Mark Herrmann — A Curmudgeon Offers His Advice
So, you’ve earned your J.D., and you’re going to be a lawyer. Good for you.
Let me give you a bit of advice — before you go to work, get a copy of a small book packed full of invaluable advice: The Curmudgeon’s Guide to Practicing Law.
Written by Mark Herrmann, the Guide covers a range of topics that aren’t covered in law school: how to work with a secretary . . . err . . . administrative assistant: how to take a deposition; how to please clients . . . . In short, the Guide covers many of the secrets to a new (or any) lawyer’s success.
Heck! You’ve been an attorney for some years, and now you’re working on your first appellate case. You’re getting ready to write the merits brief. Before you do, stop! Get a copy of the Guide and read Chapter 1: How to Write.
It could make all the difference.
How did the Curmudgeon’s Guide come about? What inspired you to write it?
A dozen years ago, a summer associate at Jones Day told me that it must be fascinating to be a partner at the firm, because that position gives you the opportunity to edit briefs and memos in a wide variety of substantive areas. I told her that my job was in fact fascinating, but that editing wasn’t the fascinating part. To a large extent, editing is just telling different people, over and over again, to shorten sentences, shorten paragraphs, add topic sentences, eliminate prepositional phrases, use the active voice, and so on. The process is so formulaic that it makes you want to scream: “Do this! Do this! For heaven’s sake, don’t do that!”
The summer associate said that she’d never heard those rules explained just that way, and she thought it would be helpful if I put my rant about writing down on paper. I did, and ultimately “How To Write: A Memorandum From A Curmudgeon,” appeared in the ABA’s Litigation journal. That was a short piece written in the voice of a terribly jaded older lawyer — sort of a cross between Clarence Darrow, Groucho Marx, and Attila the Hun. The ABA promptly asked me to write another article in the voice of the Curmudgeon, explaining how to succeed as an associate, which I also did. By 2005, I realized that there were a few more things that the Curmudgeon could usefully rant about, so I spent a bunch of weekends scribbling on a yellow pad in my neighborhood coffee shop. The Curmudgeon’s Guide to Practicing Law was published in March 2006 and is now in its sixth printing, with over 20,000 copies sold.
In the Guide, you write “Any child can write a persuasive brief,” and then you offer a solid formula for a brief. Beyond that, what are the ingredients of the most persuasive and most effective briefs?
Find the jugular — the winning argument for your side — and go for it in the shortest, simplest way possible.
That’s it.
No extra facts. No extra law. No extra words. No hysteria.
Just the shortest, simplest presentation of a clean, compelling argument.
For most legal briefs, the preferred writing style is “modern American snowplow.” Most briefs should be absolutely stripped down and basic.
There’s an audience for briefs — the law clerks and the judges who read them. What does the author of a brief need to keep in mind with respect to that audience? What does the audience want in a brief, and what does it not want?
The audience reading legal briefs is busy. Screamingly busy.
In some trial courts, a single “law and motion” judge may hear thirty to fifty arguments on a typical Monday morning, eat lunch, and then hear emergency motions in the afternoon. After the emergency motions are over, the judge starts reading the thirty to fifty sets of briefs presenting questions the judge will have to decide on Tuesday. And so on for the rest of the week.
That audience is not interested in reading a long, irrelevant chronology: “Plaintiff filed the complaint on January 1. Defendant removed the case to federal court on January 30. Plaintiff filed a motion to remand on February 15. The federal judge remanded the case to this court on April 12.” Unless those facts and dates are critical to the issue before the court, the judge will hate the writer before the judge gets to the bottom of page one. That’s no way to win.
The audience for a legal brief wants to know two things: What’s the issue, and why do you win? Explain those two things, simply, and you’ve hit the mark.
What’s your view of using Plain English, to the extent possible, in a brief?
Use it.
Why do so many authors of briefs tend to use more words, and more obscure words, than necessary? Why do so many write in such a convoluted style, rather than in a more simple, straightforward style? Are they hurting their own cause?
They’re absolutely hurting their own cause.
The poet William Butler Yeats was known for employing his own personal mythology, which was cryptic and required decades to decipher: ”Turning and turning in the widening gyre, The falcon cannot hear the falconer.”
