Set in Style

My experience is that many attorneys are dead wrong.

They think the best writing is what most people (including other attorneys) can’t follow, so they turn out the sort of convoluted, long-winded constructions that make professional writers wince, like this nonsense:

The term of this Agreement shall commence on the date hereof as first written above and shall continue in effect through December 31, 2007; provided that commencing on January 1, 2008 and each January 1 thereafter, the term of this Agreement shall automatically be extended for one additional year unless not later than twelve months prior to such January 1, the Company shall have given notice to Employee that it does not wish to extend this Agreement (which notice may not, in any event, be given sooner than January 1, 2008 such that this Agreement may not terminate prior to December 31, 2008); and provided, further, that notwithstanding any such notice by the Company not to extend, this Agreement shall automatically continue in effect for a period of 24 months beyond the then current term if a Change in Control (as defined in Section 3(i) hereof) shall have occurred during such term.

My experience is that the clerks and judges who have to read what attorneys write don’t appreciate convoluted, long-winded constructions. They value their time, and they don’t like to waste it trying to determine if a sentence is well formed, or not.

Why can’t everyone write a brief like this? This attorney wrote just enough, and not one bit more.
— Anonymous, Law Clerk in San Francisco.

If you think what’s hard to read is what’s well written, then ponder this article (“Five Ways to Write Like John ”) by Ross Guberman, a legal writing pro.

You might be interested in Wayne Schiess’s Ethical Legal Writing and you just might like to visit (but never be featured in) the Legalese Hall of Shame.

I’m convinced that the most difficult skill for any lawyer to master is the ability to write with simplicity and clarity.
— Mike Dillon, General Counsel for Sun Microsystems.

Well . . . if you’re an attorney and you think (or you’ve been taught to believe) that bad writing (e.g., way too much copy and awkwardly arranged) is good (e.g., worth hundreds of dollars per hour to generate), then read:

• Legal Writing in Plain English
• Legal Writing: Sense and Nonsense
• What Makes for Good Legal Writing
• Wordsmithing

There are several ways to write marketing materials that save readers lots of time, and this introduction to the firm of Bereskin & Parr LLP embodies a few of them:

Bereskin & Parr LLP is a leading Canadian intellectual property (IP) law firm serving clients of all sizes, in a variety of industries, domestic and international. The firm was founded in 1965 and has grown to be one of the largest IP law firms in Canada with four offices located in major economic or technology centers. The firm has offices in Toronto, Mississauga, Waterloo Region and Montréal. Bereskin & Parr is made up of over 70 lawyers, and patent and trade mark agents, many of whom are recognized as leading practitioners in their respective fields. The firm’s practice is comprehensive, encompassing all aspects of intellectual property, with practice groups including:

1. First, throw your readers a curve. One way to do that is to start off with a nice grammatical error, leaving readers to wonder what are “domestic and international industries.”
2. Next, start each and every sentence with the same exact subject, like “the firm, the firm, the firm.”
3. Take a bunch of different thoughts and stuff them into one paragraph.
4. Don’t use transitions.
5. Be sure that no sentence refers to another, and there’s no logical progression from one to the next.

It really works. If you want people to stop reading your copy right quick, be boring, boring, boring.

The largest law firms tend to be very active publishers, attaching a copyright notice to a new publication just about every day. And they have an army of authors at hand — hundreds of attorneys.

Though they function as publishers, most law firms don’t do many of the things that professional publishers (of books, magazines, or newspapers) do as a matter of course.

One of those things is this — most law firms don’t have editors review what their authors write. In fact, the whole notion of having an editorial review process is an alien concept to most attorneys (including those managing very large law firms).

That’s too bad, because not reviewing what you’re publishing (before you publish it) can be downright embarrassing.

Case in Point

Consider the following, the intro to this article “On The Enforceability Of State Bars To Discretionary Clauses.”

In 2009, several courts considered whether state laws that bar discretionary clauses in plan provisions governing the administration of benefit claims were preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”) and, if so, whether they were saved from preemption by virtue of ERISA’s savings clause.

If an editor reviews this article before it’s published, he can’t help but notice a problem in the logic of the intro. No court is going to rule that a state law is both preempted and saved from preemption, now is it?

