Set in Style

Last November, I wrote this post about an article (titled “Plain words please courts”) that appeared in Construction Law. The article was written by Michael Mendelblat and David Nitek of Herbert Smith.

Today, it’s the most popular article at Linex Legal, a clearinghouse for attorney-authored articles.

Yesterday, the New York Times ran this article by Adam Liptak about United States v. Arnold.

If the case was so interesting that the Times gave it space, then (I thought) Big Law attorneys who focus on privacy rights must be giving it a good deal of attention.

I guess I was wrong. After so much searching, all I could find was this one client alert published by Proskauer Rose.

Here’s a fine example of why large law firms need editors. Written by “one of the country’s most well-known art lawyers,” it discusses orphan works, copyrighted works whose owners cannot be reached:

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.

From the same article:

The copyright office sought comments to address this issue they laid out the issue as they saw it as follows (their complete statement can be found in the Federal Register Volume 70, Number 16 or at, http://www.copyright.gov/fedreg/2005/70fr3739.html).

Now when you catch an infringer, they know they are caught, have exposure and they will generally negotiate a settlement, if this amendment becomes law you can be sure every infringer caught will claim the work they copied had no name on it so it is an “Orphan Work” so they are not liable. Instead of coming to a compromise it will be “so sue me.”

While we strongly encourage registering you copyright for many reasons having a registration might be of little help if your name has been removed by the infringer (or earlier) because you can not search the copyright office for images.

An editor can make sure something like this isn’t published until it’s been polished. That makes the attorney look good, and it helps the firm look like it’s on top of things, that it pays attention to detail.

That’s some pretty good insurance, is it not?

What can an editor do for a law firm?

Consider the intro to this newsletter published by a law firm that specializes in employment law:

A popular, and altruistic, employee benefit some employers provide is a leave-sharing program. An employer-sponsored leave-sharing program allows an employee to donate accrued hours of paid vacation, or personal and potentially sick leave for the benefit of other employees who are in need of taking more leave than they have available.

What’s wrong with this intro? There’s that very curious phrase: potentially sick leave. A comma is missing (right after the curious phrase). The careful reader can wonder how leave-sharing programs are so popular if they’re only offered by some employers, and every reader can wonder how a benefit can be altruistic.

What might a skilled and experienced editor do with this? Given the freedom to do a heavy edit (which is needed here), an editor could transform that intro into this:

More and more employers are offering leave-sharing programs to their employees. These programs allow employees to donate earned vacation time, as well as personal and sick days, for use by other employees who need more leave than they have earned.

Let’s consider the changes and the reasons for them.

1. The edited version contains 20% fewer words than the unedited version. (Why write who are in need of taking more leave when you could write who need more leave?)
2. The edited version is more readable than the unedited version. The edited version scores 55.4 on the Flesch Reading Ease scale; the unedited version scores 23.3.
3. The edited version is properly punctuated.
4. The edited version doesn’t claim that benefits (rather than the employers who provide them) can be altruistic.
5. That curious phrase (potentially sick leave) is gone.

That’s a good example of what an editor can do for a law firm: improve the quality of its publications.

A few weeks ago, a friendly reader asked:

What’s up with the new tendency to hypenate all modifiers, including (and especially irritating) the hypen-forbidden ”ly” words (e.g. family-friendly policy = WRONG)  The lawyers and marketers definitely need a little schooling on this!

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Consider this intro to a blog post written by a well-known professor of economics:

The growth of large government managed funds during the past few years has been spectacular.

Can you spot the problem with this sentence?

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Here’s the intro to an article published by a great, big law firm:

In a recent high profile US case, a large securities firm had to pay out millions of dollars in settlement to the US equivalent of the Financial Services Authority because the firm had not disclosed copy emails in arbitration claims because they thought they were no longer in their possession as their computer servers had been destroyed in the 9/11 terrorist attacks.

Whew! That tongue twister contains 63 words, has a a singular/plural disagreement (the firm/they), and scores a miserable 7.2 on the Flesch Reading Ease scale. The large securities firm isn’t identified, and the reader is left wondering what “copy emails” could be.

If an intro is to inform readers what an article is about and to encourage them to continue reading, then this intro fails.

