Ernie The Attorney

Legal writing seminar in New Orleans

On Friday, March 20, 2009 there will be a seminar on effective legal writing at the Sheraton Hotel in 500 Canal Street, in New Orleans. My friend Ray Ward will be presenting, along with Mike Fontham and several other local lawyers. The seminar is sponsored by the Louisiana State Bar Association. For more information about the seminar call 504-619-0102, or click here.

If you want to improve your legal writing (pleadings, contracts etc.), now's your chance.  The fee for the seminar is $250 now, but will go up to $315 if you wait til the last minute to sign up.

Good writing isn't always what we imagine

Bryan Garner, the famed legal writing guru, asked people at the ABA Franchise meeting in Austin last month if they were willing to try something for 6 months that would dramatically improve their writing. A chorus of grudging yays echoed forth. The reluctance stemmed from the assumption that he was about to suggest some sort of daily writing regimen.

"Subscribe to The Economist," was one of his suggestions. Fortunately, I'd already completed this assignment. Before I read The Economist I'd assumed that it was a highbrow financial magazine filled with dense prose and weighty proclamations. Once again, my fast assumptions proved to be flat wrong.

The Economist is one of the most interesting magazines I've ever come across. First, all of the articles are written anonymously. And yet they all have the same tone and style—that of a well informed person who isn't afraid to make (clever) off the cuff comments. But, of course, none of the comments are 'off the cuff.' All of the language is heavily edited.

And therein lies the rub. The writing style conveys a breezy manner, but the arguments are well-thought out. Oh, and that's another difference: the writers don't shy away from taking strong positions. They make arguments.

But, aside from the arguments, it's really the style of writing that deserves careful attention. The jaunty manner is evident in the recent article about Obama's victory and transition to power entitled 'Change.gov.' Read the whole article to get a sense of this, but here are examples of sentences that I doubt you'd ever see in a mainstream U.S. publication:

"There are also plenty of fissures in Obamaworld."

And in discussing the laborious process of confirming the 7,000 administration appointees, this sentence:

"Nominees endure an absurdly long nomination process, filling in 60 pages of forms and submitting themselves to extensive FBI vetting, during which plods from the bureau inquire about their taste for intoxicants and the legal status of their nannies."

Words like 'Obamaworld' and 'plods' are too colorful for journals like Time or Newsweek, which seem to believe that credibility is created through the illusion of neutrality. The Economist shows us that it's okay to argue points and to use everyday words. Well, it shows us that only if we read it.

So does Mr. Garner suggest that we look only to foreign publications for examples of good writing? No, he also suggests that we subscribe to the New Yorker.

Bryan Garner on legal writing

I've always admired Bryan Garner, the great crusader for clarity in legal writing. I've often recommended that people attend his seminars. Invariably, those to whom I made this recommendation returned to thank me profusely. Surprisingly, I had never attended any of his seminars.

Today, Mr. Garner was the opening speaker at the ABA Forum on Franchising in Austin, Texas. To say I had great expectations for the speech would be an understatement. Amazingly, he far exceeded my high expectations. He is not only a great instructor of writing, but also an amazing speaker—perhaps one of the top two or three speakers I've ever seen.

If you think you know a lot about legal writing, and you attend his seminar, you will find out that you don't know quite as much as you thought. You'll emerge from the speech, however, with concrete knowledge of how to improve. In fact, simply by attending the seminar you will have improved your writing—even if you don't follow his simple prescriptions for improvement. He offered four tasks that would lead to better writing in six months. I was glad to know I'd inadvertently fulfilled the first task: subscribing to The Economist and The New Yorker.

If you ever get a chance to see him speak do whatever you can to make it happen. You won't regret it. I promise!

How to prioritize ideas

Herb Kelleher, the founder and CEO of Southwest Airlines, was approached by a young woman in the marketing department about a proposal. She told him that surveys showed that passengers on the Houston to Las Vegas flight might enjoy a light entrée. "All we offer now is peanuts," she pointed out, "and a nice chicken Caesar salad would be popular..." Kelleher pondered her proposal for a few seconds before responding: "Tracy, will adding the chicken Caesar salad make us THE low-fare airline from Houston to Las Vegas? Because if it doesn't help us become the unchallenged low-fare airline, we're not serving any damn chicken salad."

