Set in Style

. . . about the Mere Mortal and the High-Priced Attorney?

The Mere Mortal hires the High-Priced Attorney to draft a contract. While reviewing the contract, She (the Mere Mortal) sees that He (the High-Priced Attorney) has split a whole bunch of clauses with commas. Without the commas, the clauses are fine; with the commas, the clauses don’t make sense.

She asks Him about the commas, and He talks about provisos and how commas are supposed to appear between provided and that. That’s what He was taught to do, and whoever taught Him that knows far better about such things than some Mere Mortal.

Just imagine paying some High-Priced Attorney $400/hr to draft a contract and then later learning that much of it is simply unenforceable because of bad punctuation!

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It happens. Attorneys write something, and no one reviews it. They make mistakes, which go unchallenged.

A good way to avoid the serious damage that errors in punctuation and grammar can do to a firm’s reputation is to have attorneys peer review each others’ work.

Better it is (for all involved) to catch mistakes before they go out the door.

Over the past few weeks, there’s been so much bad news about products imported from China. So, you’d expect law firms advising companies manufacturing products in China to issue client alerts related to all the recent product safety news, right?

Wrong! I just checked Linex Legal, a clearinghouse for law firm client alerts, and Big Law firms are — so far — ignoring the news.

. . . is worth doing right!

Lots of Big Law firms give great weight to that old adage, but others act as if it’s a very strange notion.

What gets me to mention this old adage? I’ll tell you:

The other day, I ran across this client alert (published by a very large firm that emphasizes the quality of its work) that had a misspelling in the first paragraph. Here it is:

Senate Majority Leader Harry Reid, D-Nevada, pulled the Senate’s comprehensive immigration reform bill on June 7 so that the Senate could move to other business.  He stated that the bill is not dead, but many deservers now question whether major immigration reform in the next two years is likely.

The misspelling is deservers.

Since I have considerable experience editing client alerts, I thought the attorney who wrote this alert would be happy to have me polish it. I mean . . . an attorney who charges people $400/hr for his expertise must care about the quality of his writing, right? Wrong!

So, I decided to review some other alerts this attorney wrote, and here are just a few of the rusted gems I discovered in 10 minutes:

Not my idea of a vacation, but medical tourism is becoming increasingly popular as health care service offerings abroad even while costs at home increase.

By make this also a state law, however, this empowers state law enforcement officials to take action without waiting for the Immigration and Customs Enforcement agency or the Department of Labor, the two federal agencies charged with oversight on the federal law.

These companies provide the economic engine the drives not only the tech sector, but so much of our economy.

I discovered a number of other odd things about this firm’s alerts. For instance, at the bottom of each alert, the following notice:

If required, put the stationery disclaimer here.

That’s a strange notice to add to a client alert. And right below that notice, there was this:

If you wish to opt out of these communications, visit http://www.acmelawfirm.com/vtu/p70978671VVyMcf98

The client alert was posted as an HTML file. It wasn’t sent to me. I just selected it from the firm’s list of alerts.

Well . . . if the attorney who wrote these alerts doesn’t care about misspellings and nonsensical assertions, the firm’s marketing people surely will, right? Wrong!

I contacted the marketing manager, but she couldn’t be bothered. “Talk to someone in Global Marketing,” she told me. So, I called the firm’s director of global marketing and left a phone message. This morning, she returned the call and I explained what it is I do: I edit client alerts; I polish them; I make their authors and their publishers look as good as can be.

“We have an offshore group that edits our alerts, so thanks for the offer but we really don’t need your services at this time.”

Yeah, right! It looks like somebody who speaks Hindi is doing the editing for this firm. It really does.

I guess I just don’t get it. I know attorneys who charge people $400/hr and each of them is so concerned with appearance. Before they go and speak to a potential client, they get their shoes polished and their hair cut and their nails manicured. They know appearance matters.

Then why would an expensive attorney not bother to engage an editor to make sure that a publication — one with his name attached to it and one which might be read by hundreds or thousands of readers, many potential clients — why would he not bother to have an editor polish it?

I suppose he figures that client alerts (and those who edit them) are not worthwhile. And I suppose his figuring his flawed. By saving a few bucks on not having an editor review his work, he’s sacrificing big bucks by scaring potential clients away. They’re looking at his work and asking themselves, “if he doesn’t know the difference between observers and deservers, do we want him handling our work? Would we want to work with this firm if they put their name to such slop?”

Of course not! At $400/hr, “Hell No!”

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Update — 20 Aug 2007: I just reviewed the latest alert written by this attorney. He certainly needs an editor, else the alert would not contain nonsense like this:

It is unlawful in the US for employers to employ employees who are unauthorized for such employment in the US.

The Legalese Hall of Shame spotligts the works of attorneys who think that arranging obscure terms in convoluted constructions is sure to impress somebody.

The Hall is run by Adam Freedman, author of The Party of the First Part, a new book about the origins of legalese. Freedman makes his bread by converting Legalese into Plain English. He also writes the “Legal Lingo” column for the New York Law Journal Magazine. He’s also author of Elated by Details, a collection of short stories about people’s inability to be content with who/what they are.

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Update — 18 Aug 2007: In today’s New York Times Magazine, William Safire offers a recommendation in favor of The Party of the First Part .

Some very good advice to attorney-authors who want to be read and respected comes from Daniel Oppenheimer, Ph.D., professor of psychology at Princeton.

In his paper — “Consequences of erudite vernacular utilized irrespective of necessity: problems with using long words needlessly,” published in the journal of Applied Cognitive Psychology — Dr. Oppenheimer reiterates what few attorney-authors can believe: readers consistently judge the writer who uses plain, clear language as more intelligent than the writer who arranges obscure terms in convoluted constructions.

