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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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.

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?

There was some noise this week about a revision to an Arkansas law (9-11-102(b)(1)), passed last March, that — on its face — allowed children of any age to get a marriage license, just so long as they had their parents’ permission. The law contained the following:

In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage.

What the author of the bill intended was a law prohibiting people younger than 18 from getting married in Arkansas, with an exception for pregnant girls. They could get married if their parents consented. Somehow (and no one seems to know how it happened) the phrase “who is pregnant” was changed to “who is not pregnant.”

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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?

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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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.

Marcia Pennington Shannon of Shannon & Manch (consultants to many large law firms) authored this interesting article for Legal Practice Magazine. It’s an interview with Ross Guberman, principal of Legal Writing Pro, a consulting firm that teaches legal writing. In it, Guberman lists the top four problems that partners have with the writings of their associates:

• Poor structure/rambling organization

• Passive voice/awkward sentences/ambiguous clauses

• Clutter/wordiness

• Grammar/usage/proofreading/ attention to detail

What does this tell us about what’s not required to enter law school?