Do You Use The Rhetorical “Rule of Three”?

Well, you should.

I’m referring here to rhetorical device of organizing and presenting topics, words or phrases in groups of threes. Sadly, I neither discovered nor perfected the Rule of Three. But I intend to learn it, practice it and perfect it. (See, I did it right there.)

The Rule of Three enjoys a long history. Writing in the November, 2013 issue of Toastmaster, Washington, D.C.-based speaking consultant Denise Graveline reminds us that the Rule of Three “grew out of the ancient oral storytelling tradition. That tradition is the way we shared information before writing it. Over time, storytellers found that they and their listeners could most easily remember stories structured in three parts, which is why so many fairy tales have triads in them (think three little pigs or three blind mice).” (Id. at 16-17.)

Andrew Dlugan has written extensively on using the Rule of Three in his popular blog Six MinutesHe discusses and gives examples of two special “triad” variants: hendiatris and tricolon. “A hendiatris,” Dlugan writes, “is a figure of speech where three successive words are used to express a central idea.” Examples? Consider these:

  • Veni, vidi, vici.” – Julius Caesar (trans: “I came, I saw, I conquered.”
  • “Liberté, Égalité, Fraternité.” – French motto
  • “Wine, women, and song.” – Anonymous

“A tricolon,” Dlugan tells us, “is a series of three parallel elements (words or phrases). In a strict tricolor, the elements have the same length but this condition is often put aside.” In addition to Caesar’s “Veni, vidi, vici,” Dlugan quotes advice Franklin D. Roosevelt gave to speakers: “Be sincere, be brief, be seated.”

I’m not sure I ever gave the Rule of Three any serious thought before, though I recall my father, teaching me photography as a kid, talked about using patterns of three when composing a photograph. According to Dlugan, we can see examples of the Rule of Three at play throughout history: in religion (Father, Son, and the Holy Spirit), movies (Sex, Lies & VideotapeThe Good The Bad And The Ugly), politics (Executive branch, Legislative branch and Judicial branch of government; Declaration of Independence: “Life, liberty, and the pursuit of happiness”); sales or advertising (in real estate: Location, Location, Location). Of course we learn about triads in music theory, as well.

Even though I never gave much conscious thought to the Rule of Three, I think that, like most rhetorical conventions, it penetrated into my thinking and composition through the magical osmosis of reading good writing. Dr. Seuss, for example.

Whatever the source, I unconsciously used the Rule of Three when I created my dreaded “elevator speech.” As much as I think the 30 second elevator speech has no place in a normal conversation between people who have an IQ over, say, 50, you would be surprised how effective it is to have a well-crafted self-advertisement handy when you are at a business or networking event and everyone in the room is asked to introduce themselves and describe what they do. I find myself in these situations about once a week. My elevator speech, I’m not at all embarrassed (well , actually . . . I am a little embarrassed) to recite:

I’m Alex Craigie. I’m a Partner in the Los Angeles office of Dykema. My practice currently focuses on helping Southern California employers [1] prevent, [2] manage and [3] resolve employment disputes as efficiently and cost-effectively as possible.

An example of a hendiatris at work. I might vary parts of this to suit the audience. For example, if I’m working a room that doesn’t have a clue who or what a “Dykema” is, I might throw in that it is a “premiere Mid-West full-service law firm. ” No matter what, though, I always include my core description which centers around three verbs which describe what I do: I prevent, I manage and I resolve.

So think about invoking the Rule of Three.

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Partners: Go Easy With That Damned Red Pen

I can trace four periods in my life that significantly shaped my writing.

First, I’ve always been a passionate reader. Reading the good writing of others is not only great fun, it’s indispensable for learning to write well.

Second, in college I double majored in Philosophy and Literature-Writing. These years taught me to write very quickly. In a pinch, I would often leave myself only a very few hours–sometimes only 2 or 3–to write a paper that I could have worried over for days. I didn’t realize it at the time, but this habit of procrastination–not recommended for everyone–which required me to organize my thoughts and write coherent prose very rapidly, was probably the best preparation for the writing skills I use almost everyday as a lawyer.

Third was law school. I don’t like to think that law school did much to shape my writing. I didn’t get along with the IRAC method at first. As you can imagine, philosophers and literary thinkers tend to (1) doubt anything called a “Rule,” (2) live in the realm of “Analysis,” and (3) sometimes never get to any “Conclusion.” If you’re a law student who struggles with adapting to IRAC, I feel your pain. Take refuge in the knowledge that you’ll one day grasp the beauty of the IRAC method. You’ll master it eventually, or fail the bar exam.

I did benefit from Law Review, however. The journal experience helped me get the hang of editing the writing of others. It also helped hone my citation skills and attention to detail.

Without a doubt, the biggest influence on my legal writing has been the tireless editing and revision by my longtime mentor. For the first five or so years of my career, I always dreaded getting back any first or second draft. Would it be as consumed with red ink as the one that came before?

