation.22 To be successful in persuasion and to use rhetoric to its fullest extent, one must understand who it is that must be persuaded, what it is that will persuade a particular audience, and the rhetorical purpose of the communication.

B. The novice legal writer and referential communication skills

The above leads to the question of how much knowledge novice legal writers might have about the audiences for whom they are writing. Many novice legal writers are afflicted with what Joseph Williams refers to as “temporary aphasia,” a condition in which they cannot write as well as they once could because they are writing about matters they do not understand for readers who do.23 This assessment focuses on a lack of substantive subject-area knowledge, and aphasia generally refers to a lack of language abilities in the sense of an inability to produce or understand speech.24 Implied in Williams’ assessment, however, is a second area in which knowledge is lacking: understanding of the needs of the reader. Indeed, some researchers find that aphasia may include the referential ability of relating to the audience, as well as verbal–linguistic communication skills.25 That lack of knowledge of the audience must be addressed along with building knowledge about substance. More specifically, in actual writing instruction and practice, in addition to learning about formats, purposes and requirements of legal documents, legal writers must grasp the importance of fully understanding their audience. In addition, practitioners, especially new lawyers, must go beyond the book learning of law school to find ways of learning how the particular audience for whom they are writing might react to their written work.

The lack of understanding of the needs of the audience often results in novice writers writing for themselves (the only reader they know), or as if the reader will of course understand what is in their head (which they, as their own readers, do).26 The only other audience students may understand is the professor; the general perception a student has of a teacher is that the teacher already knows and has an answer.27 Thus, rather than explain and develop an answer of one’s own, the student may simply write as if the answer is already known. This approach of writing as if the audience knows the answer may continue beyond law school and affect the writing of the practitioner. As practitioners gain more experience, they begin to acquire a data base about specific audiences. Yet, even the experienced practitioner can be reminded to consciously take this knowledge into account when creating a document.

An essential skill in learning to communicate is what is known as “referential communication”: writers must learn to anticipate the needs of their audience.28 This is not a skill that can be acquired simply by being told about the audience any more than one can learn to write simply by being told about writing. Rather, a writer must in some way experience or empathize with the needs of the audience in order to satisfy those needs.29 That is, to be effective, the writer must not only understand the basics of writing a sentence and its substance, the writer must also be able to think like the reader, anticipating both the reader’s needs and the problems that the reader will have with the written work.30 Just as one practices writing a document (outlining, drafting, revising) one must also practice understanding the needs of the audience.31

Thus, legal writers must understand not only that their communication is about presenting a solution to a problem with more than one answer—and for which there is not necessarily a “right” answer—they must also understand how the reader is likely to react to the words upon the page. Teaching this understanding is the true challenge of legal writing instruction; grasping it is the challenge for every writing practitioner. That is, writers cannot be limited to considerations of style and format and substance. They cannot be limited to understanding how to find relevant law and reason through the connection of that law to a current problem. Writing must include, but cannot be limited to, the techniques for building strong arguments found in classical logic.32 All of these skills are a part of rhetoric, but the overarching element—the audience—must not be forgotten. All these skills and their implementation must be guided by the demands and needs of a specific audience that changes with each rhetorical situation and each writing task.

The challenge then is for the writer to understand and to think like that audience when written communication, unlike oral communication, does not give the writer the opportunity to see the audience’s reaction. Unlike the oral communicator, the writer cannot make immediate alteration to the work in response to the audience.33 The author’s final product must have been developed in a way that responded to the audience throughout the process so that when the completed product is actually viewed by the audience, the reaction will be as anticipated. Incorporating audience reaction into the process more accurately mirrors classical, oral based rhetoric and allows for a fuller understanding of how, when, and where to use its techniques.

III. The First Key Task of the Writer: Audience Awareness

Anticipating the audience suggests a division of writing into two key tasks: (1) learning about and understanding the audience and (2) implementing writing that works for that audience. It is the second of these tasks that is often the focus of legal writing in all its complexity. Beginning in law school, students will be taught the many tools and skills necessary to produce the type of document called for by a generic audience (e.g., a generic intermediate appellate judge, a generic supervising attorney). Instruction will focus on the rhetorical skills of discovery, organization, and presentation of arguments. Discussion of the audience is often folded into instruction about creating the document itself. This focus on product is likely to carry into practice. While an effective product is the ultimate goal, ignoring the key component of audience can be as detrimental to that product as failing to fully research an issue or failing to be grammatically accurate.

