Set in Style

FEMA holds a bogus press conference about the fires in California, and people are outraged. Across the country — from liberal living rooms to patriotic patios to real press conferences with real reporters — people are asking, “How dumb can these people continue to be AND STILL HAVE JOBS?”

Even more than large federal agencies, large law firms have to be sure they don’t find themselves in the news for some ethical lapse. That could be costly!

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In addition to lots of legal matter, large law firms publish lots of promotional materials: client alerts, newsletters, announcements, etc.

So, these firms have to consider the ethics of publishing. They have to consider things like:

1. Being accurate. The date a piece was published and the name(s) of its author(s) should appear at the top of the piece, along with the name of the firm.

If an associate writes the copy for a client alert, but a partner is credited as the author, and your firm’s name is on it, you’ve made a misrepresentation.

If you publish a client alert in May, and then update it in August to reflect some change in events, and you don’t change the date, you’ve made a misrepresentation.

If you publish an article and identify So-and-So as its author, then So-and-So must know of it. If I call So-and-So (e.g., one of your attorneys) and ask about the article, and So-and-So knows nothing of it — even though it was published just last week — then something’s not quite right.

2. Giving Credit. Add a copyright notice to by-lined articles.

If you publish something that belongs to another, don’t present it as your own (without consent).

If an attorney at your firm wrote some articles for a business journal (which holds the rights to those artices), you can’t republish those articles without permission.

If you gain an attorey from another firm, and the attorney wrote some articles for that firm, don’t republish them.

If a photo appears in your firm’s brochure, then you must have acquired rights to it. The people who produce your publications need to know about copyrights and permissions and works-for-hire. After all, they do work at a law firm!

3. Being Careful. Publishers have responsibilities, and it can be costly to treat them too lightly.

Some large law firms that publish lots of promotional materials like client alerts don’t regularly review what they publish. That’s playing with fire.

A publisher doesn’t act responsibly when it doesn’t review what it publishes.

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Imagine this: a marketing coordinator at a large firm makes a bad decision, which goes unchecked. She collects old law journal articles written by the firm’s attorneys. She compiles them and then republishes them all together in what looks like the firm’s own law journal. It looks great, but there’s a problem — she didn’t get permission from the original law journals to do this, and they’re complaining.

She made a mistake by not getting permission. She was young, and she didn’t know, but she works for a firm that claims it’s “the leader in protecting and enforcing intellectual property rights.”

The attorneys in the IP department didn’t know what the marketing department was doing. And so it just slipped by everyone.

What the outside world sees is that the firm has troubles keeping its own house in order, and might not be the world’s best source of advice.

In this article published in the ABA’s Law Practice Magazine, Ari Kaplan (principal of Ari Kaplan Advisors) gives lawyers some pointers on how to get noticed.

From the article:

Getting published is one of the best business development tactics for lawyers. It offers direct and indirect benefits ranging from expanding your network to building name recognition. More important, however, is the impact that writing for publication has on enhancing your reputation, establishing your expertise and spotlighting key issues that affect your target markets.

I was reviewing amicus briefs for United States v Williams when I found something interesting.

Compare the type from this brief prepared by Winston & Strawn:

To the type from this brief submitted by the American Center for Law & Justice:

It looks like Winston & Strawn — which claims to be “among the most technologically advanced law firms in the world” — doesn’t know how to set type quite right, or doesn’t care to.

Eugene Volokh offers this criticism of the respondent’s brief in United States v Williams.

Volokh mentions the brief’s “remarkably shoddy writing,” and then presents some excerpts from the brief to make his point.

I took a look at the brief, and I agree with Volokh’s assessment, but not with the excerpts he chose. If I taught a class on legal writing, I’d use this brief. I’d use it to demonstrate the importance of having an editor (or a colleague) review a brief before it’s sent to the printer.

Below are some excerpts I’d expect students to identify as flawed (and why).

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From page 9 of the brief:

“Petitioner is incorrect for several reasons. The Section captures protected speech simply because a speaker can offer or solicit, without any intended benefit (trade, barter, sale, or money) materials, which are legal, and still be arrested for failing to use sufficiently descriptive words to identify the materials he or she is offering or soliciting.

What this claims (because the author used which in place of that) is that MATERIALS ARE LEGAL!