This simply has to be fixed — for the sake of the author as well as the firm. And here’s why. It portrays the author as a careless writer, and that’s a liability for the author, described by the firm as “a prolific writer on cutting-edge ERISA litigation issues;” and it portrays the firm as one that can’t possibly be sincere about its commitment to excellence — not if it doesn’t even review what it publishes.

So, what would a skilled and experienced editor do with this?

Very likely, he’d revise it like so:

In 2009, several courts considered whether state laws that bar discretionary clauses in benefits plans were preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”) or whether they were saved from preemption by ERISA’s savings clause.

After that, readers won’t have a good reason to question the author’s skills, or the firm’s commitment to excellence (or whether it even reviews its associates’ work).

__________
Of course, most attorneys aren’t used to working with editors. By and large, those who haven’t worked with skilled and experienced editors express fear — fear that an editor might make a mistake and reword something that shouldn’t be reworded.

Well, that’s just not so. Good editors don’t turn good copy into bad; they save busy attorneys from letting others see the mistakes that busy attorneys make.

Consider the following introduction to a law firm’s employment practice:

Our Employment Group provides employers with comprehensive legal services pertaining to the employment relationship.

That’s a common approach to practice area descriptions, but it’s hardly persuasive. It sounds clinical. “We offer services, just like every other firm.”

Now, consider this revised introduction:

Successful organizations manage their human resources with care; they take care to avoid difficult situations, they respond to problems quickly, and they respond aggressively when they must. We know; we help them succeed.

That speaks directly to potential clients (companies with employment law matters looking for counsel), and it’s much more inviting. It says, “We can help you.”

When it comes to practice areas, don’t waste your ink sounding just like every other firm with an employment practice.

Use it to stand out from them.

Before you start writing that client alert, grab a newspaper and a cup of coffee.

If you can, get a widely read paper: The New York Times, The Washington Post, or The Chicago Tribune. If not, find a paper that carries AP stories.

Read a few stories. At least, read the first few paragraphs of a few stories.

Now, here’s my good advice: when you write your alert, write like a journalist.

You’ll be glad you did.

(more…)

Lawyers need editors for this reason: they’re authors. They write client alerts, newsletter articles, and seminar materials published by their firms, and by-lined articles published by others. Some maintain blogs.

Lawyers need editors for this reason too: they’re human. Not only are they capable of error, but they’re susceptible to an occupational hazard. Since they spend so much time writing legal matter and so little time writing promotional matter (e.g., client alerts), they tend to approach the latter just like the former.

The result is promotional material written like a statement of facts — overly formal, hardly interesting (especially when the audience includes not only corporate counselors, but those who influence them, and others of interest*), and way too wordy.

Here’s a quick example. Consider the following intro to a client alert written by an attorney without an editor:

On September 22, 2009, the United States Environmental Protection Agency (“EPA”) promulgated its long awaited final rule (“Rule”) that imposes a mandatory national system for monitoring and reporting greenhouse gas (“GHGs”) emissions.¹ The Rule enables EPA to collect comprehensive, economy-wide GHG emissions data that can be analyzed on both geographic and facility-specific levels.

Compare that to this intro written by an attorney with an editor:

On Monday, the EPA issued its final rule that requires nationwide monitoring of greenhouse gas emissions. Under the rule, large sources of emissions, and large fuel and gas suppliers and manufacturers of vehicles and engines, will have to make annual reports to the agency.

What’s different, and why?

______
* To attract journalists looking for quotes, the intro has to satisfy a very broad audience.

Law firms need editors for this reason: they’re publishers. They publish client alerts and newsletters, seminar materials and by-lined articles authored by their attorneys. They publish web sites and some publish blogs.

Now, here’s a good example of what happens when there’s no editor between an attorney/author and his target audience:

All of these crimes can carry stiff penalties. In the cases of child pornography and online solicitation of a minor, a conviction for can mean having to register as a sex offender in addition to potential jail time. It is essential to thoroughly investigate all potential factual and legal defenses, police procedure during the investigation, and any possibility your constitutional rights have been violated.