A. Conceiving the audience

Defining an audience is not the same as placing oneself in the shoes of that audience.34 Here is where rhetoric alone does not provide a solution. Whereas it touts the importance of audience, “at its foundation [rhetoric is] a model of speech.”35 The elements of rhetoric (discovery and development of arguments, organization and arrangement of those arguments, and finally presentation and style), while all crucial to a final persuasive product, alone are not enough. Nor is it enough to understand a variety of generic rhetorical purposes and audiences. It is one thing to know that a judge will generally want to understand why and how the law mandates the decision the author is seeking. It is quite another for the author herself to have a feeling for the needs of the particular judge–reader and what will most likely invoke a desired response in that particular reader.

Here, the legal writer is not that different from any other writer who must take the needs of audience into consideration. Carol Berkenkotter designed a study to investigate whether experienced writers with formal training in rhetoric thought about their audiences more actively than writers without such training.36 As part of that study she described the processes that writers engage in to attain audience awareness. She found that in informational and persuasive writings, experienced writers generated audience-related goals that led them to a narrative plan.37 Writers from fields other than composition were more product oriented,38 Berkenkotter found, but she described two significant patterns of thinking about audience that writers from all disciplines all shared. First, all formed a “rich representation of audience” that played a significant role in the development of the writer’s goals. Second, they created individual rhetorical scenarios in which they interacted with that audience representation. 39 She concluded that professional writers “automatically internalize their audiences: as they write, they ask themselves the questions that their readers might be expected to ask.40

Law students and lawyers must similarly develop the skill of thinking like a writer, specifically like a legal writer who incorporates audience feedback into all stages of the rhetorical process. The writer must understand the reader enough so as to be able to think like the reader when reflecting on ideas and arguments, and when connecting them into a cohesive and effective whole. The writer must be able to act as the audience, raising questions and problems with the writing self and resolving them effectively before the document is submitted to the actual audience. Thinking like a writer requires making choices based, first, on what the writer wants to say and accomplish combined with an understanding of the audience and, second, what that audience needs to hear (read).

The writer must be able to carry on a dialog between herself and the specific audience.41 Because this cannot be done with written work in the way it is with oral communication, the writer must have a sufficient understanding of the specific audience in order to have that dialog throughout the writing process. This is very different from being told about audiences. The latter is more directive and external; in a teaching situation, how well the provided information is learned can be assessed.42 But understanding the mind and needs of a specific audience so as to identify with that audience sufficiently to respond to the writing as one other than the writer would is something that is less assessable, and less capable of being taught. It is a more intuitive endeavor that comes from having the general, assessable knowledge, but then takes that knowledge to a less directive and more creative level. This may seem at odds with the assessable and product-oriented nature of law school and law practice, but a better ability with a more intuitive referential communication can in the end result in a better final and assessable product.

This dovetails with other less-measurable and more-intuitive aspects of the writing process that involve its creative features. Thus, a short diversion into the creative process leading to a final, tangible product is useful here.

B. The creative process of legal writing

Like all creative processes, legal writing involves four stages of thought and action: preparation, incubation, illumination, and verification.43 The sequence leads to a novel and adaptive product.44 The entire process involves purposeful analysis, generation of ideas, and critical evaluation; it is a balance of imagination and analysis.45

The process begins deliberatively when one receives an assignment and determines facts, audience, and purpose, and begins to research and define issues. The writer also acts purposefully after a document is drafted, during the revising and editing stages. These parts of the process occur at highly aware, conscious states in which the mental processing takes a direct course from A to B, a course for which legal writing has clear guidelines (e.g., IRAC). However, between the cognitive knowledge gained in the first phase and the writing-and-revising stage in which the information gathered is substantiated into a final document are two less definable but essential steps. Both take a less structured, less direct path and involve more-spontaneous mental processing.

The first step, following the purposeful acquisition of relevant knowledge, is a period of incubation during which the mind is left to begin solving a problem, connecting the acquired information, without conscious direction, to a precise course or solution.46 Following this incubation is a phase of illumination when the incubated material percolates to the surface: ideas coalesce and the writer may again consciously and with direction choose arguments and approaches or, with document in hand, begin choosing words, phrasing, etc. The material that must be connected during these less directive phases includes one’s inner understanding of the audience for whom the document is being created.

