Set in Style

Here’s what can happen when an attorney who writes one way all day is asked to write a client alert, but he doesn’t (or can’t) take the time to shift gears first, to go from his usual voice (formal and passive) to something livelier. If he can’t make the shift, the alert could start like this:

If expressly permitted by a corporation’s certificate of incorporation through a “blank check” provision, a corporation’s board of directors may authorize a new series of preferred stock by adoption of a resolution setting forth the rights and preferences of such preferred stock.

That’s the first line in this alert. It’s stuffy and old-fashioned. It sounds more like the start of a brief than a client alert. It doesn’t sound like it’s meant to attract business.

What would it sound like if it was meant to attract business, if that was its main purpose?

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The Valorem Law Group knows a thing or two about marketing legal services. It knows that standing out from competitors is the way to go. And its Web site demonstrates that very well.

Take a look at the site’s disclaimer. That’s certainly not your average, run-of-the-mill disclaimer, and this can’t possibly be your average, run-of-the-mill law firm.

Yet another answer to our perpetual question: what can an editor do for you?

Consider the following copy, the first line in a client alert:

The Ninth Circuit ruled earlier this month in Fair Housing Council v. Roommates.com that a website that specializes in matching renters with those with rooms to rent violated the Fair Housing Act and California housing laws by requiring users to input information about their sex, sexual orientation, and whether children would be brought into the house.

There’s a least a few things an editor would do with this. First of all, users would be gone, and renters would simply be called renters. Why? Because, without that, it’s not entirely clear that they’re one and the same.

The phrase requiring users to input information would be abbreviated. In general, phrases that can be abbreviated do get abbreviated, for the reader’s sake. If you can say something in fewer words, and you want to impress your readers, then use fewer words.

Next, the house would be gone. Why? Because rooms to rent aren’t all in houses. Some are in apartment buildings and condos. Some aren’t rooms at all.

An editor might revise that first line like so:

The Ninth Circuit ruled earlier this month in Fair Housing Council v. Roommates.com that a website that specializes in matching renters with those with rooms to rent violated the Fair Housing Act and California housing laws by requiring renters to disclose their sex, their sexual orientation, and whether children live with them.

As always, the advantage goes to the author. She looks better. 

And that’s what editors do. They make others look better.

The May 2008 edition of the ABA Journal has this interview with Bryan Garner and Antonin Scalia discussing topics from Making Your Case: The Art of Persuading Judges.

Here’s some of the best advice the book has to offer (about writing briefs):

Banish jargon, hackneyed expressions and needless Latin. By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise. A nexus, for example, is nothing more or less than a link or a connection. And what is the instant case? Does it have anything to do with instant coffee? Alas, to tell the truth, it’s no different from this case or even here.

Write normal English. Such as a demonstrative adjective (such action) can almost always be replaced with the good old normal English this or that. And hereinbefore with earlier. And pursuant to with under. The key is to avoid words that would cause people to look at you funny if you used them at a party. Pretend that you’re telling your story to some friends in your living room; that’s how you should tell it to the court.

Note that the second paragraph has a few incomplete sentences. An oversight? A hint? Who can say?

I don’t know about you, but I find it a mite odd (sophomoric) when a law firm — especially a great big one — bothers to list each and every instance of someone at the firm being quoted in a newspaper or magazine. I find it especially odd when the list includes quotes that appeared in some small-town newspaper with a circulation of several hundred, or when the most recently published quote is four or five years old.

But I find nothing odd about the importance firms place on quotes from their attorneys, especially when those quotes appear in major papers like the New York Times or the Wall Street Journal, or widely-circulated magazines like Business Week or Forbes. Those quotes can attract business; or they can drive it away.

And so, most big firms have guidelines and procedures for dealing with journalists. Some even offer their partners training on how to respond to questions from journalists. All well and good.

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Review the Standards of Review published by the Ninth Circuit Court of Appeals. From a production standpoint, this is pretty scary stuff. And if you wonder why, just compare them (those published standards) to these published standards.

Brownstein Hyatt Farber Schreck — a firm that boasts “you can rest assured that you’re being represented by a team of seasoned attorneys with the knowledge, relationships and legal skills to help you mitigate even the most complex environmental risk” — says wood is a fossil fuel.

California recently enacted a landmark global warming law, Assembly Bill 32 (AB32), whose goals were to establish state-wide programs designed to combat greenhouse gases and promote the development and use of energy-efficient technologies. Carbon dioxide is the main focus of AB32. Carbon dioxide is produced by the burning of fossil fuels, such as coal, petroleum, natural gas, or wood, and is discharged primarily from exhaust pipes and industrial smokestacks. Because greenhouse gas emissions are directly related to the use of energy, measures designed to conserve energy and reduce greenhouse gas emissions are key, but surely not the entire picture.

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This is a classic example of why law firms (functioning as publishers) need editors. Having an editor review copy before it’s published is nothing less than the application of due diligence.

Note: without an editor, readers might be left with the impression that the firm’s expert attorneys think that most of the carbon dioxide in Earth’s atmosphere comes from exhaust pipes and industrial smokestacks.

In a sense, what Brownstein, et al. is doing with its publications is demonstrating to all (including prospective clients and adversaries) that it doesn’t apply due diligence to all it does, and that’s not good, especially since the firm claims (believe it or not) that due diligence is one of its specialties.

Winstead PC — one of the largest law firms in Texas — does what so many other large law firms do. It advertises that it uses technology — including its “unique data and software applications” — to increase efficiency and to provide “[u]nsurpassed access to critical business and legal information.”

Sounds pretty good, right?

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It’s like David v. Goliath. There’s a big manufacturer. It likes to throw its weight around. It sends a cease-and-desist letter to some Mom-and-Pop shop. It turns out that Pop is a lawyer, and he’s got a formidable sense of humor.

Read Pop’s response to Monster’s claim of patent infringement.

Yesterday, the House passed the Plain Language in Government Communications Act of 2008 by a vote of 376 to 1. The act requires government agencies to use plain language in “Government* documents intended for the public.” The act is also meant to “preserve and enhance the role of English.”

To comply, government agencies may rely on the Plain English Handbook, published by the Securities and Exchange Commission, or the Federal Plain Language Guidelines.

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*Curious it is that, in such a bill, government is set as Government.

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Related News:

This article (published today) describes the massive effort underway at the Veterans Affairs Department to rewrite regulations in plain language.

And this proposal from the SEC would require investment advisers to provide their clients with brochures written in plain English.