Briefs aren’t poetry, and lawyers aren’t William Butler Years. Briefs can’t be cryptic, and they can’t require any time whatsoever to decipher.
And why do so many lawyers write in a style that hurts their cause?
Maybe they’re just following tradition; they learned from people who wrote poorly and they won’t change the forms. Maybe they don’t have time to do the ruthless editing that’s needed to prepare a short, simple brief. Maybe they’re so busy handling cases that they haven’t had time to think about what approach is most likely to work.
I really don’t know why so many lawyers write poorly, but I surely agree with you that most of them do.
Are the ingredients the same for merits and reply briefs?
The writing style is exactly the same.
The approach is somewhat different, because the briefs serve different purposes.
Many reply briefs simply repeat the arguments raised in the opening brief. That’s a terrible waste of opportunity. A good reply brief doesn’t repeat arguments, but rather extends them: “We said this; the other side said that; the other side is wrong for the following three reasons.”
The style is again “modern American snowplow,” but the arguments have to be presented slightly differently, because of the different nature of an opening brief and a reply brief.
When it comes to amicus briefs, courts want to hear what they haven’t heard from the parties. Yet, most amicus briefs are a rehash of what the parties said in their merits and reply briefs. What makes for a good, effective, and influential amicus brief?
You’re right to focus on amicus briefs. By the time a case lands in the U.S. Supreme Court, the parties generally have plenty of amicus support. In the lower appellate courts, however, parties often overlook the value of having amici curiae support their cause.
The first task is thus not writing the amicus brief, but knowing where to look to find amici that might be interested in supporting your side of the case. Finding amici is an important skill unto itself.
Once the amici are lined up, you can start thinking about the nature of the briefs.
Amicus briefs can serve many different purposes.
Sometimes, the substance of the brief is less important than the identity of the amici: Who they are speaks so loudly, it doesn’t matter what they say.
No matter who the amicus is, however, the brief should bring a new perspective to the case; rehashing a party’s position doesn’t add any value. At the same time, amici are not permitted to inject new arguments that weren’t made in the trial court. A good amicus brief thus tries to present a new perspective on an existing issue in the case — a policy implication that the parties didn’t focus on, the practical application of a proposed legal rule, or some such thing.
Also, if multiple amici support one party’s position, it’s important to coordinate the briefs. It’s bad enough to have one amicus brief rehash a party’s position, but it’s intolerable if three amicus briefs all say the same thing.
Your firm has a full-time writing instructor — someone who has a degree in English rather than law. How much of an edge does that give your firm?
The edge goes to the lawyers with superior analytic and writing skills and the greater dedication to task.
Anything that a law firm does to improve in those areas will give it an edge.
Jones Day’s writing instructor is just one part of a training program meant to help students fresh out of law school become talented lawyers and trusted advisors to major clients.
Employing a non-lawyer writing instructor is one way to approach training, and we think it works, but there are surely other ways to improve writing skills. The key is to be sure that junior lawyers are receiving intensive editing, so that they internalize the fundamental rules of writing.
You have lots of experience working with newly-minted attorneys. Given your experience, if you could change one thing about the law school curriculum, what would that be?
At this point, I’m pretty far removed from the law school experience. I understand, however, that there are still a few schools that employ third year law students to teach legal writing to first year students. That’s a bad idea. Law schools should spend the money to hire actual legal writing professors. Writing is one of the key skills for successful lawyers, and law schools should devote serious effort and resources to teaching students that skill.
Is there any other advice you’d give to new associates?
There are two keys to success as a new lawyer.
First, always do the very best that you can do. If you do something poorly, no one will assume that you could have done it better, if you’d only put your mind to it. Everyone will assume that your work product is the very best that you can do. So make it that way.
And, second, do unto others as you would have them do unto you.
Think about every project that you do from the other person’s perspective, and then try to treat the other person with respect. You wouldn’t want to be hit with a project late on a Friday afternoon, if it was possible to avoid it. So don’t send a draft brief to a partner (or a client) late on Friday with a note that you decided to “give them the weekend to look at it.” Treat everyone else with the respect that you personally would like to be given.
Those are the two secrets to success.
