April 06, 2021 Feature

How to Be a Writer

Melanie Bragg
Learn to improve your legal writing, become a full-time writer, or simply write because you love it while you keep your day job.

Learn to improve your legal writing, become a full-time writer, or simply write because you love it while you keep your day job.

PCH-Vector/iStock via Getty Images Plus

In this “How To” issue of GPSolo magazine, an article for lawyers explaining how to be a writer might seem unnecessary. After all, writing is what most lawyers do so much of in the course of our daily lives. Most of us went to law school because we were good at expressing ourselves, good at arguing, and good at research and writing. Our law careers are the outgrowth of many of our natural skills, honed and refined during the three years of law school. Often, after the rigorous analytical training we go through, it takes time to get our creativity back and for us to form new creative goals.

In this article I talk to three successful lawyers who have made writing an integral part of their careers and lives. In their stories you will find examples of “how to” be a writer. Let me say up front: Everyone needs to follow their own path. There is no one-size-fits-all approach to becoming a writer. If you have a dream, an idea, or an inspiration, follow it. As you will see from the profiles that follow, it is worth it.

First, we talk to Judge Kem Thompson Frost, who just retired as chief justice of the 14th Court of Appeals in Houston, Texas. Her law review article “Unclaimed Treasure: Greater Rule-of-Law Benefits for the Taking in Texas” (Houston Law Review, Fall 2020, 58:1; https://tinyurl.com/4t4nbc6e) just won the Texas Bar Foundation’s Outstanding Law Review Article Award, and she will be honored at the upcoming State Bar of Texas annual meeting. She gives us tips on legal writing for a living.

William “Bill” Bernhardt (https://williambernhardt.com) of Oklahoma has published more than 50 books and has long since left the practice of law for a full-time career in writing. He gives us tips on how to turn writing into a full-time gig after a successful stint as a litigator in a big firm in Oklahoma.

Talmage Boston (https://talmageboston.com), who is famous for his books on baseball and presidential history, strikes the happy medium between being a full-time litigator in a big Dallas firm and pursuing his successful writing career.

Of these three writers, right now I am most in line with Talmage; I practice as a solo attorney in Houston, and I have three books and numerous monthly columns and feature articles (such as this one) under my belt. The one thing we all have in common is our love of writing and the law.

Now, let’s dig into the “how to” of writing for lawyers.

Lawyer as Legal Writer

Judge Kem Thompson Frost wanted to be a lawyer for the longest time. She participated in a high school vocational guidance program, and she was really drawn to law as a profession. She loved to write, and after law school she worked as a litigator in two big law firms where she became a shareholder, practicing business litigation. She found herself doing a lot of legal writing—briefs and summary judgment motions. In 1999 she was appointed by the governor to serve as a justice on the 14th Court of Appeals in Houston (where I am happy to say I got to serve as a briefing attorney for one year after law school). She was chief justice of the court from September 2013 until her retirement in December 2020. In her nearly 22 years on the bench, she authored thousands of opinions.

Midway through her judicial career, she took on the wonderful and challenging experience of joining the inaugural class of Duke Law School’s Master of Judicial Studies Program. It was a two-year LLM program where she conducted empirical studies analyzing judicial decision-making. She wrote a thesis that later turned into a law review article, “Predictability in the Law, Prized Yet Not Promoted: A Study in Judicial Priorities” (Baylor Law Review, Winter 2015, 67:1; https://tinyurl.com/48nfbx8c). She was blessed to have Federal Judge Lee Rosenthal serve as her thesis advisor, suggesting ways she could pare down the huge manuscript. It’s easy to get into the weeds when it comes to analyzing research data. Judge Frost emphasizes, “Editing is a key part of the writing process.”

When I asked her how important good writing is to a judge, she said that it is essential that the litigants communicate effectively with the court in their briefs. “As members of the legal profession, our power rests in our ability to express points plainly and succinctly.” In appellate courts, the judges are not the only ones reading the briefs. The judges have a chambers team of good researchers and writers, and it makes all the readers’ jobs much more pleasant when the writers express themselves “clearly and concisely.”

Judge Frost has authored other law review articles. The one that recently won the Texas Bar Foundation’s Outstanding Law Review Article award includes an analysis of splits of authority in the two courts of appeals in Houston and the unusual court structure that makes the conflicts problematic. She has several new writing projects that she is working on now.

One of Judge Frost’s main tips to aspiring writers is: “Read good writing!” She loves Justice Antonin Scalia’s opinions. And she says that, in the drafting process, it is “good to write some and then put it aside for a little while—a day, a week—and then come back to it with fresh eyes.”

Judge Frost’s advice to young lawyers who want to excel in their legal writing is to “identify people in your law firm or legal community who write articles and express an interest in helping them. Try to become part of a writing team.” She suggests checking out the CLE circuit on the local and state level and getting involved. Judge Frost says, “If you offer to help a prominent CLE speaker in your jurisdiction and get that opportunity, you will hone and develop your writing skills, and, in time, you will be writing and presenting your own CLE programs.”