This story is recounted in a highly-recommended book called Made to Stick. I don't know why it's taken me so long to read this book, as it has been recommended a dozen times and I knew it contained valuable information. So now that I'm reading it, what's so great about it?

Well, it offers a simple and concrete blueprint for finding core principles and then communicating them to other people. In the practice of law, at least the part that involves litigation, this is the most important thing you can learn. And, sadly, it's something that most lawyers have trouble with. Partly, it's because we don't teach this in law school. But mostly it's because nobody has offered us the blueprint. Made to Stick contains the blueprint.

You would think that finding the core idea is easy, and sometimes it is. But even when it is (and that's less common than most people think), communicating a core idea is extremely difficult. It requires persistent clarity, and relentless focus. Herb Kelleher gets up every day and reminds himself what the core idea of his business is: "Southwest is THE low fare airline." Then he struggles to remind everyone else as they doggedly pursue undiscovered ideas that are very good.

The core idea is 'core' not because it is a good idea. It's the best idea, but it doesn't stay in everyone's focus by that fact alone. Made to Stick explains why people drift away from the core idea, and why they have trouble communicating it. Lawyers who want to improve their powers of persuasion would do well to read this book. However, I don't recommend it to every lawyer. For example, I wouldn't recommend that my opponents read it. Ever.

A mobile lawyer is a paperless lawyer

Whenever I talk to lawyers about switching to a digital workflow system I always get the same question: what's the best way to switch? The answer: all at once. Next question. What's the second best way?

Ah, excellent question. And the answer is: just work on becoming a mobile lawyer. The more mobile you are the less dependent on paper you'll become (after all you aren't going to be very mobile if you have to drag tons of paper around with you). I was pretty mobile before Katrina pushed me into that extreme form of mobility known as nomadism. But Katrina was good because it forced me to think more deeply about how to diminish my reliance on paper, and anything else that would keep me tethered to a specific location.

One thing that is hard to escape from is your physical mailing address. You pretty much have to have one, and that means your mail will go to that location. And then you have to figure out how to retrieve it from a distant place. Wouldn't it be nice if you could have your mail sent to a place that scanned it and sent it to you by email? Well, turns out there is such a place. It's called Earth Class Mail.

You have to choose to have mail delivered to one of 18 regional P.O. centers. For about $10 per month they'll scan up to 35 envelopes and email you the image. You then decide if you want them to shred the envelope and its contents, or open it and scan the paper. You get up to 50 pages scanned for the $10 monthly fee and then pay .25 per page after that. There is a corporate package, and soon they will be adding the ability to electronically cash checks.

Obviously, this is not worthwhile for the average person. But if you are on a long trip, or if you don't plan to spend time in any one place for very long this is the way to get your paper mail.

Poor legal writing

I've written about legal writing extensively on this blog. In the past couple of days I've read two separate legal briefs that were simply horrendous. One thing I learned in my two years of clerking at federal court is that this is pretty much the norm. What's surprising is how much bad legal writing comes from so-called 'good law firms.'

Here is a tip for you budding students and young lawyers: never cite a case for a legal proposition if the outcome of the case went against the party who was in your client's position. If you know what I'm talking about then don't worry: you're one of the few. If you don't know what I'm talking about then it's probably because you've never noticed the problem. And that would be a bad sign.

Frankly, I consider this problem one that verges on malpractice.

I'm not talking about citing cases that go against you because your obligation as an officer of the court requires it. I'm talking about carelessly citing a case for a legal proposition that's easily found in another case that matches the outcome you seek in your motion papers. How stupid or careless do you have to be to cite a case that your opponent would love to have in her brief? The next stupidest thing you could do would be to just send your opponent a copy of the case. But no, you want the gold medal for stupidity so you put it in yours.

Great. Now go find a nice comfortable chair and see if you can poke yourself in the foot too.

