Set in Style

Let’s assume that those interested in recent court decisions regarding IPOs are very busy. Let’s assume that they’d rather work with attorneys who appreciate that their time is precious. Let’s assume that they’d rather read 74 words that contain more useful information than 97 words.

Now, consider the intro to this client alert:

On June 18, 2007, in a 7-1 decision, the U.S. Supreme Court in Credit Suisse Securities (USA) LLC v. Billing, U.S., No. 05-1157 127 S.Ct. 2383, 2007 U.S. LEXIS 7724 (Jun. 18, 2007) held that securities laws implicitly preclude the application of antitrust law to investment bank underwriters of initial public offerings of securities because they face active regulation by the U.S. Securities and Exchange Commission. While it further limits the application of the antitrust laws, the ruling is a significant victory for the securities industry and reaffirms the SEC’s role in regulating competition in the financial markets.

Compare that to the intro after it’s been touched by an editor:

On June 18, 2007, in a 7-1 decision, the U.S. Supreme Court ruled that — because initial public offerings are regulated by the Securities and Exchange Commission — securities laws, rather than antitrust laws, apply to investment banks underwriting IPOs.

The ruling in Credit Suisse Securities v. Billing limits the ability of plaintiffs to bring antitrust claims against underwriters of IPOs and reaffirms the SEC’s role in regulating competition in the financial markets.

Suppose you’re general counsel for some Fortune 500 company. You’re busy and you’re time is precious and you could give a hoot as to which law firm sends you the fanciest holiday card at the end of the year.

Are you going to choose to receive client alerts from a firm that seems as if it cares about your time, or one that seems as if you’re likely to be impressed with more words than necessary? Which would you prefer: the firm that employs an editor, or the one that employs a CMO worried about sending you a fancy holiday card?

Today’s issue of the Providence Journal has this article about the Honorable Bruce Marshall Selya, senior judge of the U.S. First Circuit Court of Appeals. The focus of the article is on the judge’s tendency to use obscure terms like puce and lexiphanicism in his opinions.

Here’s an earlier article about the sesquipedalian septuagenarian published in the Boston Globe.

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The Jacksonville Daily Record has this story about Bill Ferry, media relations director for Comcast. The focus is on the value of journalism training for attorneys as authors.

Here’s a quote from the article:

“When you are writing the news, you are influencing how people view information,” said Ferry. “It’s similar with law, where you’re trying to influence or build a consensus on something among a group, usually to win a case.”

You might recall Zeno’s famous paradox. Achilles, swiftest of runners, is set to race against a tortoise. To make a fair competition of it, Achilles gives the tortoise a very favorable head start — half the distance of the race.

The contestants begin at the same time, both moving forward at a constant speed. But Achilles can’t catch up with the tortoise. You see, by the time Achilles gets to where the tortoise started, the plodding reptile has made some progress. By the time Achilles reaches that point, the tortoise has made some further progress, etc.

On and on it goes, until — a few thousand years later — Newton comes up with the Calculus. Then Achilles has a logical way to beat the tortoise.

In another version of the paradox, an arrow can never reach its target. First, it must travel half the distance. Then, it must travel half the remaining distance, and so on. Since half the remaining distance is always some distance, the arrow would have to travel forever and ever to reach its target.

Now, consider this intro to a publication from a well known law firm:

This is the Baker Botts Paradox, which suggests that — even though you might feel like a paradox — you can never get egg on your face because the egg keeps traveling half the remaining distance!

One Big Firm blog worth reading (or emulating) is the Technology Law Update blog published by Thelen Reid.

Why is this blog worth reading?

1. It’s updated regularly.

2. It’s well written.

3. It’s very focused.

The blog’s posts are devoted to cases involving computer technology. As best I can tell, other aspects of computer-related law (e.g., pending legislation, brewing disputes, etc.) are not considered.

The blog replaces a Thelen Reid newsletter of the same name, and it contains entries older than the blog itself. The firm claims that the sole author is one Jeff Neuburger, head of the firm’s Technology, Media and Communications Department.

Of Note: Venable also has a newsletter titled Technology Law Update. Apparently, it was last updated over four years ago.

Welsh & Katz, Ltd. is an IP firm that “offers a variety of intellectual property services.”

I recently stumbled upon this client advisory published by the firm. It’s titled Client Advisory: Microsoft v. AT&T Supreme Court Decision.

The first thing that caught my eye was that — in all but one instance — the firm applied the registered trademark symbol to Windows. I wondered why. The symbol isn’t applied to Microsoft or to A T & T, even though those are registered trademarks that appear in the alert. Why bother to apply it to Windows?

Then I looked at this ruling from the United States Court of Appeals for the Federal Circuit. Like the client advisory from Welsh & Katz, the ruling also applies the registered trademark symbol to Windows, but not to Microsoft or to A T & T.

Now, why would a federal court apply the registered trademark symbol to Windows in a ruling?

Most judicial opinions are pretty boring. But there are interesting exceptions.