Lawyer as Full-Time Author

William “Bill” Bernhardt says that “writing was always my first love.” I relate to him when he tells me that he knew by the time he was seven years old that he wanted to be a writer someday. He was the kid who loved the school library, loved being in the bookstore, and loved reading anything he could get his hands on. Bill tells me that back then, there was not much in the way of useful information about how to become a writer. He took any writing class he could find, but there was very little assistance by way of suggestions or encouragement from any of his undergraduate professors.

He says he ended up going to law school because law “seemed like something I could do.” He laughs when he says, “I didn’t have to get sweaty outside to become a lawyer.” He managed to get into a highly rated law school, and then he landed a good job in a big Tulsa, Oklahoma, law firm where he worked in the litigation department. Yet, he still found time to write. And that is Bill’s number-one recommendation to lawyers who want to pursue a career in writing: “You must find time to write. Make an appointment with yourself and keep it.”

After about four years with the firm, he found an agent who got him a book deal with Random House, and his first book, Primary Justice, came out in 1991. It sold half a million copies. The publisher wanted a series, and the “Ben Kincaid” books began. There are 19 of them now.

I asked him how long it took him to give up his day job, and he said he did not “immediately quit.” Being a realist, Bill knew that one “hit” book did not make for a monetarily secure long-term future as a writer. Plus, it was the same year his first child was born. He was an associate, then made partner, but after ten years and six Ben Kincaid books, Bill let the law go. It wasn’t that he disliked law; it was just that he wanted to spend more time on his first love: writing. He does miss the friends in the office and the social aspect of law because, as one would guess, being a writer is a solitary activity—just you and your computer.

Bill never forgot his early days when he didn’t have a clue how to start out as a writer. He knew it would be helpful for writers to learn from actual professionals. He wanted to share what he had learned about writing and offer more resources to new writers than were available when he was starting out. He created Red Sneaker Writers, a brand designed to unite his small group writing retreats, the Red Sneaker books, his podcast, and mentoring. In 2006 Bill began his first writers’ conference: WriterCon (https://www.writercon.org). He knew his instructors needed a book to teach from, and he started the Red Sneakers book series with one on novel structure. He and I agree that writing is much easier when you have a plan and have an outline of your book before you begin. Yes, characters can spring onto the scene, but in order to create a well-formed and creatively sustainable book, you must have structure.

When I asked him about the changes in the publishing world since he began, he said, “In the 90s there was only one way to sell a book: You had to have a contract with a publishing house, and the book was sold in bookstores.” The dramatic change in the publishing market since has benefited the writer. He says, “Because you don’t need a large publisher to sell books online, small publishers and self-publishing have become viable, and that option allows authors to retain a larger share of the profits.”

Bill is always looking for new writers and interesting book series. He is excited about the options available to new writers. Now with 54 books out and his own publishing company, Bernhardt Books, and a successful writing career under his belt, he offers this advice to young lawyers who want to write: “Find time to write. Treat it like a job. Get up early in the morning and write a few hours.”

Lawyer as Lawyer/Writer

Talmage Boston is a business litigator in Dallas, Texas. He grew up knowing he wanted to be a lawyer because, as a young boy, he was enamored by reading about Abraham Lincoln and Atticus Finch, who righted wrongs in the courtroom with their advocacy skills. Because he enjoyed public speaking, he joined the debate team at his high school in Westport, Connecticut, and excelled to the point that he became the number-one-ranked debater in his high school and then went on to become the number-one-ranked debater in the state.

Talmage attended the University of Texas at Austin for college, and there he became involved in student politics, a different kind of advocacy than debating. After college, at the University of Texas Law School, he participated in mock trial and moot court competitions as a member of the Board of Advocates. After graduating from law school in 1978, he joined the Dallas firm of Shank Irwin, then practiced with Payne & Vendig and Winstead before joining his current firm, Shackleford, Bowen, McKinley & Norton, LLP. During his business litigation career, the era of the “vanishing trial” began and still continues. Talmage has found that his business clients typically press him hard to settle cases; thus, he isn’t getting to try as many as he would like.

Throughout his life, Talmage has always loved baseball, and after practicing law for a decade, he became increasingly passionate about his interest in the game and its history. In 1989, he went to Cooperstown, New York, for the National Baseball Hall of Fame Induction ceremony for his all-time favorite player, Carl Yastrzemski, of the Boston Red Sox. On the plane back to Dallas, he started writing about baseball history in a letter to his friend, American League President Bobby Brown, and found his imagination taking off as he applied pen to paper.

Talmage’s writing career had begun! Within a year, he had published a piece on Jackie Robinson for a baseball creative writing publication. He wrote a few more pieces for them, got good feedback, and, soon afterward, he had an idea for a baseball history book devoted to everything that happened in 1939. He entered into a book contract with Summit Publishing Company, and, upon its release in November 1994, his book 1939: Baseball’s Pivotal Year was the number-one best seller in the Dallas–Fort Worth market. Summit eventually went out of business. In 2005, he found a new publisher, Bright Sky Press, which agreed to republish his book as 1939: Baseball’s Tipping Point; again, it sold well, thanks in part to the foreword written by novelist (and onetime lawyer) John Grisham.

