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(323) 652-9451 - LAI came across this post on the Lawyerist on the question whether good legal writing is inherited or developed. Putting aside that debate (the answer is both, by the way), it occurred to me that there are two steps that mediocre legal writers can take to immediately improve their writing.
There are actually three steps. The first is to realize your legal writing needs help and care enough to try to improve it. There are lots of advocates who slog through an entire career filing nearly incomprehensible briefs. Don’t be that lawyer. Take pride in your product. The fact you have read this far, rather than clicking on to something more compelling, means you are at least curious, or you just got an Apple and haven’t figured out how to navigate away from this page.
The first sure-fire way to improve your legal writing is to strive to use an active rather than a passive voice. It’s ironic that I spent several (ok 6, but who’s counting) years getting a degree in Literature-Writing from a really solid university, but it wasn’t until I was a staff member on Law Review that I truly began to understand the importance of active voice. If you missed the special torture that is editing a legal journal, or were otherwise never trained to write in active versus passive voice, I’ll provide a very easy example to illustrate the difference. Using passive voice, a lawyer might construct a sentence that reads: A man, woman and two children were shot by the defendant. Contrast that sentence with one written using active voice: The defendant shot a man, woman and two children.
See? Simplest thing in the world. But, even those of us who generally strive to use active voice occasionally fall into passive voice. The key is to recognize when you’re doing it and decide whether the sentence you’ve created could be improved by changing the voice.
The second way to immediately improve your legal writing is equally simple. Pare back the number of words you use to say what you’re trying to say. This was something my mentor taught me when I was a baby lawyer and I’ve generally tried to adhere to the principle, at least when writing to a court or opposing counsel. Basically, every word in any sentence should be necessary. Nothing extraneous. This will automatically take care of the tendency to include “herein” and other pointless words. It also forces the writer, you, to think about what you’re trying to say and how to say it in the clearest way possible. Judges and clerks appreciate clarity.
Now. This second “way to immediately improve your legal writing” is not a rule. It’s just an approach. And, it’s an approach I freely disregard when I want to emphasize something through repetition or diction (word choice). Hell, I often write entire paragraphs in the passive voice and include a lot of extra words. But, when I do it, I do it purposely, usually for effect. Otherwise, I strive to write clean, spare, Hemingway-like sentences, in the active voice, as free as possible of legalese.* (*Ok, I’ll admit an affinity for ancient latin phrases like sua sponte, ab initio, inter alia. I know that writers who know what they’re talking about, as opposed to armchair poseurs (who me?), have zero tolerance for latin phrases. If I give in to the urge to use them in an early draft, I almost always delete them.)
There. If you struggle with your legal writing, try these two suggestions. I guarantee you’ll see results.
Learn Morehttps://youtu.be/fgIBG8q1Gjc
In this clip from A Few Good Men, two Marines are on trial for a murder on their training base. The Marines’ defense is that they were ordered by officers to give the decedent, a fellow Marine, a “Code Red,” which is a violent training “tool” used to bring errant Marines in line. The decedent was killed during the performance of the Code Red.
The prosecution (played here by Kevin Bacon) wants to poke holes in the whole notion of a Code Red. When another Marine from the same unit is on the stand, Bacon cross-examines him with two books, The Marine Outline for Recruit Training, and the Standard Operating Procedure applicable to his unit. Bacon elicits admissions that the term Code Red does not appear anywhere in either manual, thus making it seem like something the defense has cooked up or exaggerated.
The defense (played by Tom Cruise) deftly resuscitates his witness by using the same Standard Operating Procedure and asking the witness to locate where in the manual it explains where the mess hall is located. Of course the manual makes no reference to the mess hall, either, crisply illustrating the fallacy behind the argument that a Code Red must be a fiction if not officially recognized in the Marine training manuals.
Oh, and sorry if this contained a spoiler. The movie has only been out for like 25 years.
Learn MoreLike many business books, the Attorney entry into Michael Gerber’s E-Myth series is substantively less revolutionary than it sounds. But, it contains advice which, if followed, can be transformative.
