Set in Style

In addition to making sure that the articles a firm publishes are free from spelling and grammatical errors, an editor can help make sure those articles are free from factual errors.

Let’s look at a few real-world examples: several articles describing the Supreme Court’s recent ruling in LaRue v. DeWolff, Boberg & Associates, Inc.
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If legal writing is your passion, then you need treatment. Just kidding.

Seriously, if it’s your passion, then you can wear it on your sleeve, or on your head or your back or your butt, or you can stick it on your refrigerator or your window, or you can sip from it or cook with it on. You can walk around campus and cause others to wonder about you. You can make Englicians envious. You can splurge and make your legal writing prof proud.

Interested? Check out the legal writing merchandise at Cafe Press.

In this interview published by Management Consulting News, Tom Sant, author of The Language of Success, describes a writing style he calls Guff:

Guff is another form of pseudo language. This is the mode people use when they want to convince us that they are more intelligent [. . .] than we are. Guff is the language you get from many bureaucrats, senior managers, lawyers, and politicians. It showcases big words, long sentences, lots of passive voice, and convoluted constructions. At the end of it, you don’t know what they’ve said.

Of course, Guff is required for most (but not all) legal writing. But it’s not required for most promotional pieces (e.g., client alerts) written by attorneys.

If you’re an attorney, and you’re used to writing Guff day-in/day-out, then pause before you write your next client alert. Take a moment to think of your audience, and ask yourself: do I want an itsy-bitsy audience (e.g., corporate counselors interested in Rule 204-3), or do I want a much larger audience?If you want the larger audience, forget the Guff.

And, if you feel compelled to write about Rule 204-3, don’t waste your time writing what so many others have already written. After all, who’s going to read the umpteenth analysis of proposed amendments to Form ADV?

Big news this morning: the JP Morgan/Bear Stearns merger agreement is being revised. The motivation? Apparently, a drafting error.

This, from a story about it in today’s New York Times:

One sentence was “inadvertently included,” according to a person briefed on the talks, which requires JPMorgan to guarantee Bear’s trades even if shareholders voted down the deal. That provision could have could allow Bear’s shareholders to seek a higher bid while still forcing JPMorgan to honor its guarantee, these people said.

When the error was discovered, Mr. Dimon, who was described by one participant as “apoplectic,” began calling his lawyers at Wachtell, Lipton, Rosen & Katz to seek a way to have the sentence modified, these people said. Finger pointing over the mistakes in the contracts began as bankers blamed the lawyers and vice versa.

According to Kenneth Adams of Adams Drafting, the error isn’t a big surprise:

. . . dysfunctional prose in M&A contracts greatly increases the likelihood of a mistake going unnoticed.

We consider the doctrine that’s on everyone’s lips: uberrimae fidei.

That’s the opening line of a recent opinion authored by Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, a man widely admired for his wit, humor, and (relatively) unconventional style of writing.

What’s so unusual about that opening line? Not only does it betray a sense of humor, it contains two instances of something lawyers constantly avoid: contractions.

Q: “Why avoid contractions?”

A: “It sounds informal.”

Q: “What’s wrong with that?”

A: “Well . . . it is just not acceptable in such a solemn and dignified profession as the law.”

Q: (Reviewing an amicus brief authored by A.) “I see you often use which to introduce a restrictive clause. Is that acceptable in such a solemn and dignified profession?”

The legal writing region is abuzz with Bryan Garner’s interviews with the justices of the Supreme Court. He asks them about legal writing, and they say what they think.

Before you listen to the interviews, listen to some news. Listen as Senator Clinton is asked about this or that. And listen to her response. Nine times out of ten, her response begins with some emphatic version of, “Well, ya know . . . .”

Grade her as if she was speaking at a Toastmaster’s meeting; i.e., give her a demerit each time she says, “Well, ya know . . . .” Then, listen to Garner’s interview with Ruth Bader Ginsburg and grade it the same way.

Change stations. Listen to Senator Obama say what he thinks. Grade him as if he was speaking at a Toastmaster’s meeting; i.e., give him a demerit each time he says “ah,” “eh,” or “um.” Count the demerits. Then, listen to Garner’s interview with John Roberts, and grade it the same way.

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The Georgetown News-Graphic has this interesting piece (titled “Pleaseth updateth thy language”) about lawyers clinging to the past: using outmoded, cryptic language, going bonkers with caps, emulating Shakespeare, etc.

Here’s an excerpt:

In many ways, we have truly modernized. But in some, we still have an antiquated system. And in no area is this more evident than our persistence in using indecipherable language simply because it’s the way Thurgood Marshall did, the way Oliver Wendell Holmes did, the way John Marshall did, the way John Jay did. Those men were all great legal minds, but they were not supposed to have set (and continue) a template for our legal language for all eternity.

I’m editing a client alert (about laws regarding campaign contributions) when I run across the following:

This bar extends to indirect contributions, for example, reimbursing a corporate employee who makes a contribution from his or her own funds.

This is a fairly common construction in legal writing. But it’s not an acceptable construction. Why? Because it fails to follow the rules.

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Nossaman claims “to uphold the highest standards of excellence.” Do its client alerts support that claim, or defy it?

Consider the grammatical errors in one client alert recently published by Nossaman:

Minimum Wage Increase

Effective January 1, 2008, the California minimum wage increased from $7.50 to $8.00.

The new increase also affects exempt employees because they must receive a monthly salary equal to twice the minimum wage for full employment.

Hourly Rate Threshold for Computer Professionals Lowered

Prior law exempted computer professionals from overtime requirements if the employee is primarily engaged in work that is intellectual or creative and earns an hourly rate of at least $41.00 per hour, indexed for inflation.

Hands Free Cell Phone

Effective July 1, 2008, drivers cannot use a cell phone while driving a motor vehicle unless he or she is using a hands-free device.

California and Federal Military Leave Laws

The California Military leave law requires employers with 25 or more employees to give qualified employees as many as 10 unpaid days off when their spouse is on leave from military deployment.

Update: Do a Google search for Nossaman. Note that, just two days after this post was published, it’s among the top ten search results.

Last year, I wrote this post and this post about the difference between which and that, a subtlety that so many attorneys don’t get.

The Legal Satyricon has this interesting post about what can happen when legislators forget all about the difference between which and that.

Note: Legislatures normally get a pass when they ignore the rules of grammar, but not always. Here’s a story of courts landing on two sides of a dispute created when Congress — the same folks who brought you the No Child Left Behind Act — dispensed with good grammar, as it so often does.

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Imagine this: you’re an attorney drafting an important agreement, but you don’t understand the difference between which and that. A year later, your client learns it has to pay through the nose because of your ignorance.

That, I’m sure, could be most embarrassing. And it could be costly. Just imagine the impression you’ll make on clients (current as well as potential) when they hear that you haven’t mastered what 8th graders are expected to know.