Consider this recent opinion, written by Judge Terence Evans of the Seventh Circuit Court of Appeals, in Central Manufacturing, Inc. v. Brett, a case of trademark infringement concerning a “Stealth Bat” marketed by George Brett.

Here’s the intro:

The Pine Tar Incident

It’s undisputed: George Brett was a great baseball player. The statistics from his 21 years in The Show, all with the Kansas City Royals, seal the deal: 3,154 hits, 317 home runs, and a career batting average of .305. Only three other players —- Stan Musial, Hank Aaron, and Willie Mays —- ended their careers with more than 3,000 hits and 300 home runs, while still maintaining a lifetime batting average over .300. Brett’s selection to the Hall of Fame, on the first ballot in 1999, was richly deserved. Yet for all his accomplishments, many who love baseball will always think of the “Pine Tar Incident” as the capstone of his career. It is a joy to recall.

Much more engaging than the typical intro to an opinion, is it not?

Once again, even the best writers need editors. To make the point, here’s another excerpt from the opinion, including my edits. Inserts are underlined:

Leo Stoller is no stranger to trademark litigation. Indeed, one might say it is the essential part of his business strategy. In fact, were there a Hall of Fame for hyperactive trademark litigators, Stoller would be in it. And, like George Brett, he would have gotten in on the first ballot. Acting as a sort of intellectual property entrepreneur, Stoller has federally registered scores of trademarks with the U.S. PTO USPTO (Central lists upwards of 50 that are actual or pending for just the “Stealth” mark), many containing everyday words that regularly pop up in commercial enterprise.
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When other companies or individuals inevitably make use of these words, Stoller issues cease-and-desist letters in the hopes that the user will blanche balk at the prospect of litigation and either agree to pay him a “licensing fee” or yield to his claims of ownership and stop using the alleged mark altogether. “Essentially, if an entity markets a product with some version of the name ‘Stealth’ or otherwise with a ’stealth’-like description, Plaintiff has elected to sue that entity.” S Industries, Inc. v. JL Audio, Inc., 29 F. Supp. 2d 878, 881 (N.D. Ill. 1998).

Nothing says “We Don’t Know Computers” quite like a photocopy stored in a PDF file. So far as search engines are concerned, the file contains no text at all, much less significant terms. And when the photocopy isn’t done right, the text is difficult (or impossible) to read. When a law firm publishes such a file, it nips at any claim the firm makes about “excellence in all we do.”

Consider this chunk of type from an article published by Kaye Scholer:

Not so easy to read, is it? And readability is hardly improved by zooming in on the copy.

Now, consider the same chunk of type after the file has been prepped by an editor:

Once again, the answer to the question — what can an editor can do for a law firm? — is just this: make the firm look like one that really cares about “excellence in all we do.”

This alert, published by Wilson Sonsini, was mentioned in two notable places: the Wall Street Journal and the Journal’s law blog.

This client alert, published by Paul Hastings, was mentioned in this article published by The Washington Post.

Now . . . why did Kevin Drawbaugh, the author of the article, bother to mention a client alert from Paul Hastings rather than one from some other firm?

There were several reasons. Key among them was that Paul Hastings’ alert was written in such a way that Drawbaugh, a reporter covering financial issues, could read it and quickly comprehend it. In other words, it was written for a broader audience than the alerts published by most firms.

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Latham & Watkins also published a client alert on this topic, and I can’t imagine a reporter bothering to read it. Here’s the first paragraph from the Latham & Watkins alert:

Managers in various types of partnerships, such as private equity and hedge funds, often share in the profits of the partnership through a so-called “carried interest.” These interests generally allocate to such managers a percentage of the partnership’s profits (often 20 percent), and such allocations are usually disproportionate in that the percentage of profits allocated to such managers are generally well in excess of the percentage of capital contributed by such managers to the partnership. Under current law, managers are generally not taxed upon the receipt of these interests, and managers who receive these interests are treated as partners in the partnership and hence their allocable share of partnership income, including the character of such income, flows through to such managers. Thus, to the extent that the partnership’s profits constitute long-term capital gains, managers who are individuals are taxed on their allocable share of such capital gains at a maximum rate of 15 percent at the federal level.

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In addition to the Paul Hastings alert, I’ve found a few others concerning the recently proposed legislation I’d rank as well done. One is published by White & Case, and another is published by King & Spalding.

Let’s examine our stereotypical big, big law firm — Acme Law, LLP.

Like all other big firms, Acme Law has a diversity statement. Like all big law firm diversity statements, it says something about the firm’s commitment to recruiting a staff that “mirrors the diversity of the communities in which we live and work.”

OK. But the firm also has an EEO statement that says the firm doesn’t consider age, race, sex, religion, sexual orientation, disability, national origin, etc. in employment decisions.

The statements contradict one another, don’t they?

“We consider these things, but — since the law says we can’t — we don’t (although we really do because our clients say we must.)”