But he persisted and his tutelage paid off. I learned to write much more crisply and economically. My legal writing became less linguistically rich, but shorter and clearer. And while there were things he did that occasionally drove me absolutely batshit, I really appreciate the time and effort he took working with me to help develop my writing and advocacy skills. I’m now flattered on those rare instances when he seeks out my input on an issue or document.

Now I am occasionally the one with the red pen marking up someone else’s work. This is a big responsibility, and should be treated as such. I came across an interesting New York Times interview of Jonathan Klein, the C.E.O. of Getty Images. Among the issues he discussed was “leadership lessons” he learned from his time at Getty Images. He said this:

“I’ve learned a lot from my executive coach. Anytime someone came to me to show me their work, I would critique it. I would almost behave like a schoolteacher–my mother was a teacher–and bring out the metaphorical red pen. And what I didn’t appreciate at the time is that before you mess around the edges, you’ve got to say to yourself, ‘Am I going to make this significantly better, or am I going to make it only 5 or 10 percent better?’ Because in fiddling over the small stuff, you take away all the empowerment. Basically it no longer becomes that person’s work. After a while, those people get into the habit of giving you incomplete work, and then you have to do it for them.”

Heavy is the hand that carries the (not-so-) metaphorical red pen, right? At least with respect to my writing, I always felt that my mentor’s revisions made the end product “significantly better.” In other words, the red ink was clearly worth his time, my attention and the attendant blow to whatever misplaced or unearned sense of “empowerment” I had as a baby lawyer. But I recognize that I don’t always revise someone else’s work either to help make them a better writer or to make the product “significantly better.” Rather, I’m just making it sound more like I wrote it. And, as Jonathan Klein points out, that’s the wrong approach. I need–we all need–to learn to go easier with that red pen.

For the benefit of readers outside law, IRAC means Issue, Rule, Analysis and Conclusion. It is how law students, lawyers and judges typically approach a set of facts. In a nutshell, one “spots” or identifies an Issue, articulates or recalls the Rule, Analyzes how the Rule should be applied under the particular facts, and reaches a Conclusion.

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Repetition, Rhetoric, Dr. Seuss and Dr. King

Most writers who take their prose seriously have a few favorite rhetorical devices. When these are used well, they contribute to what is loosely referred to as style. When used poorly, they . . . well, I try not to think about that.

If you’ve read much of my blog, you probably recognize that I tend to heavily favor two such devices, alliteration and repetition. (It’s actually only one device, since alliteration is a form of repetition.)

Blatant, obvious, excessive repetition–at least in written form (rather than a speech)–is really only appropriate for a children’s book. Since I’ve been reading lots of children’s books over the past few years (two per night is the current average, though my daughter only let’s me choose one of the titles), I’ve come to really appreciate a writer who is not only a master of the children’s story, but a brilliant practitioner of repetition: Dr. Seuss (aka Theodor Seuss Geisel).

One of my favorite examples of Seussian repetition, probably among his most subtle examples, appears in And to Think That I Saw it on Mulberry Street. The good doctor there writes:

“Unless there’s something I can fix up,
There’ll be an awful traffic mix-up!

It takes Police to do the trick,
To guide them through where traffic’s thick–
It takes Police to do the trick.”

Another fine example shows up in that perennial favorite graduation gift, Oh the Places You’ll Go!:

“But on you will go
though the weather be foul,
On you will go
though your enemies prowl.
On you will go
though the Hakken-Kraks howl.
Onward up many
a frightening creek,
though your arms may get sore
and your sneakers may leak.”

Perhaps the most famous, obsessive, blatant and brilliant example of Seussian repetition is found in Green Eggs And Ham:

“I do not like them in a box.
I do not like them with a fox.
I will not eat them in a house.
I do not like them with a mouse.
I do not like them here or there.
I do not like them ANYWHERE!”

Lest you think this is all child’s play, repetition was a device of choice for a man who was unquestionably among the most compelling American rhetoricians of the last (or any) century, Dr. Martin Luther King. Even if many of us cannot recite from memory all of the details of Dr. King’s “dream,” his use of repetition has helped that speech and his message remain central in the (post) modern American consciousness. He said:

“And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”

I have a couple of further thoughts. As I said, repetition in texts intended to be read, not heard, must be handled with kid gloves. If  you incorporate Seussian repetition into a brief (or a blog post meant for adults), readers will think: (1) you’re an idiot, (2) you’re making fun of them, or (3) both. Because I value the opinions of both judges and blog readers, I take great care to be judicious with my repetition. Like any rhetorical device, its potency recedes with overuse.

Even in a speech, there is a real danger, if you get too cute with repetition, that your audience will think: (1) you’re an idiot, or (2) you’re an idiot who thinks he’s MLK.

Judiciously used, however, repetition in a writing or a speech can add impact, reinforce your message and make it memorable.