What is an E-Myth Attorney? “In short, the E-Myth says that most attorneys don’t own a true business–most own a job disguised as a legal practice. They’re doing it, doing it, doing it, hoping like hell to get some time off, but never figuring out how to get their business to run without them. And if your business doesn’t run well without you, what happens when you can’t be in two places at once? Ultimately, your practice will fail.” (From the Preface, xvii.)
The book is largely about transforming lawyers’ approach to their practices, so they think more like entrepreneurs. There seems to be a cherished, romantic view that professionals, like doctors and lawyers, should somehow be above treating their practice as a business. As if being called to the priesthood, one is called to the practice of law, and lawyers should avoid transforming this calling into a profitable enterprise. I read blog posts and commentary that frown upon the notion that lawyers should build their law practice like a business. That thinking is noble and all, until it comes time to pay off student loans or put a child through college. Though we constantly confront media reports to the contrary, I’ve argued that there’s nothing mutually exclusive about being a highly ethical professional, but also thinking like a business person. This is exactly the premise of The E-Myth Attorney.
How should a lawyer think more like an entrepreneur? The E-Myth authors focus heavily on the development of systems, ultimately a “system of systems.” It’s not complicated. Using the fantastic success of McDonald’s as a case study, the book discusses how that company “needed to turn pimply-faced, ADD, teenaged kids into productive workers in charge of multimillion dollar franchises.” (64) How did they do it? By developing a system for performing every task of the business which is imparted through meticulous training to every “pimply-faced, ADD” employee. Figure out how to make the perfect hamburger or french fry, and train every employee to do it that way every time. Starbucks uses the same philosophy, so I know a Grande nonfat latte in Toledo, Ohio or Montecito will taste just like it does in downtown Los Angeles.
Of course lawyers don’t make burgers, fries or lattes. But much of the nuts and bolts of what we do–at least those parts that do not require our active thinking and involvement–are not too dissimilar from making burgers and fries in the sense of repeatability. For example, a law practice that caters to individual clients, such as estate planning or family law, should develop a system for client intake, information and file management, calendaring and billing. These aspects are required for every client, every case. Most intelligent law practices already have systematic procedures for these tasks. But there are other aspects of the practice that are capable of systematization, but which we tend to shun or put off systematizing. Not only should we develop and use form files (they benefit attorneys and clients), but forms should be organized in a way that provides instantaneous access. A practice which sees the same or similar claims or defenses over and over should have form discovery which goes out in every such case and which can be quickly tailored to fit unique or individual facts or claims. Systematizing the familiar and repeatable parts of our practice frees us to direct our minds and attention away from the mundane, and toward that for which each of us are uniquely, and expensively, trained.
The book encourages attorneys to develop a manual about every element of the practice which can be given to a new employee. Without this, the authors argue, the departure of a staff member becomes the kind of catastrophic event from which it takes months to recover. And, the authors touch upon other points, including the notion of being selective in accepting clients, alternative billing arrangements, managing time and alternative marketing strategies.
But, for me, the E-Myth is ultimately about appreciating process. I would argue that actively utilizing process and developing systems won’t just make our law practices more profitable and tolerable (what, take a vacation?!?), but it can help us do a better job as advocates. I’ve seen the beauty of process first-hand, as my long time mentor is nearly obsessed with developing repeatable procedures for everything from answering an email from a client (must be the same day even if a substantive response is not immediately possible), to maintaining discovery notebooks for every case into which are gathered discovery, responses, correspondence about discovery and matrices of document productions in a single place. I’ll confess that, after nearly two decades of trying to follow these procedures, it’s only now that I recognize that attention to process should appeal to everyone, not just the anal-retentive members of our profession. It will make our practice better and our life easier.
Learn MoreOne of those absolutely crucial lessons most law schools don’t teach, but which you need to know if you’re going to appear in court, is the importance of making nice with the courtroom staff. A lawyer’s rapport with members of the courtroom staff–the clerk, the bailiff (or courtroom assistant), the court reporter and the research attorney(s)–can have a significant impact on how the lawyer is viewed and treated by the judge.
