Set in Style

From this article (titled “Lawyers’ writing skills still bad”) in the National Law Journal:

“Most of us would be far better writers if we’d never gone to law school.”

That’s the word from Douglas Winter, writing instructor at Bryan Cave.

The Valorem Law Group knows a thing or two about marketing legal services. It knows that standing out from competitors is the way to go. And its Web site demonstrates that very well.

Take a look at the site’s disclaimer. That’s certainly not your average, run-of-the-mill disclaimer, and this can’t possibly be your average, run-of-the-mill law firm.

Yet another answer to our perpetual question: what can an editor do for you?

Consider the following copy, the first line in a client alert:

The Ninth Circuit ruled earlier this month in Fair Housing Council v. Roommates.com that a website that specializes in matching renters with those with rooms to rent violated the Fair Housing Act and California housing laws by requiring users to input information about their sex, sexual orientation, and whether children would be brought into the house.

There’s a least a few things an editor would do with this. First of all, users would be gone, and renters would simply be called renters. Why? Because, without that, it’s not entirely clear that they’re one and the same.

The phrase requiring users to input information would be abbreviated. In general, phrases that can be abbreviated do get abbreviated, for the reader’s sake. If you can say something in fewer words, and you want to impress your readers, then use fewer words.

Next, the house would be gone. Why? Because rooms to rent aren’t all in houses. Some are in apartment buildings and condos. Some aren’t rooms at all.

An editor might revise that first line like so:

The Ninth Circuit ruled earlier this month in Fair Housing Council v. Roommates.com that a website that specializes in matching renters with those with rooms to rent violated the Fair Housing Act and California housing laws by requiring renters to disclose their sex, their sexual orientation, and whether children live with them.

As always, the advantage goes to the author. She looks better. 

And that’s what editors do. They make others look better.

I don’t know about you, but I find it a mite odd (sophomoric) when a law firm — especially a great big one — bothers to list each and every instance of someone at the firm being quoted in a newspaper or magazine. I find it especially odd when the list includes quotes that appeared in some small-town newspaper with a circulation of several hundred, or when the most recently published quote is four or five years old.

But I find nothing odd about the importance firms place on quotes from their attorneys, especially when those quotes appear in major papers like the New York Times or the Wall Street Journal, or widely-circulated magazines like Business Week or Forbes. Those quotes can attract business; or they can drive it away.

And so, most big firms have guidelines and procedures for dealing with journalists. Some even offer their partners training on how to respond to questions from journalists. All well and good.

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It’s like David v. Goliath. There’s a big manufacturer. It likes to throw its weight around. It sends a cease-and-desist letter to some Mom-and-Pop shop. It turns out that Pop is a lawyer, and he’s got a formidable sense of humor.

Read Pop’s response to Monster’s claim of patent infringement.

If legal writing is your passion, then you need treatment. Just kidding.

Seriously, if it’s your passion, then you can wear it on your sleeve, or on your head or your back or your butt, or you can stick it on your refrigerator or your window, or you can sip from it or cook with it on. You can walk around campus and cause others to wonder about you. You can make Englicians envious. You can splurge and make your legal writing prof proud.

Interested? Check out the legal writing merchandise at Cafe Press.

Big news this morning: the JP Morgan/Bear Stearns merger agreement is being revised. The motivation? Apparently, a drafting error.

This, from a story about it in today’s New York Times:

One sentence was “inadvertently included,” according to a person briefed on the talks, which requires JPMorgan to guarantee Bear’s trades even if shareholders voted down the deal. That provision could have could allow Bear’s shareholders to seek a higher bid while still forcing JPMorgan to honor its guarantee, these people said.

When the error was discovered, Mr. Dimon, who was described by one participant as “apoplectic,” began calling his lawyers at Wachtell, Lipton, Rosen & Katz to seek a way to have the sentence modified, these people said. Finger pointing over the mistakes in the contracts began as bankers blamed the lawyers and vice versa.

According to Kenneth Adams of Adams Drafting, the error isn’t a big surprise:

. . . dysfunctional prose in M&A contracts greatly increases the likelihood of a mistake going unnoticed.

We consider the doctrine that’s on everyone’s lips: uberrimae fidei.

That’s the opening line of a recent opinion authored by Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, a man widely admired for his wit, humor, and (relatively) unconventional style of writing.

What’s so unusual about that opening line? Not only does it betray a sense of humor, it contains two instances of something lawyers constantly avoid: contractions.

Q: “Why avoid contractions?”

A: “It sounds informal.”

Q: “What’s wrong with that?”

A: “Well . . . it is just not acceptable in such a solemn and dignified profession as the law.”

Q: (Reviewing an amicus brief authored by A.) “I see you often use which to introduce a restrictive clause. Is that acceptable in such a solemn and dignified profession?”

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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Last year, I wrote this post and this post about the difference between which and that, a subtlety that so many attorneys don’t get.

The Legal Satyricon has this interesting post about what can happen when legislators forget all about the difference between which and that.

Note: Legislatures normally get a pass when they ignore the rules of grammar, but not always. Here’s a story of courts landing on two sides of a dispute created when Congress — the same folks who brought you the No Child Left Behind Act — dispensed with good grammar, as it so often does.

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Imagine this: you’re an attorney drafting an important agreement, but you don’t understand the difference between which and that. A year later, your client learns it has to pay through the nose because of your ignorance.

That, I’m sure, could be most embarrassing. And it could be costly. Just imagine the impression you’ll make on clients (current as well as potential) when they hear that you haven’t mastered what 8th graders are expected to know.