In 2009, Talmage’s second book, Baseball and the Baby Boomer, was published by Bright Sky. This book contained postwar baseball history, Talmage’s commentary on events in baseball, and, as memoir, some of his personal experiences in the game.

Talmage served on the State Bar of Texas Board of Directors from 2008 to 2011, and he learned about Texas Bar Books, which publishes CLE books but sometimes also legal inspirational books. In 2012 Texas Bar Books published Talmage’s third book, titled Raising the Bar: The Crucial Role of the Lawyer in Society. The foreword was written by Dick Thornburgh, who served as governor of Pennsylvania and as U.S. attorney general under Presidents Ronald Reagan and George H.W. Bush. His fourth book was published in 2016 by Bright Sky Press; Cross-Examining History: A Lawyer Gets Answers from the Experts about Our Presidents is about presidential history, Talmage’s other lifetime passion. The book contains a foreword written by documentary filmmaker Ken Burns.

As a result of his writing career, Talmage has spoken at presidential libraries, done many on-stage interviews with best-selling authors and prominent leaders, and now has a successful podcast series. To him, practicing law is his vocation and how he makes the necessary income to support himself and his family. Writing, though, is a serious avocation, something he does to feed his heart and soul. He admits that his writing avocation has helped him in his law career because it definitely gets his name out there, and clients and judges seem to be impressed. He’s now working on a new book, and when it comes out, he says it will be by “far the most important book I’ve ever written.”

Through their mutual interest in baseball, Talmage has formed a friendship with John Grisham, whom he has interviewed on his podcast. When I asked him what he would say to young writers starting out, he said what John told him: “Don’t quit your day job. Write in your spare time, but above all, write!” Talmage says to write at least a page a day because he knows that you must be disciplined and productive to achieve your writing goals. And we all know that once you get that one page in, you don’t want to stop!

Combining Law and Writing: A Blissful Combination

All this advice on how to write should make sense to any lawyer because we did not get our law degrees without sufficient self-discipline and rigorous training. As for me, my writing career has developed through the years.

Being active in the American Bar Association (ABA), I found out about the Book Publications Board of the Solo, Small Firm & General Practice Division (GPSolo), and, when I became a board member, I began to learn about publishing, proposals, and everything that goes into getting a book published. I served on that board for many years and chaired it a few years with 40 published authors under my care. My first ABA book, HIPPA for the General Practitioner, was published in 2009. In the meantime, I attended writing conferences such as Author 101 with Rick Frishman, the author of Guerrilla Marketing for Writers.

My first Author 101 writing conference in 2010 was overwhelming. There was so much to think about and do. Authors not only have to write, but they also have to be PR people, speakers, and marketers. At that time, the whole publishing landscape was changing. I set a goal for myself to become the Author 101 “Success Story”—the author who gets picked each year to come up and give a talk before a big group—and within two years I achieved that goal and landed my publishing contract for my first Alex Stockton legal thriller, Crosstown Park, which was published in 2013 by Koehler Books.

Publishing was and still is changing, both in the market and at the ABA. My third book was published in 2019 by the American Bar Association Flagship Division. Defining Moments: Insights into the Lawyer’s Soul is a compilation of interviews with legal giants who share their life experiences. In addition, since 2013 I have written a bimonthly “Defining Moments” column and a bimonthly “Mindfulness 101” column in the GPSolo eReport.

Life is never dull when you are a practicing attorney and an author. Time management is essential, and even if it seems like it is taking a long time to achieve your goals, you never want to give up.

Writing is a marathon, not a jog. Persistence wins the race. Whatever your goal—to be a legal writer like Judge Frost, a full-time writer like Bill, or someone who, like Talmage and me, writes because we love it while we still practice law—the common wisdom I can give you in line with what my peers in this article have said is to:

  • Set your goals. What do you want to write?
  • Learn your craft. Whatever style of writing you choose has a craft. Take writing courses, learn structure and storytelling, join writers’ groups, find a good writing teacher or mentor, attend conferences, and associate with other writers.
  • Develop a habit of writing daily and treat it like a job. Wishing you were a writer does not make it happen. The only thing that makes it happen is “butt in chair.” Period.

It was an honor to interview these three incredible legal writers. I relate to each one of them in their writing journeys. And I admire their tenacity and spirit to figure out what they want, to go after it, to get it done, and then to share with others who want to follow in their footsteps. We are all busy with many other competing projects, but if you really want to be a writer, you can. Good luck in your writing career.  Please feel free to contact me at melanie@bragglawpc.com with any questions you may have about writing as a lawyer.

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Melanie Bragg (https://www.melaniebragg.com) is a former Chair of the GPSolo Division and is currently a GPSolo Division Delegate to the ABA House of Delegates. Her firm, Bragg Law PC, is a general civil firm in Houston, Texas, specializing in probate, real estate, and small business representation. She is the author of three books, two of them published by the ABA, and is a frequent CLE, motivational, and mindfulness speaker.