Here’s how the second sentence could be set to convey what the author intended:

The Section captures protected speech simply because a speaker can offer or solicit, without any intended benefit (trade, barter, sale, or money) materials that are legal, yet still be arrested for failing to use sufficiently descriptive words to identify the materials he or she is offering or soliciting.

Also from page 9:

The Section creates significant risk of suppression of ideas because the only way for a person to avoid a possible violation of the Section, due to the confusing, ambiguous words of same, is more prudent to guard silence than to express one’s ideas.

The assertion fails due to poor grammar (i.e., “the only way for a person to avoid a possible violation . . . is more prudent to guard silence . . . .”)

If the assertion were properly worded, it would be preposterous, because anyone can easily avoid violating the Section by simply not peddling or soliciting:

1. an obscene visual depiction of a minor engaging in sexually explicit conduct; or
   
2. a visual depiction of an actual minor engaging in sexually explicit conduct.
   

From the same paragraph:

Simply put, why say anything to another person, which, if albeit mistakenly understood by such person, constitutes the speaker’s desire to offer or solicit real or purported illegal child pornography, can land the speaker in jail with the permanent brand on the speaker’s head that he/she is a pedophile?

This assertion fails due to poor grammar. Yes, we know what the author is trying to say, but the author isn’t saying it well at all.

From the bottom of page 11:

If the Section is not held unconstitutionally overbroad, people will be afraid to even talk about child pornography or about any subject whom a third party audience might think is child pornography even if that is not the subject of the conversation.

From page 14:

However, the Section, as written, addresses not only liability to the offered or solicited material but rather to the ideas and images communicated to the viewer by the representation of what those materials constitute, the First Amendment is necessarily implicated.

Once again, we know what the author meant to say, but the wording is so muddled that I wonder if this was an early draft of the brief, rather than the final version.

From page 15:

Petitioner attempts to distinguish the Brandenburg imminent incitement test as not applying to the type of speech at issue under the Section, however, the Section clearly prohibits “any person” to “knowingly . . . promote[s] . . . obscene materials.”

Here we have a run-on. Also, the second independent clause (beginning with however) needs to be reworded to be sensible:

. . . the Section clearly prohibits “any person” from “knowingly . . . promote[ing] . . . obscene materials.”

Also from page 15:

Although in Free Speech Coalition, the court contrasted the type of speech covered in Brandenburg with speech that has a “significantly stronger, more direct connecting” to “illegal conduct,” such as “attempt, incitement, solicitation, or conspiracy,” the principals of Brandenburg did not change and certainly, Free Speech Coalition did not overrule Brandenburg.

This must be from a draft. No good attorney would misquote the Supreme Court like this, or quote it so awkwardly. Certainly, not in a brief for the Court.

Also from page 15:

Petitioner also disagrees with the lower court’s conclusion that the term “promote” speech is so dissimilar from the term “advocacy” speech as to render the Brandenburg case inapplicable to the instant case.

Again, this must be from a draft. No good attorney would misquote the Solicitor General like this.

From page 16, another run-on, and then a fragment:

However, rules of statutory construction are only to be invoked as aids to the ascertainment of the meaning or application of words otherwise obscure or doubtful, they have no place, as this Court has many times held, except in the domain of ambiguity.

But where the act is clear upon its face, and when standing alone it is fairly susceptible of but one construction, which construction must be given to it.

From page 17, a singular/plural disagreement and some more confusion about when to use which and when to use that:

Moreover, there is a fourth category of individuals the Petitioner totally ignores — one who neither has, nor wants to provide or receive, any illegal child pornography material, but who inarticulately offers or solicits material which another listening person believes does constitute illegal child pornography.

Which is followed by another singular/plural disagreement:

This argument turns basic fundamental tenets of law on its head.

Which is followed by another preposterous assertion:

If a person lies, brags or exaggerates about what he/she has to offer, or wants to acquire, there is a total absence of any criminal intent.

On and on it goes for the remaining 15 pages: error after error after error. It must be a draft.

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I don’t understand. The four attorneys who prepared this brief must know that lots of folks — professors and law clerks and judges and lawyers and reporters — are going to give it a read. In this case, they should be doing their very best work, right?

The Volokh Conspiracy is hosting this debate about whether it’s polite to criticize a brief.

An interesting opinion piece in yesterday’s paper offers an intriguing idea on how to help make sure youngsters don’t get hooked on bad weed (as in tobacco).

