The Brilliance of Brevity

It’s really a shame I did not meet my longtime mentor (with whom I still practice) before I started college or law school. It would have made life much easier for legions of professors who had to suffer through my unfocused and sometimes wordy writing.

Of course, because one of my majors was Literature-Writing, I was exposed pretty early to writers who really made an art of brevity, from Beckett to Hemingway to Didion to Amy Hempel (regardless what readers think of the literary gifts of these writers, they all practiced a less-is-more philosophy in their writing). And I recognized and appreciated their care and economy in constructing lean sentences that seemed to express a kind of nihilistic void through an absence of language.

But it was not until after I started practicing law and had a mentor who took the time to work with me one-on-one to . . . er . . . adjust my writing style to make it more palatable and persuasive, that I came to understand and appreciate the beauty of brevity. Among his teaching methods, the most powerful involved using a felt-tip pen to excise any (I mean any) word that was not absolutely essential to my letter or brief.

I’ve come to think that there are two reasons crisp, clear writing that gets quickly to the point should be encouraged for lawyers, and neither have anything to do with expressing any “kind of nihilistic void.” First, judges and clerks simply don’t have–and won’t take–extra time to sift through a Faulknerian* experiment to grasp our point. I’m told they often do not get past our introduction or opening paragraphs. If our opponent has better mastered the art of writing in a clear, tight style, it presents no mystery that his or her points, even if not better, will be more seriously considered because they were easier for the judge or clerk to read and grasp.

An equally important reason to strive for brevity is that saying more with less tends to force us to really focus our thinking. A first draft might contain lots of “throat-clearing,” or excess verbage as we struggle to figure out what we’re trying to say. Like the carving of a sculpture, however, revision into subsequent drafts should refine and clarify our point. We often see that what began as one exceptionally verbose argument is better expressed, and more persuasive, if broken into two or three separate points.

In Lawyering, James Freund makes this point about brevity:

“One of the grim realities of our profession is that lawyers tend to be terribly long-winded. . . . The most common enemy of conciseness is the lawyer’s reluctance to sort out the material from the insignificant. One hopes this doesn’t evidence his inability to do so; a lawyer who can’t tell the one from the other suffers from the most serious of shortcomings in his chosen profession. If he can distinguish significance but chooses not to do so — out of laziness, or a misconception of its importance, or bad judgment in his utilization of time — he is not beyond redemption; but the adverse effect on the reader is precisely the same as if he totally lacked the capacity.

I find conciseness in a written communication to be quite difficult to achieve at the outset. One doesn’t start out to write a concise piece. Until all the thoughts are in front of you, deciding what’s material and what isn’t can be a tricky task. Crispness is usually the product of a late draft in your rewriting process. As you re-read your draft memo, try to decide which of the thoughts are essential to the analysis, which are collateral to it (but still of some significance), and which are essentially irrelevant or immaterial. This last category should be deleted, as tending to interfere with the flow of thought. Matters that are collateral/relevant, however, should be retained without throwing the reader off the main track.” (50-52) (Emphasis in original.)

One thing I’ve observed about my own quest for brevity is that, after several years of practice, I have begun to find it easier to write more concisely from the very first draft. Anything serious still seems to require some revision (not to mention careful, careful, careful proofreading!), but because I approach the project with an expectation that it will ultimately be crisp and tight, my initial draft seems to reflect this plan.

*I happen to love Faulkner. But reading his best work, like the opening pages of Absalom, Absalom, can be really tough going. I doubt that even Faulkner would expect a judge to accompany him on that journey.

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Driven To Fits Of Reckless Alliteration

Honored. Humbled. Happy.

The ABA Journal’s inclusion of in its annual Blawg 100 pretty much made my week. Thank you!

But I worry. What will happen if I go “Blue?” If I “sell out?” If I stop writing about depositions and post-it notes, and start covering Paris Hilton or Lindsey Lohan? Probably not something to worry about any time soon . . .