Obvious? Sure. But it’s not always a two-way street. Practicing in urban courts, we frequently encounter clerks who are (or believe themselves to be) overworked, underpaid and underappreciated, or just plain nasty. I struggled sometimes when I was a brand new snot-nosed punk of a lawyer and I was trying to get something scheduled or filed and it didn’t fit with the clerk’s vision of the world. Because I was brand new and terribly snot-nosed, I naively thought it was just a matter of getting the court clerk to see things my way. Being snot-nosed, I wasn’t always patient and respectful when things didn’t go my way.
I like to think I’m wiser now. At least I realize that I was coming at it all wrong. I know now that I’m a visitor in the clerk’s domain. I’m the one needing relief, or a favor, or just to stay on good terms with the judge. With years, I’ve also learned that jurors frequently take their cue from the way the judge treats the lawyers. If the judge is impatient or frustrated with one of the lawyers in a trial, jurors tend not to like or trust that lawyer. For better or worse, the courtroom staff–and the judge’s clerk in particular–often have the judge’s ear. If I mistreat the clerk (even slightly or accidentally) and that fact filters back to the judge, it can haunt me throughout the case, through trial and, potentially, prejudice my client. Since I might never get a chance to rectify the situation, I might get a raw deal with that judge for years to come.
So I do the smart thing. I mind my P’s and Q’s when it comes to the courtroom staff.
Learn MoreA great post on Associate’s Mind, entitled “Millennial Jurors: Entertain Us,” discusses the challenges facing trial lawyers trying to communicate with Gen-Y jurors. In addition to prognostications about how these young adults can’t sit still and pay attention for the hours needed to take in information during a jury trial (how will they check their smartphones?!?), the post (which itself references an article in the Texas Bar Journal) notes how information needs to be presented to Millennial jurors in shorter visual “bites,” as opposed to purely verbal, format. Better make sure it’s not boring, either.
Undoubtedly a cottage industry will sprout from within the ranks of jury consultants and trial support firms of “Millennial specialists” who claim to know the secret to engaging Gen-Y jurors. But I don’t think the shorter attention span, and increased need for engaging visual, as well as verbal, content is really that new or a bad thing at all. I’ve written elsewhere how trials are too long and taxing on jurors’ minds and attention spans. Anyone trying cases in the past 25 or 30 years knows that a purely verbal presentation–without visual aids (even rudimentary visual aids) is risky, even if the subject matter is pretty sexy.
I think that, while the (alleged) changes in attention span, and increased appetite for visual stipulation seen in Gen-Y (and presumably later) generations might be lamented by parents, educators, psychologists, novelists (and other print media writers) and others, it should not necessarily be lamented by those in the business of trying cases. Rather, like any development, it should be prepared for and embraced. It is true that evidence will need to be presented differently if it’s going to get through to Millennial jurors, and this will require some reflection and research. (Perhaps more in-depth research than was undertaken in developing the Texas Bar Journal article, which was simply a survey of law school students.) And, probably, some trial and error.
Turning the coin over, though, there will surely be evidence that only the younger generations will “get,” at least at first. For example, while it’s commonplace now for defense lawyers to scour the internet for impeachment evidence, there are older jurors who don’t surf the internet and don’t understand “The Facebook,” Twitter or LinkedIn. Cases involving new media, reality television and certain progressive technologies might be completely foreign to more senior jurors but completely familiar to members of Gen-Y. (OK, I’m a little biased because I practice in Los Angeles, where every case will someday be “pre-tried” on TMZ). In short, there should be a place at the table for every kind of juror. The challenge to the trial lawyer is to engage, as best as possible, with jurors of every generation, not just the over-30 demographic.
We’ve got to raise our game, or get out of the way.
Learn MoreYesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information. I just need point out a single exception to this view: discovery through depositions.
Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence. But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).
Certainly depositions should not be an exercise in free association thinking. Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish. But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail. I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.” When it comes to depositions, I disagree. Don’t be afraid to “fish.”
The most important skill in taking depositions is not asking clever questions, but listening. Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic. Why is it a sensitive topic? We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully. This take patience and persistence.
This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective. But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way. The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer. That filter is generally missing in a deposition.
Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically. While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer. In other words, you have to dig deep to find the gold!
Learn MoreOne of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve. This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do. I think also that, as a young associate, I was always looking for ways to maximized billing opportunities. Actual strategy rarely entered the equation.