Consider the second sentence:

In the cases of child pornography and online solicitation of a minor, a conviction for can mean having to register as a sex offender in addition to potential jail time.

An editor would certainly strike the errant article and preposition, but he’d do more. He’d make the last phrase (in addition to potential jail time) parallel the one before it (having to register as a sex offender), like so:

In cases of child pornography and online solicitation of a minor, a conviction can mean having to register as a sex offender and serving time in jail.

Why would he do that? For the reader’s sake, and the author’s too.

Here’s a good example that shows why 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 found:

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.

____________
The potential client who reads that will undoubtedly doubt the firm’s claim to a commitment to excellence.

An editor can help make sure that everything the firm publishes supports the claim.

Your car isn’t acting quite right and you need a mechanic.

So . . . you describe what’s wrong with the car to two mechanics, and they speculate like so:

Mechanic #1:

“The polarized input capacitor of the voltage regulator might be allowing too much variation in potential, and that’s causing the negative feedback servo control loop to malfunction.”

Mechanic #2:

“It’s either the alternator, the regulator, or the battery gone bad.”

Now . . . which mechanic gets to work on your car?

If you’re like most, you’ll choose the one you can understand.

____________
Consider the following copy*, the opening paragraph to a short article describing a recent court ruling:

On November 10, 2009, the Missouri Court of Appeals for the Western District ruled that any maintenance due a former spouse as part of a divorce decree terminates upon the remarriage of the party receiving the payments so long as there is no express agreement otherwise. The Court went on to hold that the use of the word “only” was insufficient to show this express agreement. See the opinion here.

That was published by an attorney “dedicated to helping victims of personal injuries and representation of individuals facing divorce and/or child custody disputes including child support, spousal support/alimony, paternity claims, adoptions, and other domestic issues.”

But it works against the attorney, a solo who helps people with the legal aspects of divorce. And that’s because it’s so danged formal and long-winded.

Who would you rather call if you needed a divorce lawyer — an attorney “dedicated to helping victims of personal injuries and people dealing with divorce, child support, alimony, adoptions, and other domestic issues,” or the one who wrote the intro above?

____________
If you’re an attorney and you want to tell prospective clients about some court ruling that affects them, use their lingo, like so:

An appeals court in Missouri ruled that a husband doesn’t need to pay maintenance (alimony) to his former wife after she remarries even though the divorce decree says he does.

The intro to a story shouldn’t weigh readers down with details, the way the intro to a brief does. It shouldn’t contain lots of facts. All it should do is this: encourage the reader to continue reading.

If you’re writing to a very broad audience (e.g., middle-income people who might need a divorce lawyer), don’t be so formal. You’re not writing a brief, and your audience doesn’t know the law.

Before you start writing, imagine a mechanic, or a doctor, or anyone who might need a divorce lawyer.

Write for that person, not a judge.

Write in such a way that each paragraph encourages readers to continue reading.

Unlike a brief, nobody has to read your story, and if it’s not interesting, they won’t.

______
* That copy was revised shortly after I posted this.

I’m reviewing a cover letter to a proposal. The 24-page proposal is from a law firm that wants to offer legal services to an insurance company. The 650-word cover letter was drafted by an attorney who worked on the proposal.

It’s awful (the cover letter) — two pages of hype that belongs in a brochure. In a cover letter, it sounds insincere and phony. And those are not the adjectives that describe the cover letter of a winning proposal.

My job is easy. All I have to do is call the firm’s marketing director, and say this:

Why don’t we use the cover letter we used on the last three proposals. Each of those proposals turned out to be winners, so why not follow a proven path?

Then he gets to talk to the attorney. If he can persuade her to use the proven cover letter, great! I can get it ret and set in no time. If he can’t, . . . .

Here’s my advice to an attorney writing a cover letter to a proposal: Keep it short. It’s not a brief. It should consist of nothing more than the following:

1. Attached is the proposal you requested;
2. Please call me if you have any questions/concerns about the proposal;
3. I look forward to being of service to your organization.

That’s it. Anything more than 250 words is — in most cases — too much.

And listen to your marketing director. You’ve got your talents, and he’s got his.