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A Period, And Then One Space Or Two? The Definitive Rule!

Ok, so I’m 46 years old and when I was young we had rotary telephones, vinyl records, rode on the backs of dinosaurs, etc. Therefore I wasn’t born knowing that we only put one space–not two–between the end of one sentence and the beginning of another. In fact, I will admit that, like most people of my . . . er . . . vintage, I was suspicious when I started to hearing or reading, I can’t remember which, that I was doing it all wrong.

It turns out that the single space rule is older than I am. According to the oracle (i.e., Wikipedia), the last known official US government document to specifically prescribe double spaces after concluding punctuation was a 1959 government style guide.

Lest you doubt or hate, the 2000 and 2008 editions of the Government Printing Office’s (GPO) Style Manual are unequivocal in their guidance regarding this convention: “A single justified word space will be used between sentences. This applies to all types of composition.” Modern Language Formatting Style (MLA) General Guidelines state: “Leave only one space after periods or other punctuation marks (unless otherwise instructed by your instructor).” There’s apparently also something called the Associated Press Style Book which is equally clear on the subject. And the Chicago Manual of Style. And Typography For Lawyers.

I’ll admit I’m struggling to overcome the sheer habit of double-spacing. I had to go back and fix several sentences in this post.

-Thanks to Dmitriy Kopelevich for setting me straight and providing the background materials.

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Some Other Things The Judge Said

I last wrote about a recent presentation made to my office by a retired judge, “Practical Advice and Perspectives From the Bench.”  While I found it most compelling (disturbing) to learn that many (most?) jurists in Los Angeles Superior Court, have a policy of denying even meritorious motions for summary judgment, the judge also offered several items of valuable advice.  While much of this will be familiar to lawyers who regularly appear in court, it is all useful and some of us, myself included, benefit from the occasional reminder.  So, in no particular order, here are some of his more valuable insights and suggestions:

1.  Never, ever, ever preface any argument to any judge using “With all due respect . . .”  This conveys the opposite, essentially, “You, Judge, are a moron, incapable of understanding the most basic legal concept . . .”

2.  Do not give equal time and/or space to weaker arguments.  This dilutes the stronger arguments.  Always lead with your best argument.

3.  Avoid repetition.  In the law and motion context, do not repeat arguments from your client’s motion in your reply.  And don’t orally repeat the argument again during the hearing.

4.  Don’t argue when the tentative is in your favor or you’re otherwise winning.  Sit down and shut up.  Don’t snatch defeat from the jaws of victory.

5.  Always give pin-cites (i.e., to the specific page within an opinion).  While this is how I was trained and how I practice, I would not have guessed pin-cites were so important to judges (and research attorneys).  The judge said his practice was always to look up cases lacking pin-cites and 50% of the time the case did not stand for the cited proposition.

6.  Refrain from petty complaints about opposing counsel.  The judge hears this all day long and you’re not furthering your cause, even if you’re 100% correct.

7.  When you appear on a multi-party case, take the time to orient the judge as to who the parties are, how they fit together in the controversy.  We apparently have “no idea” how confusing and disorienting it is to the judge when five different sets of lawyers appear on a case.

Again, many of these are either common sense or things most of us already know.  But, coming as they did from a retired judge, I thought it would be useful to share them.

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Why I Blog

This is my second blog.  I first blogged when my wife and I took a sabbatical to travel throughout Asia from the Fall of 2006 to the Spring of 2007.  I really enjoyed my blog, even when we were in China and I had to figure out workarounds to enable me to publish posts despite government internet censorship, or while in more remote parts of India where just getting on the net was a challenge. I tried to post everyday and it allowed me to keep in fairly immediate touch with friends and family.  I even remember rather vividly pounding out a post from an internet cafe in Nepal and glancing out the door to watch a painted elephant stroll by.

