Set in Style

So they don’t write stuff as awkward as this:

“The inclusion of a party’s trademark in website metatags does not give rise to initial interest confusion that would support a finding of likelihood of confusion that consumers would perceive the defendant as an authorized retailer of the plaintiff’s products.”

An editor would catch that before it’s seen by others (such as those the author hopes to impress).

If you’re an attorney, if you’re no longer as young as you used to be, and you write stuff beyond legal matter (e.g., you write law review articles, or client alerts, or magazine articles), then you might want to read this article in the Wisconsin Law Journal.

The times, they are a-changing, and those who can’t adapt aren’t so likely to do so well (esp. when competitors are adapting quickly).

Well . . . to tell you the truth, not all lawyers need editors. The ones who don’t are the ones who aren’t read, except by those (law clerks, judges, opposing counsel) who really have no choice (because they’re involved in a certain matter).

As things change, more and more lawyers get to write more and more things besides memos and briefs. Many of them write client alerts or newsletter articles for their firms, and some write for blogs.

Those authors need editors.

Why? For much the same reason those authors visit their barbers and stylists and cleaners before they go before a live audience: To look good!
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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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Christopher G. Foster, an attorney with 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” — claims wood is a fossil fuel! Here’s the intro of an alert authored by Foster:

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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Readers might be left with the impression that Foster believes most of the carbon dioxide in Earth’s atmosphere comes from exhaust pipes and smokestacks. Hardly so.

An editor could have prevented this error (and others in the alert) from being published, which would have helped sell potential clients on the notion that the firm’s attorneys know their stuff.

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UPDATE: The firm might need an editor just to monitor Foster’s correspondence. This is from an e-mail he sent me when I brought the wood-is-fossil-fuel error to his attention – “Gee, I wus just looking for someone to help me with my speling. If I needs help edting I’ll ne sur to call.”

Some of the language in Foster’s emails is pretty foul — not the sort of language I’d expect from someone who studied at Stanford.

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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