I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.” Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying. He was absolutely right.
My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun. As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).
I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter. Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client. There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result. So every task, not just discovery, needs to be calculated to advance the ball.
On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery. In fact, quite the opposite is often true. An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.
My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client. If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case. I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense. The same holds true, only opposite, if I’m representing a defendant. This is elementary, but I’ve seen a lot of discovery (and written some over the years) that strayed pretty far off topic.
If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response. Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it. If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?
This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience. By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.
Learn MoreI ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both. Karen draws on her experience trying a case against a really poor defense lawyer. She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”
I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial. “Challenged” lawyers make our job harder–and the case more costly–from day one. They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution). They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances. It seems like they’re never available to address anything substantively. They fight battles over the wrong things–again wasting time. They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.
We all started somewhere. I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes). But the goal should be to improve and try to learn from mistakes, not to keep making them.
Lawyering is like tennis in that the quality of your opponent brings out the best in your game. I’ll take a Federer or Nadal any day.
Learn MoreAn article in the Wall Street Journal Tuesday discussing the Rajat Gupta insider trading trial in NYC pointed out that the judge and the accused’s defense attorney, who are apparently longtime friends, have been cracking jokes throughout trial in and outside the presence of the jury. The article posed the question, but did not weigh in, on whether humor in the courtroom is a good idea? Well, when it’s the judge making the wisecracks there’s not a lot counsel can do, so why not laugh along. But when, if ever, is it appropriate for counsel to inject levity into the courtroom?
I think some humor can serve two useful purposes. First: it breaks the tension that naturally develops in a courtroom, where freedom, money, reputation or all three are at stake. Second, depending on timing, humor can break the monotony and actually “wake up” the proceedings a bit. The problem is, the parties, their lawyers, the judge, the clerk, bailiff, court reporter, observers and, most importantly, the jury, may find different things funny (or not so funny). An intentional joke can fall flat or, worse, offend. That said, here are my thoughts on the uses of humor in the courtroom:
1. It’s not appropriate when it’s not appropriate. This presumes we all possess at least some judgment and, let’s face it, some of us don’t. So, by way of illustration, when the subject matter of the trial is catastrophic injury (burn victims, etc.) or heinous crimes (rape, murder, etc.), there’s a 99.9% or better likelihood that any joke is going to offend someone. So steer clear. Don’t even try it. There’s probably nothing funny to Rajat Gupta about going to jail and facing jail time, yet it’s his own lawyer making the jokes, so presumably it’s ok. (“What, I’m paying you $1,000 an hour and you’re making jokes?”)
2. Take your cue from the judge. The judge always sets the tone of the courtroom. If the judge makes a funny, then humor may be acceptable in his or her courtroom. Pay attention to whether the judge allows humor when jurors are present. Even if laughter is permitted outside the presence of the jurors, a joke could be sanctionable conduct if made when there are jurors present, particularly if your opponent or his/her client is the butt of the joke.
3. Know when to stop. Here, again, we need to exercise our judgment and some of us don’t have any. So, to be safe, stop while you’re ahead. If something you said elicits a chuckle, leave it there. Because I’ve never been great at timing or telling jokes, I would never intentionally try to be funny in the courtroom. The stakes are too high and I don’t want to risk it. When I have been funny, however, it has always been accidental and usually something self-depreciating I’ve said or done. People seem to appreciate humility.
So . . . in my view, using humor in the courtroom is a mixed bag. I almost always appreciate it when the judge says something to break the tension, but I’m loath to try it myself. What do you think?
Learn MoreThis excerpt from Atticus Finch’s cross-examination of Mayella in To Kill A Mockingbird highlights why you might want to prepare your witness for a potentially challenging cross-examination.
[youtube https://www.youtube.com/watch?v=44TG_H_oY2E?rel=0&w=560&h=315]
Learn MoreIn the last post I talked about the concept of a “managerial” judge. Some have suggested that having an overly involved or controlling judge may not be a good thing. Having litigated several cases before micro-managing judges over the years, I’ve come to believe that, in most instances, my clients will tend to benefit from our case being assigned to a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution.” Here’s why.