Email writing tips from Judge Painter

Here are some great tips from Judge Mark Painter on crafting better emails. I especially like his discussion of the boilerplate disclaimer language that is now in vogue amongst attorneys (and which I have written about before). Remember, Judge Painter is coming to Louisiana in two weeks for some writing seminars. Probably worth checking out.

Legal Writing Seminar in New Orleans, Baton Rouge and Shreveport

Judge Mark Painter is a court of appeals judge in Cincinnati, Ohio and he has written a wonderful book called The Legal Writer. It's a short book (now in the 3rd edition) that gives 40 rules for lawyers and judges to use to make their writing clearer. I have a copy on my bookshelf, and believe me it's got a lot of highlighting. What could be better than having this handy little reference guide?

Well, being able to attend a one day seminar given by Judge Painter himself. And if you live in New Orleans, Baton Rouge or Shreveport that's exactly what you can do during the month of April. He'll appear in Shreveport on April 15th, Baton Rouge on April 17th, and New Orleans on April 18th. For more information check out this PDF file. It's only $289 for an all day program that will most certainly teach you how to communicate more effectively.

The poetry of a small town lawyer

Let us consider a seemingly absurd question: what is the difference between poetry and legal writing?

Poetry celebrates the sublime, and the poet often seeks to convey as much universal perspective as she can in as few words as possible. Law, of course, is the opposite. Legal draftsmen, er, draftspersons, approach every communication assuming the worst about people. This is why lawyers are compelled to write passages like this:

CONFIDENTIALITY NOTICE: This e­mail transmission (and/or attachments accompanying it) may contain confidential information belonging to the sender, which is protected by the attorney­client privilege or the work product doctrine. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying or distribution of or taking of any action in reliance upon this information is strictly prohibited. Furthermore, any unauthorized interception of this transmission is illegal under the law. If you have received this transmission in error, please promptly notify the sender by reply e­mail and then destroy all copies of this transmission and remove it from your e­mail program and all folders on your computer.

A small town lawyer, having a slightly more optimistic view of humanity, wrote a much different passage:

This email is confidential and intended for the addressee only. If you are not that person, please notify me and destroy this and all copies. Thank you.

It’s not poetry, but it’s a lot closer than the first example and probably accomplishes the same objective.  Maybe the big city lawyers would do well to read Robert Frost and take a road less travelled.

A ten year old teaches clarity in writing

I was recently reading The Best Science & Nature Writing of 2004, a compendium edited by Steve Pinker, who explains in the book's introduction that clarity of writing was a major criterion in selecting the articles included in the book.  He discussed the great Harvard psychologist Gordon Allport, who had written an 'epistle' for graduate Ph.D. students to use in crafting their thesis. Pinker  pointed out that "Allport tried to steer students away from the clutter and fog of professional science prose and offered as a model an essay by a ten-year-old girl, who he wrote merited a higher degree 'if not for the accuracy of her knowledge, then at least for the clarity of her diction.'"  Here is the ten year old girl's essay:

The bird that I am going to write about is the Owl.  The Owl cannot see at all by day and at night is as blind as a bat.

I do not know much about the Owl, so I will go on to the beast I am going to choose.  It is the Cow.  The Cow is a mammal.  It has six sides--right, left, and upper and below.  At the back it has a tail on which hangs a brush.  With this it sends the flies away so that they do not fall into the milk.  The head is for the purpose of growing horns and so that the mouth can be somewhere.  The horns are to butt with.  Under the cow hangs the milk.  It is arranged for milking.  When people milk, the milk comes through and there is never any end to the supply.  How the cow does it I have not yet realized, but it makes more and more.  The cow has a fine sense of smell; one can smell it far away.  That is the reason for the fresh air in the country.

The man cos is called an ox.  It is not a mammal.  The cow does not eat much, but what it eats it eats twice, so that it gets enough.  When it is hungry it moos, and when it says nothing it is because its inside is all full up with grass.

Amazing, isn't it?  This ten year old girl's observations, while obviously full of whimsy, are actually quite insightful.  I've seen more than a few legal briefs that were not as clever, and plenty that were not as clearly written.  I guess the lesson to be learned is that most people (even lawyers!) have something interesting to say, but not many know how to say it in an interesting way.