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David Foster Wallace: Avoid Noxious Puff-Words

I confess that I dream of having the kind of following that if I said, “Read David Foster Wallace or you’re dead to me!” there would be a subtle, but statistically significant, uptick in sales of Infinite Jest the following week. Sadly, I do not have that kind of following, and cannot afford to tell readers they’re “dead to me” in any event.

But that won’t prevent me from quoting one of his “Twenty-Four Word Notes” from another favorite, Both Flesh And Not. Specifically, discussing the term utilize, he writes:

Utilize  A noxious puff-word. Since it does nothing that good old use doesn’t do, its extra letters and syllables don’t make a writer seem smarter; rather, using utilize makes you seem either like a pompous twit or like someone so insecure that she’ll use pointlessly big words in an attempt to look sophisticated. The same is true for the noun utilization, for vehicle as used for car, for residence as used for house, for presently, at present, at this time, and at the present time as used for now, and so on. What’s worth remembering about puff-words is something that good writing teachers spend a lot of time drumming into undergrads: ‘formal writing’ does not mean gratuitously fancy writing; it means clean, clear, maximally considerate writing.” (p.261)

While not targeted toward an audience of lawyers, this is excellent advice to any writer, including lawyers. Avoid puff-words. They’re just noxious.

And no, the irony is not lost on me that this writer, who here urges “maximally considerate writing,” foisted upon us, his readers, arguably the most frustrating, wonderful, puzzling, brilliant, maddening and challenging novel since Joyce penned Ulysses. Infinite Jest spans 1,079 pages and includes 388 separately numbered endnotes (some of which have footnotes of their own). Nope, I love irony.

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When Collaboration Is A Race To The Bottom

This post could be alternatively titled: “Beware The Interloper With The Pen,” or “Why I’m Not A Great Team Player At The Writing Table.” In a recent article in the ABA Journal,”Why Lawyers Can’t Write, legal writing pro Bryan Garner discusses why lawyers often think they’re far better writers than they really are. The article is perceptive. He attributes our collective blindness to our inadequacy on a phenomenon termed the Dunning-Kruger effect. Here’s what he says:

“In 1999, two Cornell psychologists—David Dunning and Justin Kruger—conducted a series of studies showing that unskillful or unknowledgeable people (1) often think they are quite skillful or knowledgeable, (2) can’t recognize genuine skill in others, (3) uniformly fail to recognize the extremity of their own inadequacy, and (4) can recognize and acknowledge their own previous unskillfulness only after highly effective training in the skill.”

I agree with Garner that lawyers often suck as writers (my term, not his). There are exceptions. Most appellate specialists I know are pretty handy with a pen (yes, Ben Shatz, I mean you). But I would say most legal documents, briefs, letters, agreements that come across my desk are worth about a “C.” Considering what these lawyer-writers are paid for “C”-quality writing, they’ve really earned an “F.”

One point Garner makes that rings true concerns collaborative writing. Almost any lawyer who works at a law firm, large or small, has to contend at some point with another lawyer who insists that certain edits be incorporated into the final product. Even solo practitioners are not immune, as clients can rightfully insist on edits. Garner makes this point about this kind of “forced” collaboration:

“Sometimes, I’m told, a brilliant legal writer will be asked to incorporate a sentence or two, unchanged, written by an inept one. It’s a bad feeling. How would the pianist Vladimir Horowitz feel about inserting a 30-second sound clip into one of his recordings? A sound clip played by a pianist who had hardly progressed beyond “Chopsticks”? It must feel awful.”

Lest you get confused, let me say here that (1) I don’t consider myself a “brilliant legal writer,” and (2) I don’t equate my skills (in anything) with Vladimir Horowitz. But Garner’s point is well-taken, even for a middling writer like me. My mentor about whom I often speak is actually a really great writer, so his input is almost always an improvement. But over the years I’ve been forced to incorporate some real dreck into briefs or letters.

If you’re a junior lawyer and the edits come from a senior partner, or your client has suggestions, you may be powerless to argue. Don’t sacrifice your future over an awkward and unnecessary edit.

But you can also learn from the forced-edit experience, because it affords an opportunity to evaluate why you write as you do, and why you don’t think an edit improves the product. One lawyer with whom I worked for several years was only a couple of years senior to me, but I really admired his legal reasoning skills. He also had a tremendous grasp of the case-law surrounding the issues with which we routinely dealt (automotive product liability). But his writing was vomit. It was not that he couldn’t write–it was that he didn’t know how or when to stop writing. He was verbose and insisted on including every possible quote, from every possible case, to illustrate his point, without any regard for the judge and clerks. Fortunately, while he was senior to me, he was not so senior that I was powerless to re-edit his edits, which I did without hesitation. The final product benefited from his big brain, but I trimmed off much of the unnecessary excess. Evaluating his edits forced me to confront the question how much is enough and how much is too much.

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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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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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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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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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