The piece was written by David Adams, a partner at Venable LLP, and former counsel for the FDA.

Give the piece a read. It’s well written and — as I say — it presents an intriguing idea to promote the common good.

Compare it to this piece authored by another partner at Venable.

Quite the contrast, wouldn’t you say?

All writers need editors, but some have a much greater need than others.

It’s a Sunday afternoon and I make a quick run to the grocery store. Just as I pull in, one of those fancy Porsche SUVs pulls in beside me. I get out and give it once-over, when I notice an interesting vanity plate hung on it — WSN Law.

Hmmm . . . . I’ve never heard of WSN. When I get home, I check out the domain: wsnlaw.com. Sure enough, there’s such a domain, but it’s parked.

I do some research, and then I find out what WSN law is: it’s Wineberg Simmonds & Narita. So I look the firm up in Martindale. According to Martindale, the firm doesn’t exist.

I do some more research, and I find this (in a local business directory):

What do you think of that?

An interesting story in today’s paper about Raymond Carver, “one of the most celebrated American short-story writers of the 20th century.”

In a nutshell, Carver became a sensation after a collection of his stories was published in 1981. Authorities said he helped revitalize the short story; they said he helped spearhead a style known as minimalist.

But Carver wasn’t a minimalist at all. No, he was the sort (attorneys, are you listening?) who would rather use 25 words to say what could be better said in five.

So, why was he known for his minimalist style if he was so expansive? Because of his editor — Gordon Lish — who applied “editorial magic” to Carver’s work (as when he whittled it down to its essence).

Read the interesting story in the paper if you like. Compare Carver’s long-winded and unfocused ending to a story to the succinct snippet that Lish made of it.

And read about Carver’s anxiety, about why he pleaded that his collection of short stories not be published because — “oh my gosh!” — a skilled editor had altered what he had written.

Which brings us to this: what the heck does any of this have to do with attorneys as authors, or law firms as publishers?
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I’m an editor, and my specialty is attorney-authored articles, like client alerts and law review articles and op-eds and such.

I look for clients. I read attorney-authored articles. I find one that looks like its author was being paid by the word — the more the better — or the author doesn’t get the distinction between which and that or has no idea what audience analysis might be or why you’d use it when writing rather than speaking. Then, I offer the assistance of a skilled and experienced editor.

I contact the verbose or grammar-deficient attorney, or the one who thinks every reader is a judge on the job (and needs abbreviations like IRS and SEC clearly explained). Then, I offer him or her the assistance of a skilled and experienced editor. Given how attorneys are judged by what they write, this should be an easy sell, right?

Not at all. At least nine times out of ten, I’m told some equivalent of “buzz off. I’m a hot-shot attorney at a great big law firm. You’re a nobody, and I don’t need any assistance from nobody.”

It’s as if I shined shoes. Here comes some attorney getting ready to get on stage in front of lots of important people, but I see his shoes are sorely in need of some glow. I break out my kit, and get ready to do my magic, when the attorney recoils in horror.

And I know what’s going on: the attorney would rather protect his ego than look good.

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You must know that old saying about the attorney who represents himself in court. He has got a fool for a client. Ditto for the attorney who thinks he can serve as his own editor.

An interesting story in today’s paper about legal marketing. It’s about those sponsored links that appear on the right side of Google search results.

Guess what one of those links cost? Some cost pennies, but some links — particuarly those touting legal or financial services — cost over $50 each and every time they’re clicked (according to CyberWyre).

It doesn’t matter whether the link is clicked by a college student doing research for a term paper, a rival who wants to see how many times he can click a link in one minute, or a prospective client desperate for help: the cost for each click ranges from pennies to better than $50, depending on the search term. If the term happens to be new york mesothelioma, the cost is $58.44, as this is written.

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The characters in Spy v. Spy come to mind. Picture them clicking on each other’s links over and over and over, as they strive to end their long struggle!

Thelen Reid is sitting on top of $500 billion!

How can that be?

Here’s the deal: The Social Security Administration collects taxes on behalf of workers — including those using bogus SSNs. Rather than put money into bogus accounts, the SSA puts all the money for bogus SSNs into something called the Earnings Suspense Account. Given the dramatic rise in the number of workers using bogus SSNs, there’s now over $500 billion in that account!

So . . . how does Thelen Reid get to sit on top of all this money?

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