These less directive processes, though at one time thought of as unconscious and hence outside the individual’s control, are now seen as being within the control of the thinker.47 It is at this time—between the initial and deliberative preparation and the final substantiation of the project—that the writer can step into the shoes of the audience and understand the needs of the audience while developing and connecting information. Alhough this process is not directive in the sense ofhaving defined steps to follow for any given project, the writer can control the process, ensuring that the steps are not omitted. The writer must combine her understanding of audience with her own judgment and thinking, carrying on a dialog between the writer’s presentation and the audience’s understanding. This process needs to occur before the writer begins the conventional task of organizing and placing words on paper. In this, the first phase of rhetoric in which the argument is developed, it is crucial that the audience not be forgotten.

Encouraging the less definable aspects of the writing process, acknowledging that this is indeed a creative process, has the potential to better motivate and fulfill both students and practitioners by allowing them to have more self-determination and fulfillment in the creation of a final document. Studies show that “intrinsic motivation” can be a strong driving force.48 Human beings have an “inherent tendency to seek out novelty and challenges, to extend and exercise their capacities, to explore, and to learn.”49 This drive is often stronger than are extrinsic rewards or punishments. This is especially true in creative endeavors.50

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* ©Director of Legal Writing, University of New Mexico School of Law; Active Member, New Mexico Bar; Member Emeritus, Michigan Bar.

1 Indeed, there is a movement to heavily integrate rhetoric as the primary focus and structure of legal writing courses. See e.g. Kristen Konrad Robbins–Tiscione, A Call to Combine Rhetorical Theory and Practice in the Legal Writing Classroom, 50 Washburn L.J. 319, 319–340 (2011); Linda L. Berger, Linda H. Edwards & Terrill Pollman, The Past, Presence, and Future of Legal Writing Scholarship: Rhetoric, Voice, and Community, 16 Leg. Writing 521, 521–563 (2010). Further indicative is of this shift is the name of the scholarly journal of the Association of Legal Writing Directors, “Legal Communication and Rhetoric.”

2 The use of the term “novice legal writer” throughout this document refers to someone without extensive experience in compiling practice-related documents. Such writers are generally law students and new lawyers, or lawyers new to writing a particular type of practice related document. This author further acknowledges that there is no “typical” novice writer; however, the discussion suggests common understandings with the acknowledgment that there are exceptions and contradictions to what is described.

3 See Robbins–Tiscione, supra n. 1; Berger, Edwards & Pollman, supra n. 1.

4 See William M. Keith & Christian O. Lundber, The Essential Guide to Rhetoric 3 (Bedford/St. Martin’s 2008).

5 Both predictive and persuasive documents involve the use of reasoning, analysis, and other rhetorical skills to persuade a particular audience that the author’s conclusions are valid. The ABA’s sourcebook on legal writing includes reasoning and analysis instruction, and its integration with writing, as content of a first–year legal writing course. See Sourcebook on Legal Writing Programs 13–48 (Eric B. Easton et al. eds., 2d ed., ABA 2006).

6 Edward P.J. Corbett & Robert J. Connors, Classical Rhetoric for the Modern Student 16 (4th ed., Oxford U. Press 1999).

7 See generally id.

8 The classic rhetorical outline proceeds as follows: the Exordium (introduction that prepares the audience); the Narration (backstory or statement of facts); the Partition (Points that will be addressed); the Confirmatio (the supporting arguments); the Refutatio (refutation used when necessary and if not layered into confirming arguments); and the Preoratio (conclusion). See Keith & Lundber, supra n. 4, at 52–53; see also Corbett & Connors, supra n. 6, at 259–292. One can see how this corresponds to not only the basic format of a memorandum or brief, but also to such things as opinion letters and even to scholarly writing. This is also the classic format for judicial opinions. See Ruggero Aldisert, Opinion Writing 77-78 (2d ed., AuthorHouse 2009).

9 These, known as “schemes” and “tropes,” are what we most often think of when hearing the term rhetoric. They include, e.g., forms of sentence structure, organization and juxtaposition of words and phrases, and a variety of figures of speech. See generally Corbett & Connors, supra n. 6, at 361.

10 This pertains not just to practice-related legal writing, where one typically focuses on writing an “argument.” It also relates to other forms of legal writing, including predictive writing and scholarly writing. For example, in writing a practice–related predictive piece, one is arguing for a particular position as the most likely predictive outcome; thus, one must determine arguments to support that position, arrange them, and convey them. Similarly, in a scholarly piece, one generally has a thesis and must develop, arrange, and convey arguments supportive of that thesis.

11 See Keith & Lundber, supra n. 5 at 12. Thus, the practitioner is, for example, focused on invoking a decision favorable to the client.

