Set in Style

It’s not the agreement we signed that counts, it’s this early draft that I just happened to have!

This article discusses the dispute between Novell and the Santa Cruz Operation over the 1995 agreement in which Novell either sold — or did not sell — copyrights to its brand of Unix software to SCO. The lawyer (Tor Braham) who drafted the agreement for Novell (he was a partner at Wilson Sonsini then) now says that SCO didn’t know what it was or wasn’t buying! And he points to early drafts of the agreement to make his point.

The judge hearing the case has already remarked on the ambiguity of a key amendment to the agreement. He says it’s questionable whether SCO bought the rights, or not.

This article describes a recent competition between law firm Web sites that resulted in a tie between Womble Carlyle and Helms Mulliss.

The judges weren’t overly impressed with what they saw. Said one, “I feel like I woke up from a dream where I’ve been walking on dry, arid soil for about 50 years, and I find myself on a Ford Taurus sales lot. When part of your business success is dependent on differentiating yourself in a busy, cluttered marketplace, you’ve got to stand out on a limb and not look like everyone else.”

The other judge said, “it was hard to miss the fact that a large portion of the sites were created by one firm — a vendor that specializes in building sites for law firms. Happily, there were firms that entered the competition that got it. These sites were good sites, but they stood out all the more when contrasted with their template-bound competition.”

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The latest issue of Law Firm Inc. has an excellent article about law firm marketing written by Norm Rubenstein. In it, he says, “Indeed, the lack of differentiation is the common plight of the majority of the Am Law 200.”
Amen!

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Weird: Kilpatrick Stockton just issued this press release announcing that it came in third in this year’s Internet Marketing Attorney law firm Web site awards.

What’s weird is that the link to that press release results in a Page Not Found error.

Heck! As of this writing, all of the links from the site’s News and Events page to the firm’s Featured Press Releases yield Page Not Found errors.

This link works, but it reveals another problem (an all-too-common problem): few of the firm’s press releases indicate the year they were published.

Consider this press release. Was it published last year, or the year before, or five years ago, or ten years ago?

How about this press release?

First up is James F. McDonough III, a third-year student at Emory Law School, who was recently named winner of the 2007 Burton Award for Legal Achievement.

McDonough’s entry, “The Myth of the Patent Troll: An Alternative View of the Function of Patient Deals in an Idea Economy,” makes the claim that patent trolls are quite useful, rather than absolutely useless.

The award will be presented on June 4, at an awards ceremony and dinner at the Library of Congress featuring guest speaker Bob Schieffer of NBC News. Bill Press will be the Master of Ceremonies.

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Next up is Aaron Lee Bell, who received the Professor Thomas F. Blackwell Memorial Award, named in honor of the late mathematician and legal writing instructor killed in 2002 by a law student from Nigeria who went on a shooting rampage after being expelled from the Appalachian School of Law.

The annual award, which is sponsored by the Association of Legal Writing Directors and the Legal Writing Institute, is presented to a third-year law student who exemplifies Blackwell’s outstanding qualities.

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Let’s not forget Laurel Oates, director of Seattle University’s legal writing program and cofounder of the Legal Writing Institute, who won the Burton Award for Outstanding Contributions to Legal Writing Education.

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Nor should we forget Les Jacobs, a partner with Thompson Hine LLP, who won a Burton award for his article, Criminal Enforcement of Antitrust Laws – Problems with the U.S. Model, which rebuts a speech made by Thomas Barnett, an assistant attorney general in the Antitrust Division of the U.S. Department of Justice.

Here’s some advice (from The Elements of Style):

Modifiers should come, if possible, next to the words they modify.

The reasoning is simple: when a modifier appears right next to what it modifies, it’s clear to the reader what’s being modified. He doesn’t have to stop and wonder.

Consider the following excerpt from an attorney-authored article about drafting acquisition agreements:

An alternative, which addresses some of these concerns, while still retaining many of the benefits of arbitration, is to provide a hybrid approach whereby most matters are addressed by arbitration . . . .

Note the clause which addresses some of these concerns. Given its placement, it’s clear what’s being modified: an alternative. The reader doesn’t have to stop and think about it.

Now, consider the following excerpt (about a provision in an acquisition agreement to determine which party gets to pay the other’s legal fees in case of a dispute) from the same article:

On the other hand, such a provision should encourage the parties to think carefully before commencing suit (especially when the claim is questionable), which may promote negotiation of a settlement in the event of a dispute.

What does the nonrestrictive clause that ends the sentence modify? From its placement, it seems to modify commencing suit. But that doesn’t make good sense. The author intended it to modify a provision, but he put so much verbiage between the substantive and its modifier, the reader has to stop and think about it.

The solution? Put the modifier near what it modifies, like so:

On the other hand, such a provision, which could promote negotiation of a settlement in the event of a dispute, encourages the parties to think carefully before commencing suit (especially when the claim is questionable).

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Another example from another attorney-authored article published by the same firm (and appearing in the same newsletter):

Depending on the structure of the acquisition transaction, the sale of a business may trigger COBRA obligations. In some cases, the buyer may have COBRA obligations to seller’s former employees, which need to be properly managed.

Given its placement, the nonrestrictive clause at the end of the sentence modifies the seller’s former employees. It says that they must be properly managed; but that’s not what the author intended. What he meant to say was:

Depending on the structure of the acquisition transaction, the buyer could have COBRA obligations to the seller’s former employees. If so, those obligations must met.

Another example from that article:

Qualified retirement plans (such as pension plans and 401(k) plans), must meet a host of annual non-discrimination tests. Failing any of these tests disqualifies the plan, which can have potentially ruinous financial consequences.

The problem here isn’t that the reader might be confused as to what the nonrestrictive clause at the end of the sentence modifies. The problem is of a different variety.