So . . . what might a skilled and experienced editor do with this intro? Perhaps this:

Morgan Stanley was ordered to pay $12.5 million to the Financial Industry Regulatory Authority, the U.S. equivalent of the Financial Services Authority, because the firm failed to produce e-mails during arbitration claims. The large securities firm had claimed that the e-mails were destroyed in the 9/11 terrorist attacks.

The number of words has been reduced by better than 20%, and the edited intro scores 21.4 on the Flesch Reading Ease scale. The mysterious firm is identified, as is the governmental agency that fined it, meaning that the article is much more likely to be found by those searching for it. And it’s much more likely to be read.

If your firm is like most large law firms, then your client alerts, newlsetters, and advisories aren’t doing all they can to help attract new business.

Why? Because they’re not making it convenient for potential clients to contact the authors of those publications, to learn more about them, or to learn more about your firm.

Consider a large law firm’s most recent Consumer Products Marketing newsletter.

Now, suppose this newsletter comes to the attention of a potential client. She wants to learn more about the firm — let’s say she wants to know whether the firm has an office in San Francisco — so she clicks the firm’s logotype at the top of the newsletter. Nothing happens.

What should happen is this: clicking the logotype should bring up the firm’s home page. To the interested reader, that would be a nice convenience.

Let’s say the potential client wants to contact either of the newsletter’s two editors. Their e-mail addresses are displayed at the bottom of the first paragraph, but they’re not set as links ( like this ).

So, rather than just click an e-mail address to fire off a quick query, the reader has to:

1. copy an address,
2. go to her e-mail client,
3. start a new message,
4. paste the e-mail address in the new message,
5. write a subject for the message, and then
6. write the message.

That’s not a big deal, but it’s not as convenient as it could be.

Why not make it easy for potential clients to contact your firm or learn more about it? Why not set links in your PDF files? That way, a reader can just click a link to contact your firm.

It’s so easy to do. And it’s so worthwhile, because potential clients are more likely to contact your firm if you make it convenient for them. (You want your firm’s on-line presence to attract inquiries from potential clients, right?)

And it shows that your firm — unlike so many others — knows how to use features that have been available since the turn of the century: a potential factor in a potential client’s first impression of your firm.

If you assume that the audience for your firm’s client alerts and newsletters consists of pretty busy people, then you’ll make sure those client alerts and newsletters are written for pretty busy people, right?

Experience tells us that some lawyers use far too many words when they write, but excessive verbiage is just the sort of thing that drives busy readers away. So, one thing that editors of client alerts and newsletters need to do is this: get rid of unnecessary words.

One way to do that — and enliven the copy — is to change instances of present perfect tense to simple past tense.

OK. You haven’t taken middle-school English for quite some time so you don’t recall what those two tenses are. Here are a few examples (taken from this client alert):

Present Perfect: The SO sets out the Commission’s preliminary conclusion that Rambus has illegally charged unreasonably high royalties for some patents relating to DRAM technology.

Simple Past: The SO sets out the Commission’s preliminary conclusion that Rambus illegally charged unreasonably high royalties for some patents relating to DRAM technology.

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Attorneys tend to spend their days writing a certain way — the way of contracts and briefs, provisions and terms, agreements and statements of fact, all for a small audience of judges and clerks and other counsel.

Now, suppose you’re an attorney. And suppose that — rather than writing for a small audience of other attorneys who expect you to provide great detail on something specific — you’re going to write a client alert (or a magazine article, perhaps) for a very large audience that wants to read something interesting.

Then you need to adjust your style. Here’s why:

When you write legal matter, your audience is captive and limited. You don’t have to be interesting. But when you write copy to attract clients — copy for newsletters, alerts, articles, etc. — you must be interesting.

And that’s because you need to draw the audience. When it comes to client alerts and magazine articles, unlike briefs, nobody HAS TO read what you wrote.

Consider the following snippet from a newsletter recently published by a Big Law firm:

Consider the first sentence under the head:

Companies and individuals are becoming increasingly conscious of their carbon footprint—a measure of carbon dioxide emissions, which are believed to contribute to global warming, attributable to their activities.

And note the use of a single em dash to set off the parenthetical expression (i.e., a measure of carbon dioxide emissions, which are believed to contribute to global warming).

The problem here is that an editor didn’t bother to review this newsletter before it was published. Had an editor reviewed this, an old rule would surely have been applied: one to separate; two to enclose.

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