Set in Style

Here’s the last paragraph of a decision issued yesterday by the Seventh Circuit Court of Appeal. It was written by Judge Richard Posner, who is so well known for his way with words:

A note, finally, on advocacy in this court. The lawyers’ oral arguments were excellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary — for use by specialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-specialized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English, as we hope this opinion has demonstrated. The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.

Look closely, and you’ll see that the first paragraph of the decision contains a grammatical error as well as an error in punctuation.

Do you know an attorney whose writing is so good that it rates an award? Do you know a law firm that publishes a newsletter that’s so good the firm deserves an award? How about a law firm that deserves an award for one of its advertisements, or for its quarterly magazine? How about a law school student who deserves an award for his or her legal writing skills?

Then get an application for the 2008 Burton Awards, fill it out, and send it in.

The deadline is 8 February.

Let’s suppose you’re a successful attorney, a senior partner at a great big law firm who makes $600 an hour. You surely don’t need any help with your writing, right?

OK. Let’s suppose you’re a young associate. You’re in the early stages of your career. One thing that distinguishes you from most other attorneys is your ability to write clearly, concisely, and persuasively. You’ve got a knack for it, despite getting lousy grades in your legal writing classes.

And let’s suppose you know a senior partner at your firm who makes $600 an hour, but who’s a lousy writer: someone whose writing is pompous, full of convoluted phrases, and excess verbiage. As a young associate, you really can’t offer any advice to this senior partner, can you?

But you can do this. You can have the Mystery Matador tell the senior partner what’s wrong with his writing. Just take some of the senior partner’s pompous prose, feed it to the Matador, and enter the senior partner’s e-mail address. The Matador does an objective evaluation (it doesn’t know a $600-an-hour attorney from a 1L), and sends that evaluation to the senior partner.

Of course, it won’t do a darned bit of good. If the senior partner made it so far with such poor writing skills . . . .

Want to learn how to write so well that judges are inclined to decide in your favor? Then consider learning how from one who knows: lawyer and best-selling writer Gary Kinder.

Here’s the scoop on some upcoming CLE seminars Kinder will be holding.

And here’s the scoop on some other legal writing and editing seminars Kinder will be holding.

Can’t get to one of the seminars? Then consider Kinder’s on-line course on advanced legal writing and power editing.

In English, as in Law, there are accepted ways of doing things. If you deal in both subjects (English and Law), you should find out what those accepted ways are, and then adhere to them (unless you have one heck of a good reason for deviating from them).

Consider the following intro to this client alert:

Six federal agencies have jointly issued final rules imposing identity theft-related requirements on financial institutions, creditors, credit and debit card issuers, and users of consumer credit reports (the “Rules”).

What’s out of kilter is the hyphen in identity theft-related requirements (as well as the placement of (the “Rules”) and the lack of hyphens in credit- and debit-card issuers).

How should the phrase identity theft-related requirements be set? One good way to answer that question is to see what a reference like the Chicago Manual of Style has to say about it.

Here’s what it says:

A phrasal adjective (also called a compound modifier) is a phrase that functions as a unit to modify a noun. A phrasal adjective follows these basic rules: (1) Generally, if it is placed before a noun, you should hyphenate the phrase to avoid misdirecting the reader {dog-eat-dog competition}. . . . (6) If a phrasal adjective becomes awkward, the sentence should probably be recast.

The production editor of this alert (if you publish alerts, you do run them by a production editor before they’re published, right?) shouldn’t have missed this one at all, especially since the alert makes repeated reference to an “Identity Theft Prevention Program.”

What he or she should have done is follow the Manual’s advice to recast the sentence, perhaps like so:

Six federal agencies jointly issued final rules (the “Rules”) imposing requirements on financial institutions, creditors, credit- and debit-card issuers, and users of consumer credit reports to identify possible instances of identity theft.

Most attorneys write client alerts and such in this fashion: the first draft is the final draft.

Here’s what one famous writer had to say of first drafts:

“The first draft of anything is shit.”

More advice from the same writer:

“I write one page of masterpiece to ninety one pages of shit. I try to put the shit in the wastebasket.”

And now some attorney is wondering, “who cares what one famous writer had to say? Writing client alerts and such is a far cry from writing a novel.”

Obviously!

Still, whether they’re writing client alerts or novels, amicus briefs or sales pitches, the best writers are those who are willing to murder their darlings.

In this article, Dahlia Lithwick calls this opinion, written by Judge Richard Posner, “the most readable piece of legal writing in history.”

I wonder what that’s all about.

Consider the following two sentences:

“The quickest way to get there is through this door.”

“The fastest way to get there is through that door.”

The first regards time; the second regards speed.

Suppose you’re in a rush, and you forget the big difference between quickest and fastest. That can happen when you’re pressed for time and have too much to do.

Readers don’t know that you were in a big rush. They don’t know that you didn’t have ample time to write a client alert. And they don’t care. They just see what you wrote, and conclude: you pay attention to details and distinctions, or you don’t.

Anything you write could form a potential client’s first impression of you. That’s given. Make mistakes, and a potential client’s first impression of you is more likely to be “this writer seems a bit careless” than less likely to be “this writer does well under pressure.”

Readers see your mistakes (once they’re published). The fewer (mistakes), the better.

Robert J Michalik, Esq., founder of RegulatoryPro.com, “a consulting firm providing general and specialized services to the biopharmaceutical and medical device industries,” will be hosting a Webinar on writing skills for regulatory attorneys.

From the announcement:

As every Product Development Manager knows, even the best programs are hampered by deficiencies or gaps in data that exist at the time of reporting or submitting data to an Agency (e.g., FDA, EU EMEA, EU Notified Body). The key skill is knowing how to present required information in a way that will increase, not jeopardize the likelihood of timely project success. Fortunately there is an array of proven legal and technical writing techniques and strategies exist to help guide you and the team to success. Do you know them?

In this webinar, you will learn the writing skills that will enhance your chances for success even if some of your test results or other supporting information are somewhat lacking. The quality and regulatory professional must know how to structure a written argument that highlight “good” data while also diminishing the negative impact due to data gaps or deficiencies.

In the case of Watson v. United States, the Supreme Court opted for the “everyday meaning” of the word “use” to rule in favor of Michael Watson who, the government argued, used a gun during a drug-trafficking crime. The court figured that “receiving” a gun is not the same as “using” it.

From the opinion, written by Justice Souter:

A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from
hearing that the boy used the granola.

Also from the opinion:

. . . law depends on respect for language . . . .