Set in Style

Here’s what can happen when an attorney who writes one way all day is asked to write a client alert, but he doesn’t (or can’t) take the time to shift gears first, to go from his usual voice (formal and passive) to something livelier. If he can’t make the shift, the alert could start like this:

If expressly permitted by a corporation’s certificate of incorporation through a “blank check” provision, a corporation’s board of directors may authorize a new series of preferred stock by adoption of a resolution setting forth the rights and preferences of such preferred stock.

That’s the first line in this alert. It’s stuffy and old-fashioned. It sounds more like the start of a brief than a client alert. It doesn’t sound like it’s meant to attract business.

What would it sound like if it was meant to attract business, if that was its main purpose?

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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?

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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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?

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.

Here’s how the heading for this client alert (a PDF file) appears on a computer that doesn’t have a particular font installed:

 

Whoever produced the alert (probably) imagined that the heading would appear like this:

 

Here’s how some of the body for the alert appears on that computer:

 

Whoever produced the alert (probably) imagined that the body would appear like this:

 

What went wrong? Whoever produced the alert made a common mistake. He figured that if the alert looked good on his computer, it would look good on all computers.

How to avoid such a mistake? Simple. Just embed required fonts when you create the PDF version of an alert. How? Here’s how.

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If your firm claims a commitment to excellence in all it does, don’t blow it by publishing alerts that are so far from excellent. That makes it seem as if your firm’s staff doesn’t know how to use common computer applications; they don’t pay close attention to detail; they don’t take pride in their work; and it makes the attorneys who authored the alert seem careless — as if they don’t bother to look at published versions of their work.

You’re a lawyer and you want to write about the Securities Exchange Act of 1934 (the “Act”) or the Securities and Exchange Commission (the “SEC”), so you define some abbreviations up front. That way, when you write, “The SEC is investigating so-and-so for some violation of the Act,” people know exactly what you mean (without doing more reading than necessary).

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I just reviewed this client alert that (not which) was published by Winston & Strawn. It has some good qualities, and some not-so-good qualities.

What struck me first about this alert was the typography. While most firms make the mistake of setting body copy in a sans-serif face, Winston & Strawn’s alerts have a much more professional appearance: heads are set in a sans-serif face, and the body copy is set in a serif face.

The second thing that struck me was the complete lack of hyphenation to justify the copy. (For some reason, law firms just don’t like to justify copy the way the professional publishers do.)

The third thing that struck me was the verbiage at the bottom of the alert. To obtain the alert, I simply clicked a link at the firm’s Web site. So it seemed very odd that the verbiage offered me a way to stop receiving alerts from the firm.

Right above that verbiage was this curious comment:

If you would like to review your contact information, please click here.

I clicked the link, and the following appeared:

We’re sorry, but something seems to have gone wrong:

The contact and event information could not be decoded.

If you got to this page by clicking on a link in an email, then the link information in the email may have been split across two lines.You may be able to copy the link from the email and paste it into your browser.

OK. The firm thinks it e-mailed the alert to me. So I did this simple test. I clicked the firm’s logotype at the top of the alert, and guess what? Nothing happened! (Had this alert been produced by pros, the logotype would link to the firm’s Web site.)

I went back to the firm’s Publications page and clicked the PDF icon for the alert, and guess what? The PDF version of the alert is an HTML file!

Just for the heck of it, I chose to view the PDF version of another alert*, and guess what? No links at all! Not even to the firm’s Web site.

Winston & Strawn’s a firm with some chutzpah: it claims it’s one of “the most technologically advanced law firms in the world.” It’s alerts say otherwise.
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* In a tribute to the days before the IBM Selectric became so popular, that alert uses underlines, rather than italics,for emphasis.

So they don’t write stuff like this:

The government has also increased its emphasis on charging individuals with FCPA violations, including seven so far this year.

or like this:

As you may have already heard or read, a Durable Power of Attorney (DPA) is a very important and beneficial document to have available, not only as you age, but at other times as well.

or this:

In short what the amendment provides if a user can not find the work’s creator and they tweak the work they have cart blanc to use an artist’s work without any fees being paid even when the creating artist identifies themselves they do not even have to stop infringing.