And there’s some good advice for law firms that use Arial for body copy: readers judge text set in a hard-to-read face as being written by less intelligent authors.

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Professor Joseph Kimble — professor of law at the Thomas M. Cooley Law School — offers similar advice, specifically addressing the benefits to lawyers of writing for readers.

I’m editing a client alert for Acme Law, LLP. The final draft begins with a 223-word intro set as a single paragraph covering three separate topics. In short order, I whittle it down to 103 words set as two paragraphs, each covering a single topic.

After that, I hit upon lots of copy like this:

While Congress funded the FHA at the time of its creation in 1934, the FHA repaid those funds by 1940, and it has been entirely self-funded since that time with proceeds from borrowers’ mortgage insurance being used to operate the program.

I do some fact checking, and then I whittle it down to this:

While Congress funded the FHA at the time of its creation in 1934, the agency repaid those funds by 1940. It has been entirely self-funded since then.

When I’m done, what had been a 4,260-word article — essentially a verbose rehash of information available at the FHA’s Web site, plus some of the firm’s significant representations — is down to a more palatable (and more likely to be read) 3,408 words.

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Most client alerts deal with technical issues, and most are written for an audience of lawyers versed in a particular area of the law. Even so, most alerts are written as if the audience consisted not of corporate counsel, but of law clerks. That’s why they so often begin by defining household terms like SEC or IRS, even when the target audience consists of attorneys well-versed in securities and tax law.

Writing an alert designed to attract or inform in-house counsel is one thing, but writing an alert for a much wider audience (e.g., bankers and mortgage brokers and business journalists) is quite another. The alert we’re discussing is intended for a broad audience. It’s intended to gain media mention and to attract new clients. The attorneys who wrote it told me so.

And that’s why I’m tossing each and every unnecessary word and phrase I can find. You see, the most coveted potential clients (our key audience) have lots of money to spend on outside counsel, which means their time is very precious. So, they’d much rather read an edited (i.e. polished) alert that’s shorter and easier to read than a longer, unedited version.

If an alert begins with three paragraphs stuffed into one, then business journalists won’t bother to read it at all (because their time is also precious), and they won’t bother to contact the author for a quote.

Here’s a simple rule for client alerts: when it comes to how many words you use to express an idea, less is more. (Consider this quote, often attributed to Mark Twain: “I would have written a shorter letter, but I did not have the time.”)

A client alert is not for the pleasure of the author. Its purpose is to influence the valuable reader, who considers fluff (more words than necessary) a waste of precious time. Forgetting that can be costly. All the time an attorney put into writing an alert can be wasted, unless — of course — an editor polishes the alert before it’s published.

In some cases, an attorney’s effort is worse than wasted. What had been a potential client is no longer interested in the attorney or his firm because something that attorney wrote left such a bad first impression. (“If a misplaced comma is worth $2.3 million, do I trust this attorney to prepare an important legal agreement for my company? I think not!”)

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Here’s an article about audience analysis, written by Douglas Abrams, a law professor who’s written several books and whose law review articles have been cited in four Supreme Court decisions. It’s titled The Writer’s Theatre. For attorney-authors who like to make a solid first impression, it’s very well worth a read.

LLRX has this article by Kevin Strutin about on-line companions to law reviews.

Aspiring attorney-authors should give it a read, as it discusses a shift away from traditional law review articles.

Of note: Strutin’s article begins by noting a law review article authored by Lawrence Solum who maintains the Legal Theory blog. In that article, Solum discusses (sort of) why he started a blog (even though he “had no clue what a web log was”). Curiously, the first footnote in Slocum’s article refers readers to his first blog entry, which consists of the following (set as white text on a white background, so it can’t be seen):

a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a
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a a a a a a a a a a a a a a a a a a a a a a y y y y y y y y y y y y y y
y y y y y y y y y y y y y y y y y y y y y y y y y y y y y y y y y y X X
X X X X X X X X X X X X X X X X X X X ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ]

A might weird, but Solum is something of a philosopher, and such are well known for doing things weird.

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If reading white type on a white background strikes you as a complete waste of time, but a scholarly analysis of law review articles does not, then you should give a read to this law review article authored by law professors Leah M. Christensen and Julie A. Oseid. Their article considers “what factors student [law review] editors consider most important when making article selection decisions.”

Of note: One thing that surprised the authors was that most law review editors found most submissions lacking in quality. From their article:

Four out of the five editors from the top 15 journals noted surprise about the poor quality of articles. Sixteen of the thirty-one editors from the non-specialty journals commented about the poor quality of articles.. At slightly over half the respondents, this was the comment made most often by editors at non-specialty journals. This was also the most common comment from specialty journal editors with six out of seventeen noting the poor quality of articles.

Much of what this blog is about is appearances: looking good.

Most law firms put great emphasis on appearances. They expect their attorneys to show up for work with their hair styled and their shoes polished.

One big firm that claims not to care about appearances is Cleary Gottlieb Steen & Hamilton.

Recently, Mark Walker, the firm’s managing partner, sent an e-mail to everyone at the firm about appearances. He wrote, “The firm rejects the idea that appearance or personal style is indicative of an individual’s qualities or talents as a person or lawyer.”

So . . . if you happen to be a law student, your hairdo is a green Mohawk, you’ve got rings in your eyebrows, nose, and lips . . . consider a career at Cleary Gottlieb.

I just discovered Linex Legal, which — among other things — acts as a clearinghouse for law firm client alerts. Those who subscribe to this free service can choose to receive weekly e-mails that link to client alerts on a range of topics from a range of firms. And those interested in a particular topic can use the service to locate client alerts on that topic.

Methinks this could be a very useful service for big firm clients. As well, it could increase competition among firms. If a client decides that a particular firm does the best job of preparing alerts . . . .