More satisfying than the ability to immediately communicate our amazing experiences, though, I found the blog to be a really great creative outlet during those months.  Like many lawyers, I always dreamed of being a novelist.  When I hadn’t found my voice by the end of college, I figured I better find a more . . . er, reliable way of making a living.  (This was obviously a different era, when becoming a lawyer still seemed like a reliable way to earn a living.)  But I’ve never let go of that longing to write, though I won’t be quitting my day job anytime soon.  Thankfully, blogging–even if only to a small audience–provides a great creative outlet.

Maybe I was destined from a young age to enjoy blogging.  When I was around 8 or 9, I used to hunt-and-peck on the typewriter to create a small newspaper, covering such gripping topics as our cat’s health.  Using carbon paper, I’d make several copies, which I then delivered on foot or by bicycle to many of our neighbors within roughly a 2 mile radius of our house.  (I also went door-to-door offering to shine shoes, so it’s not clear that I was really any more destined to write a blog than to shine shoes or sell vacuum cleaners.)

After the Spring of 2007 and the purpose for my first blog evaporated, I flirted for a couple of years with starting a new blog, but didn’t do it.  I couldn’t think of anything that interested me sufficiently to write about it several times a week (and it’s just lame to start a blog, publish a couple of posts, then let the thing wither and die).   Then, one night I had dinner with one of my wildly successful college buddies and he suggested I start a blog as a business development tool.  At that point, I knew about a few interesting law blawgs, but I didn’t follow any religiously. I also had my doubts about whether blogging is a good business development tool.  Still, I enjoy writing, and I respected my college buddy and decided to give it a try.

I struggled for months with what kind of blog to write.  Since I really focus on employment issues in my law practice, should my blog simply track employment law developments or best practices? There are tons of these already out there, and not every new or changed law is interesting enough to write (or read) about. I also wanted some flexibility.  There are some really excellent blogs with a really narrow focus, but my interests, even within the profession, tend to drift.  After trying on a few different hats, I settled on the blog you’re reading now.  It marries my appreciation for litigation that is practiced ethically and practiced well, with my interest in the business side of the profession.

Now, re-reading the last two paragraphs, I see that I need to clarify something.  While it was a suggestion from a friend (who writes an enormously popular blog) that got me to revive my then-dormant desire to start a blog, I don’t write this blog for business development purposes, or even consider blogging a particularly good client development tool (perhaps a subject for a different post).  In truth, I use business development as an excuse to maintain a blog, which is itself just an excuse to write.

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How We Must Explain Why To The Judge

A recent post at the excellent Bow Tie Law’s Blog illustrates, in the realm of E-Discovery, the importance of explaining “why” to the judge.  Specifically he discusses the importance of explaining why it is not possible, for reasons of cost or undue burden (or some other important reason), to access and provide Electronically Stored Information (ESI), such as email communications.  While the focus of the post is on what kind of showing would be required to defeat a motion to compel production of ESI, it illustrates a larger point that bears repeating–make sure the judge understands “why.”  Never presume it’s enough that you’re asking for relief and it seems like a good idea, or that the other side doesn’t have a good argument against it.  While a case (or a string of cases) supporting the relief you’re seeking is always nice, it’s equally if not more crucial to explain why the court should rule your way.  Why you’re asking for exactly the relief you’re seeking.  Why you need it now.  Why you didn’t wait too long to seek relief.  Why there’s no reasonable alternative.  Why the opposing party will not suffer prejudice when the relief is granted.

An illustration that’s closer to home.  A little over a year ago, I had to seek an emergency continuance of a trial because I had been diagnosed with a detached retina which required immediate surgery and a month of recovery.  One of my colleagues, knowing our judge well, said he thought there was only a “50/50” chance the judge would grant the continuance.  This meant he thought there was a 50% chance the trial would not be continued! 