12 Id. at 11–12.

13 Corbett & Connors, supra n. 6 at 16; Keith & Lundber, supra n. 5 at 6.

14 Keith & Lundber, supra n. 4 at 6.

15 Id. at 16.

16 Corbett & Connors, supra n. 6 at 18.

17 For detailed discussion of these three modes of persuasion, see id. at 31–84.

18 These are incorporated into Aristotle’s classical rhetorical triangle, which names three methods of persuasion: logos (logic), ethos (credibility), and pathos (emotional appeal). Keith & Lundber, supra n. 4 at 11; see also John D. Ramage & John C. Bean, Writing Arguments: A Rhetoric with Readings 152 (4th ed., Allyn and Bacon 1998), in which the authors analogize the types of persuasion to different filters used on theater spotlights: Thus, if you switch on a pathos lamp (possibly through using more concrete language or vivid examples), the resulting image will engage the audience’s sympathy and emotions more deeply. If you overlay an ethos filter (perhaps by adopting a different tone toward your audience), the projected image of the writer as a person will be subtly altered. If you switch on a logos lamp (by adding, say, more data for evidence), you will draw the reader’s attention to the logical appeal of the argument. Depending on how you modulate the lamps and filters, you shape and color your readers’ perception of the issue.

19 Corbett & Connors, supra n. 6 at 15–16.

20 See e.g. Colo. St. U., Writing Guide: Audience, http://writing.colostate.edu/guides/processes/audmod (accessed Mar. 9, 2012) (“When we talk to someone face–to–face, we know just who we are talking to. We automatically adjust our speech to be sure we are communicating our message.”).

21 “[W]riters do not get immediate feedback as speakers get from listeners (the eye contact or lack thereof, the body language, the questions, etc.). Writing is harder ... than speaking. . . writers work ‘blind.’” Ind. U. Writing Ctr., W131 Goal 1: Think like a Writer, comment 8, http://www.iupui.edu/~uwc/pdf/Think%20Like%20A%20Writer.pdf (accessed Mar. 9, 2012).

22 See Keith & Lundber, supra n. 4 at 11.

23 Joseph M. Williams, Style: Ten Lessons in Clarity and Grace 8–9 (4th ed., Pearson Educ. 1994).

24 See Dictionary.com, Aphasia, http://dictionary.reference.com/browse/aphasia (accessed Mar. 9, 2012).

25 Kathryn L. Garrett & Cynthia Cress, PowerPoint, Measuring Referential Communication Skills in Adults with Aphasia: Research Questions and Tool Development (ASHA 2002) (available at http://www.cehs.unl.edu/barkley/ present/ cress/measure.pdf ). One hypothesis of the authors is that “[i]ndividuals with severe aphasia may not be able to produce propositional, verbal-symbolic communication (speech or non-speech modalities) until basic referential skills emerge (either naturally or with facilitation).” Id.

26 Hence a frequent complaint of legal writing teachers, as well as those who employ novice legal writers, is that the authors do not explain their thinking sufficiently for the reader.

27 See e.g. Kenneth A. Bruffee, Collaborative Learning: Higher Education, Interdependence, and the Authority of Knowledge 67 (Johns Hopkins U. Press 1993). Bruffee notes that typical teaching in college and beyond promotes the authority of the teacher who, through lecture and recitation, provides information and answers to students. Id.

28 Noting that we change what we say in spoken communication because we know our audience, Colorado State University’s writing guide states, Interestingly, many writers don’t make the same adjustments when they write to different audiences, usually because they don’t take the time to think about who will be reading what they write. But to be sure that we communicate clearly in writing, we need to adjust our message—how we say it and what information we include—by recognizing that different readers can best understand different messages. Colo. St. U., Developing Audience Awareness, http://writing.colostate.edu/guides/processes/audmod/list3.cfm (accessed Mar. 9, 2012).

29 “You need to know your audience before you start writing.” Colo. St. U., Audience Definition, http://writing.colostate.edu/ guides/processes/audmod/pop2a.cfm (accessed Mar. 9, 2012).

30 See generally Carol Berkenkotter, Understanding a Writer’s Awareness of Audience, 32 College Composition & Commun. 388, 388–99 n. 4 (1981); see also Ind. U. Writing Ctr., W131 Goal 1: Think like a Writer, comment 3, http://www.iupui.edu/ ~uwc/pdf/Think%20Like%20A%20Writer.pdf, (accessed Mar. 9, 2012) (“To think like a writer is to think like your reader—to put yourself in the reader’s shoes so that you can write what that reader needs to read.”).

