Set in Style

The May 2008 edition of the ABA Journal has this interview with Bryan Garner and Antonin Scalia discussing topics from Making Your Case: The Art of Persuading Judges.

Here’s some of the best advice the book has to offer (about writing briefs):

Banish jargon, hackneyed expressions and needless Latin. By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise. A nexus, for example, is nothing more or less than a link or a connection. And what is the instant case? Does it have anything to do with instant coffee? Alas, to tell the truth, it’s no different from this case or even here.

Write normal English. Such as a demonstrative adjective (such action) can almost always be replaced with the good old normal English this or that. And hereinbefore with earlier. And pursuant to with under. The key is to avoid words that would cause people to look at you funny if you used them at a party. Pretend that you’re telling your story to some friends in your living room; that’s how you should tell it to the court.

Note that the second paragraph has a few incomplete sentences. An oversight? A hint? Who can say?

I don’t know about you, but I find it a mite odd (sophomoric) when a law firm — especially a great big one — bothers to list each and every instance of someone at the firm being quoted in a newspaper or magazine. I find it especially odd when the list includes quotes that appeared in some small-town newspaper with a circulation of several hundred, or when the most recently published quote is four or five years old.

But I find nothing odd about the importance firms place on quotes from their attorneys, especially when those quotes appear in major papers like the New York Times or the Wall Street Journal, or widely-circulated magazines like Business Week or Forbes. Those quotes can attract business; or they can drive it away.

And so, most big firms have guidelines and procedures for dealing with journalists. Some even offer their partners training on how to respond to questions from journalists. All well and good.

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Review the Standards of Review published by the Ninth Circuit Court of Appeals. From a production standpoint, this is pretty scary stuff. And if you wonder why, just compare them (those published standards) to these published standards.

Brownstein Hyatt Farber Schreck — a firm that boasts “you can rest assured that you’re being represented by a team of seasoned attorneys with the knowledge, relationships and legal skills to help you mitigate even the most complex environmental risk” — says wood is a fossil fuel.

California recently enacted a landmark global warming law, Assembly Bill 32 (AB32), whose goals were to establish state-wide programs designed to combat greenhouse gases and promote the development and use of energy-efficient technologies. Carbon dioxide is the main focus of AB32. Carbon dioxide is produced by the burning of fossil fuels, such as coal, petroleum, natural gas, or wood, and is discharged primarily from exhaust pipes and industrial smokestacks. Because greenhouse gas emissions are directly related to the use of energy, measures designed to conserve energy and reduce greenhouse gas emissions are key, but surely not the entire picture.

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This is a classic example of why law firms (functioning as publishers) need editors. Having an editor review copy before it’s published is nothing less than the application of due diligence.

Note: without an editor, readers might be left with the impression that the firm’s expert attorneys think that most of the carbon dioxide in Earth’s atmosphere comes from exhaust pipes and industrial smokestacks.

In a sense, what Brownstein, et al. is doing with its publications is demonstrating to all (including prospective clients and adversaries) that it doesn’t apply due diligence to all it does, and that’s not good, especially since the firm claims (believe it or not) that due diligence is one of its specialties.

Winstead PC — one of the largest law firms in Texas — does what so many other large law firms do. It advertises that it uses technology — including its “unique data and software applications” — to increase efficiency and to provide “[u]nsurpassed access to critical business and legal information.”

Sounds pretty good, right?

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It’s like David v. Goliath. There’s a big manufacturer. It likes to throw its weight around. It sends a cease-and-desist letter to some Mom-and-Pop shop. It turns out that Pop is a lawyer, and he’s got a formidable sense of humor.

Read Pop’s response to Monster’s claim of patent infringement.

Yesterday, the House passed the Plain Language in Government Communications Act of 2008 by a vote of 376 to 1. The act requires government agencies to use plain language in “Government* documents intended for the public.” The act is also meant to “preserve and enhance the role of English.”

To comply, government agencies may rely on the Plain English Handbook, published by the Securities and Exchange Commission, or the Federal Plain Language Guidelines.

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*Curious it is that, in such a bill, government is set as Government.

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Related News:

This article (published today) describes the massive effort underway at the Veterans Affairs Department to rewrite regulations in plain language.

And this proposal from the SEC would require investment advisers to provide their clients with brochures written in plain English.

Thanks to the Legal Writing Prof Blog for mentioning this article about how law firms are using legal writing instructors to support and train their lawyers.

Let’s see, if lawyers need help with the sort of writing they studied in law school and do every day, then they could well need help with the sort of writing they never studied and do on occasion, and that’s promotional writing: client alerts, magazine articles, blog posts, etc.

And if you don’t think client alerts and magazine articles and blog posts are promotional, then consider this: why do you suppose lawyers take the time to write such things?

The GC for a high tech firm is looking for counsel familiar with this or that. He asks around and he hears about you. Before he takes the time to call you, he asks an associate to do some research.

What does the associate do? The first thing she does is review your firm’s Web site. She looks at your bio, and then she clicks a link to some article you wrote. What she sees after she clicks that link is going to influence her report to the GC.

Suppose she clicks this link and finds a PDF version of a not-so-legible photocopy of an article you wrote. The impression she gets is that your firm is hardly high tech. That impression is reinforced when she realizes the article could have been reprinted with this level of legibility.

Suppose she clicks this link. She’s a mite perplexed because she can’t figure out what sort of file it is. She does some tinkering and finds it’s a PDF version of a not-so-legible photocopy of an article that could have been reprinted with this level of legibility.

Suppose she clicks this link. She already knows that your firm doesn’t identify PDFs as PDFs, so she opens the file in Acrobat. Once again, she finds a not-so-legible photocopy of an article that could have been reprinted with this level of legibility.

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Sometimes it doesn’t matter how good or bad your article is. The impression people get isn’t always from what you wrote, but from what your firm produced. If your firm does a lousy job of reprinting articles you wrote, it makes you look bad. It gives the impression that you’re all-too-capable of missing what’s obvious.

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Let’s look at one more example of a firm that doesn’t much care what sort of impression its publications make on prospective clients. Click this link, and you’ll discover a firm that publishes photocopies, rather than originals, of its own newsletters!

The Blog of Legal Times informs us that Antonin Scalia is going to be interviewed by Leslie Stahl on the 27 April episode of 60 Minutes. Seems as if the camera-shy justice is making an appearance to promote his upcoming book (co-authored by Bryan Garner) Making Your Case: The Art of Persuading Judges.

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Update: The Washington Post has this article about Scalia’s newfound lack of shyness. The the ABA Journal has this interview with Bryan Garner and Antonin Scalia.