I’m not sure how I could have simultaneously undergone invasive eye surgery and made an opening statement, but you can imagine how important it was to me that the judge grant my application for a continuance.  Not only did I explain in my declaration, step by step, how my vision had rapidly deteriorated over the last few days causing me to insist on an emergency appointment with my doctor, I also attached a doctor’s note (which I had to basically dictate to his assistant) and a series of articles from the internet discussing my condition, how emergency surgery is required to avoid almost certain blindness, and how my head would need to be positioned face down during the recovery period.  Fortunately, the judge granted the requested continuance, my surgery was successful and I won the trial!  The point is to never assume the judge understands and will adopt your position just because you say she should–it’s crucial to explain why.

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The Hyperbole of Hyperbole

I wrote last about credibility in the context of preserving one’s reputation for honesty. I doubt many lawyers will argue with the importance of reputation. However, at a more granular level, there are more subtle ways of losing credibility than being untruthful with the opposition, a judge or your client. I’m thinking here about the tendency in our profession to exaggerate or overuse hyperbole in correspondence, briefs or argument.

Yes, “this bag weighs a ton” is more colorful, immediate and powerful, than merely, “this bag is heavy.” But it’s a slippery slope. As I write this, however, it occurs to me that the risk may actually be less about preserving credibility, and more about simply being a better advocate. The goal in our writing and argument should be less about telling a judge, jury or opposition that a course of conduct was malicious or–another good one–heinous. Our goal should be to drive the point home using the facts themselves. Show, don’t tell, as I hear in my sleep from all those fiction workshops. Describe the facts which lead us to conclude on our own that the conduct was malicious or heinous. If done properly, you can leave out the hyperbole and adjectives entirely.*

Back to the heavy bag, saying it “weighed a ton” is more powerful than simply “heavy,” but “the bag weighed 300 lbs.” or “plaintiff could not lift the bag without assistance” is more compelling still. We trust this statement, not because someone else has concluded for us that the bag was “heavy” (a relative term), but because most of us can infer from our own weight that 300 lbs. is heavy. Describe the facts precisely and well; if the bag truly was heavy, we’ll know it.

I know when I receive a letter or a brief with hyperbole or exaggeration my first thought is not, “Wow, we’re in trouble.” Typically the opposite. This is because I know that if my client and I have something to worry about there won’t be any need to cloak the facts in fiery adjectives or other nonesense. Again, if the facts are good or bad enough, they’ll speak for themselves.

I suspect it’s because judges are so inundated with exaggeration on a daily basis that they often seem at their wits-end during law and motion calendar. There’s only so much of it one can take without growing tired and cynical. I’ve never sat as a judge, but I sometimes imagine what they must be thinking, in their black robes presiding over lawyers bickering over interrogatory responses like little children: “Somebody is really paying these people several hundred dollars an hour for this?”

Exaggeration in the courtroom is not dissimilar from crying wolf. The first time we hear a lawyer suggest a defendant was calculating or heartless it might carry some impact. But, like the gun in the first scene of a play, hyperbole and adjectives generate an expectation. If the lawyer doesn’t deliver the goods by the end of the show, the audience is going to want a refund. And they’ll deserve it.

*An exception being adjectives that are specifically drawn from applicable jury instructions. If the instruction requires the jury to conclude conduct was “malicious” to impose punitive damages, then a lawyer should use the term itself. But don’t just conclude the conduct was “malicious,” describe the conduct in such a way, with facts, that no sane person could reach any other conclusion.

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Don’t Hide Behind Your Wordprocessor If You Want A Cordial Relationship

I know that I am not alone in feeling the inclination sometimes to dispatch a really sharply worded letter or email to my opposing counsel.  I’m talking the kind of letter that says a big, snotty “so there!” so often it feels like a one-two punch twice in every paragraph.  I know I’m not alone in this urge because I’ve been on the receiving end of such letters and emails from opponents whom I discovered later to be, deep down, pretty nice people.