31 Experience is a crucial part of learning. See James E. Zull, The Art of Changing the Brain 13 (Stylus Publg. 2002). Because experience involves the senses, it amplifies the learning experience. It is thus crucial to give students opportunities to have concrete experiences to enhance the depth of their learning. Id. at 145–48.

32 These include such things as inductive and analogical reasoning, creation of syllogism, and understanding and creating complex definitional proofs.

33 That response of audience is useful to the writing process can be seen when students present an oral argument before finalizing a written brief.

34 See generally Zull, supra n. 31. Also notable is that advertising and marketing enterprises, groups whose purpose is to persuade, understand this well as they contemplate target audiences with focus groups and similar research techniques.

35 Ind. U. Writing Ctr., W131 Goal 1: Think like a Writer, comment 9, http://www.iupui.edu/~uwc/pdf/Think %20 Like%20A%20Writer.pdf (accessed Mar. 9, 2012). The author of this comment continues, “Readers don’t have an audience in the same way that speakers do. . . . The writer cannot watch the reactions of the reader to see if he or she is ‘getting it.’ A writer has to know something of what makes writing work for both reader and writer and implement those skills and ideas.” Id.

36 See Berkenkotter, supra n. 30.

37 Id. at 394.

38 Id. at 395.

39 Id.

40 Id. at 396.

41 But see Donald M. Murray, Teaching the Other Self: The Writer’s First Reader, 33 College Composition & Commun. 140, 140 n. 2 (1980) (available at http://www.jstor.org/stable/357621). Murray discusses the writer’s conversation with and focus on an “other self,” as opposed to a separate audience during the writing process. Id. The conversation is described as “between two workmen muttering to each other at the work bench” in which the self speaks and “the other self-listens and responds.” Id. However, this description of a conversation between two aspects of one’s own mind could just as easily be describing a conversation between a writer and an other audience whom the writer well understands, has constructed, and stands in the shoes of during the writing process. Id.

42 For example, we can ask a test question about the difference between the perspective of a trial judge and an appellate judge. That a student has or has not learned that difference is determined and quantified. But less measurable is whether the student has an internal understanding of the needs of that audience and a particular audience’s likely reaction to the work of the student.

43 Tanja Janssen & Gert Rijilaarsdam, Observational Learning in Cultural and Arts Education; Effects on Students’ Creative Processes, Products and Motivation in Creative Writing and Visual Arts 7, http://home.medewerker.uva.nl/ t.groenendijk/bestanden/Research%20plan%20PhD%20Observerend%20leren%20bij%20CKV.pdf (May 29, 2006); see also Paul E. Plsek, Working Paper: Models for the Creative Process, http://www.directedcreativity.com/pages/ WPModels.html (accessed Mar. 9, 2012).

44 A common definition of creative is “the ability to combine novelty and usefulness in a particular social context.” Patricia Cohen, Charting Creativity: Signposts of a Hazy Territory, N.Y. Times C1 (May 7, 2010) (available at http:// www.nytimes.com/2010/05/08/books/08creative.html). A comparison of the creation of a legal document with this definition supports the view of legal writing as a creative process: Each document or argument a lawyer creates is unique (novel) because each case is unique, and the document must be useful for its particular rhetorical situation (e.g., convincing a judge, persuading a colleague, etc.). Thus, the legal writer must combine novelty and usefulness in a particular context. See Barbara Blumenfeld, Legal Writing is a Creative Endeavor, 6 N.M. Law. 8, 8 n. 3 (2011).

45 Paul E. Plsek, Working Paper: Models for the Creative Process, http://www.directedcreativity.com/pages/WPModels.html (accessed Mar. 9, 2012). Plsek notes that all models of the creative process include the common themes of purposeful analysis, imaginative idea generation and critical evaluation. Id.

46 See Paul Williams, Am. Inst. for Innovation Excellence, Innovation Blogroll, What is Incubation? http://blog.thinkforachange. com/2008/04/29/what–is–incubation.aspx (Apr. 29, 2008).

47 Plsek, supra n. 45.

48 See Daniel H. Pink, Drive 3 (Riverhead Bks. 2009).

49 Id. at 8 (quoting Edward Deci).

50 See generally Pink, supra n. 48. This is the premise of the book. In a study of artists, researchers found that commissioned works were significantly less creative than noncommissioned ones, though both were similar in technical quality; another study of artists found that outside rewards actually hindered success. Id. at 42–43.