The first sentence speaks of plans (plural). The second sentence speaks of the plan (singular). What we have here is a singular/plural disagreement, which is easily corrected:

A qualified retirement plan, such as a 401(k) plan, must meet a host of annual non-discrimination tests. Failing any of these tests disqualifies the plan, thus raising the potential for severe financial consequences.

One last example, which comes from another article in the same newsletter:

Sometimes the best suitors are companies engaged in similar business operations in a different region. Such a company might either wish to expand territorially (and hence be a suitable buyer) or pursue an exit strategy for its owners (and hence be a suitable seller).

Here we have the same problem. The first sentence speaks of suitors (plural) but the second speaks of a company (singular). Again, this type of error is easily corrected:

Sometimes the best suitor is a competitor operating in a different region. A competitor might wish to expand territorially (it could be a potential buyer) or its owners might wish to pursue an exit strategy (it could be a potential seller).

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Client alerts and newsletters can be very effective marketing tools. But they can do just as much harm as good. They can support a firm’s claim of excellence in all it does, or they can belie that claim. They can attract potential clients, or make them wonder: is this firm that careless when it comes to drafting acquisition agreements?

Today’s issue of the Cincinnati Enquirer has this story about some of the citations Judge Mark Painter — a proponent of Plain English and author of The Legal Writer: 40 Rules for the Art of Legal Writing — has used in his opinions, and why.

From the article:

“My passion is improving legal writing,” Painter said. “Too often, judges and lawyers just write for each other. They use so much legalese, you get to the end and you don’t know what happened.”

 

“Every case involves people, lay people,” Painter said. “I think they should be able to understand what’s happening to them.”

Most lawyers would do well to read Judge Painter’s book and give serious thought to his advice.

Have you ever read c5209698-cb1e-4524-bb37-1a6de6c? What about 746998, Corp%20&%20Sec%20Vol%200804%20L, 20040930, article_3402, 381f0cc6-b7fa-4f90-a21d-3e4c72b4b22f_document, or 616?

These are names that law firms have given to publications posted at their Web sites. You go to a law firm’s Web site, find a publication about restrictive covenants, download it, and there it is: a file named c5209698-cb1e-4524-bb37-1a6de6c.

Why do law firms give such cryptic names to their publications? Mostly, it’s convenient (for the firms, that is). By giving their publications these cryptic names, they don’t have to stop and think of sensible names: names that would be most convenient for the people interested in these publications.

I know one firm that gives the same name to all its newsletters. The result? If you download one newsletter from that firm’s Web site, and then another, the second newsletter replaces the first (since it has the same file name).

My advice? If you’re going to function as a publisher, do it in style. If you claim your firm has great concern for client service, show it in all you do, especially in all the little things that tell us who you really are. That’s my advice.

There’s this boy sitting in the back of Mrs. Jones’ 8th-grade English class. Mrs. Jones is going over the whole notion of the double negative, advising students to avoid it, and one student asks if there’s such a thing as a double positive. Mrs. Jones ponders for a moment, and then says, “No, there’s not,” whereupon the boy in the back makes this insightful remark: “Yeah, right!”

In honor of that boy, this snippet from the Supreme Court’s decision in Keyes v. School District No. 1 (413 U.S. 189, 211):

This is not to say, however, that the prima facie case may not be met by evidence supporting a finding that a lesser degree of segregated schooling in the core city area would not have resulted even if the Board had not acted as it did.

I starting reading this brief from Massachusetts v. EPA because I heard it won an award. But I didn’t get far. At the bottom of page 1, I got stuck on this assertion:

Physical or chemical matter that is emitted into the ambient air is an “air pollutant” under the Clean Air Act. 42 U.S.C. 7602(g).

The steam from a tea kettle is an air pollutant? Does the Clean Air Act really say that? I couldn’t believe it, so I read the act, and found that it defines an air pollutant like this:

The term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which [sic] is emitted into or otherwise enters the ambient air.

By this definition, plants pollute the air when they emit oxygen! whales pollute the air when they exhale! cats pollute the air when they sneeze!

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In his dissent in Massachusetts v. EPA, Justice Scalia complained that — according to the majority’s interpretation of the law — “everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’” Given how the law is written, that’s the only reasonable interpretation there is.

Perhaps its time for politicians to spend less time complaining about courts interpreting the law. Perhaps its time for them to start demanding that legislators use due diligence in writing the law. If Congress did a reasonable job of writing the law, there’d be so much less need for the courts to speculate on what the law really means.

I’m working on a project that [not which] has me writing about the Securities Act of 1933 and the Securities Exchange Act of 1934.

One thing that [not which] strikes me about these two acts is how they use which [not that] in places that [not which] call for that [not which].

Here’s one example from the 1933 act:

The term “transfer agent” does not include any insurance company or separate account which performs such functions solely with respect to variable annuity contracts or variable life policies which it issues or any registered clearing agency which performs such functions solely with respect to options contracts which it issues.

Leonard, Street and Deinard is exploring a new format for presenting information to clients. It’s presenting the information in high-quality audio podcasts.

Here’s a link to the firm’s first audio podcast: What Every Business Should Know About the New Rules of Electronic Discovery

A fabulous idea?

Before you answer that, compare that podcast to the firm’s client alert on the same topic.

Now . . . do you suppose Leonard, Street and Deinard is going to be publishing podcasts like this a year from now? What about other firms? Do you suppose they’re likely to follow this lead? Why, or why not?

How is writing for a podcast so very different from writing for print? (Or, what’s the difference between listening to a narrator, or reading an author?)

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Update — 23 April 2007: I just found another firm (Fowler White Boggs Banker) with a bunch of podcasts going back to last June.