First, parties and lawyers involved in a civil dispute need someone to take charge and crack a whip. Picture, if you will, a giant sandbox filled with sand toys. In each corner there is a 3 year-old who is told by his/her parent to “do whatever it takes, but be courteous” to capture all of the sand toys. The ensuing exchange among the toddlers–admonition to “be courteous” notwithstanding–would soon turn ugly. This is what many lawsuits turn into, despite the involvement of lawyers who are reputed to be educated, ethically duty bound professionals. Without a strong, hands-on judge, a dispute over the breach of a contract will too often turn into the equivalent of a toddler sandbox fight. Even with a strong judge lawsuits frequently devolve into bare knuckle brawls. (I still have bruises.)
Second, I find that hands-on, managerial judges tend to be more consistent in their rulings than judges with a more laissez-faire style. It is much easier to plan and execute strategy when you know how your judge typically handles a particular issue. Managerial judges often issue their own set of rules regarding how they want pretrial matters handled. Get these rules and follow them religiously! You will likely remain in pretty good stead with the judge. In fact, following a managerial judge’s rules is a great way to gain an advantage over a disorganized opponent who fails to strictly follow the rules.
Finally, managerial judges tend to put a lot of energy toward settling cases. A laissez-faire judge will allow a case to take its own course and the parties to enter settlement negotiations whenever they feel the timing is right. This is almost always in the days or weeks just before trial. The problem with this approach, and the reason a managerial judge is better in my view, is that parties can save a lot of fees and costs if they are forced to explore settlement earlier. Also, when cases settle earlier it helps free the clogged courts. This, in turn, allows other cases to get to trial (or otherwise resolve) sooner, which gives judges freedom to give more individualized attention to their dockets.
Make no mistake, appearing before managerial judges can be difficult. They develop and impose their view of how the case should progress and the parties go along for the ride. On balance, however, I think there are benefits to a heavy-handed judge which outweigh the difficulties, and I’d pick one over a hands-off, laissez-faire judge any day.
Learn MoreIn the course of researching a question about judicial discretion, I recently came across an article discussing “managerial” judges. The author, quoted below, argued that managerial judges are dangerous and something which should be discouraged, if possible. Is this fair?
The term “managerial” judge was reputedly coined in a 1982 Harvard Law Review article by Judith Resnick, entitled, ironically, Managerial Judges. She used the term to describe a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution and encourage settlement.” Thornburg, “The Managerial Judge Goes To Trial,” 44 U. Rich. L. Rev. 1261 (2010) (citing Resnick’s article).
This definition sounds neutral and constructive enough. But trial lawyers who have lived with a case presided over by a managerial-style judge know they can be difficult, unpredictable and downright scary. The key to their danger lies in the phrase “using various procedural tools.” Consider some examples. The simplest I can think of was a judge who, seeing that the parties were disinclined to seriously discuss settlement, scheduled a lengthy trial to start on December 26th, the day after Christmas. Other judges routinely withhold or time issuance of rulings to impose maximum leverage on one or both parties to come to the bargaining table.
When I was a first year lawyer I witnessed a California Superior Court judge order the entire legal staff of a Big Three automobile manufacturer to travel from Michigan to California to attend a settlement conference the next day because the judge felt the car maker was not being appropriately generous in settlement negotiations. Put yourself in the shoes of the car maker’s lawyer (my boss at the time) telling our client over the courthouse pay phone (this was in the early 90s) to round-up her colleagues, pack a bag and get to the airport!
I’ve seen and heard of other judges doing radical things with discovery or the presentation of evidence, like completely rearranging the order in which the parties presented their respective cases to the jury. This seems less calculated to pressure settlement negotiations, and more to fit the judge’s personal vision of how the case should progress.
Whatever the purpose, there is no question that, at least in Federal District Court and California civil courts (where I practice) judges possess enormous discretion to dictate, with extreme detail if they desire, how a case progresses from filing to resolution. The question is whether judges who seize this discretion and micro-manage cases are furthering or hindering justice.
In my next post, I’ll explain why I think the parties to a lawsuit actually benefit from being assigned to a judge with a managerial style.
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