I’ve contemplated why we feel the urge to do this and, further, why we indulge it more frequently in writing than in person or over the phone.  I believe it’s a manifestation of the fight-or-flight response that is apparently part of being human.  But I also believe we find it much easier to take an aggressive tone with someone when our communications are mediated by time and distance.  Using myself as an example, I have at times written aggressive things in correspondence that I would never have had the gumption to say in person or over the phone.

Let me go on record saying here that, in all but a few instances, I’ve ultimately regretted taking an “uppity” tone in letters to opposing counsel.  This is so true that I’m very sensitive to the tendency now.  I take care not to send a message or letter that I’ve written when angry, hungry, over-caffeinated or all three, at least until I’ve given myself an interval to cool off and critically re-read what I wrote.  The reason is that, on balance, I’ve vastly preferred the practice of law–and procured better results for lower fees–when I’ve tried to maintain a cordial relationship with my opposition.

It’s not always possible.  Cordiality, like professional courtesy, is a two-way street.  If my opponent mistreats me, I’m not going to be a doormat.  And, during the course of a case there is bound to be occasions when we rankle one another.  It’s unavoidable in a practice–litigation–in which we are inherently at cross-purposes.  On the other hand, if I’ve stayed professional in my written communications, I find it vastly easier to get along in person.

The absolute worst situation is where I’ve not met in person or established any kind of relationship at all with my opposition other than an exchange of letters laced with snide comments.  When the time comes for one of us to ask a favor (and that time always comes) and a phone conversation is required, there’s nothing worse than trying to shrug off the ill feelings that have accumulated through our letters.  “How are you today” just sounds hollow.  The balance of power in these circumstances is always tipped in favor of the lawyer who does not need the favor (an example of situational leverage, I assure you).  I vastly prefer to be the one who’s taken the high(er) road and in the position of granting the favor than the lawyer who’s been asshole and is now on his knees begging.


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Two Sure-Fire Ways to Immediately Improve Your Legal Writing

I 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.

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Why Your Lawyer Must Be A Strong Writer

Few would argue with the suggestion that a crucial skill for any lawyer who makes a living helping clients resolve disputes is the ability to persuade.  Anybody can look up a case.  And, while novel arguments or clever strategies can enjoy a certain symmetrical beauty, the ability to persuade, to sell, is ultimately what separates a good or great lawyer from the merely adequate.  To this premise, I would add that the ability to write, to string together sentences in a clear, articulate and persuasive manner, is the most crucial skill of all and one clients should absolutely insist upon.

Why is writing such a critical skill to our trade?  Conceptually, persuasive writing doesn’t just require a command of language, it compels organization.  Even a point delivered orally requires a structure, if it is going to persuade.  Clear writing always embodies this structure.  It reflects the ability to conceptualize and frame an argument.  Like the frame of a house, a clearly framed argument helps guide the reader—often a judge—follow on the journey to the desired conclusion.  It lays a firm foundation for the real magic which, in the context of the law, is the synthesis, or interweaving, of evidentiary facts with a governing rule.  There is no substitute for the ability to organize and frame an argument.

In modern civil disputes, it is always a written instrument—a complaint or claim—which sets a case in motion.  While it’s certainly possible to win a massive verdict or coax a settlement out of a case premised on an inartfully drafted complaint, the complaint frames the issues, sets the tone of the case, and introduces the parties and their lawyer.  If the complaint is sloppy, exaggerates or overreaches, it underwhelms both the judge and the lawyer on the receiving end.   The judge may become prejudiced.  Equally important, there can be a subtle, almost imperceptible, shift in the balance of power between the opposing lawyers.  Respect between counsel must typically be earned; it is rarely presumed.

Most crucial of all, ask any civil trial or appellate judge and you will hear that, in all but the rarest instances, an argument is won or lost on the quality of the papers.  This is not to discount the importance of having favorable law or facts.  But good law or compelling facts are worthless if your lawyer has not articulated them in a clear and persuasive manner.

Clients should demand their lawyer have impeccable writing skills!

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