Monthly Archives: January 2014

Legal Drafting: Replace “Shall” with “Must”

I have to admit that this has become a bit of a fetish with me. In my 28 years as a city attorney (for three small towns, and a fourth for about my final 15 years of practice), I did a lot of legal drafting: ordinances, resolutions, and contracts, among other things. I also had to read such legal documents, and for the most part, the documents were written abominably. Sometime during the course of my career, I discovered that the U.S. government (yes, you  read that correctly) developed guidelines for writing in plain English. I found those guidelines quite helpful,  and I shared them within my office. In the world of easy cut and paste drafting, it seemed a losing battle, but I still fight it. Today in revising a memo written by a young lawyer, I went after the “shall” language. I can’t change the statute (legislatures should), but when summarizing requirements for a client, there’s no need to continue this bad habit of using “shall” when a more direct and imperative “must” will do. Say it aloud: “I shall not use it again!”. I sent the following to the young lawyers that I work with that I retrieved from–yes–my friends with the U.S. government.

 

F.R. Lucas on Writing Well & with Style

If there is one thing that I can’t get enough of, it’s advice on improving my writing. I communicate a lot by writing; indeed, I believe I share this trait with most lawyers. Legal prose needn’t be the “word gravel” (Gerry Spence) that we so often encounter. Some authors, like Bryan Garner, aim almost exclusively at lawyers as their audience, and thus specifically target legal needs and problems. However, we can benefit from other, non-lawyer sources as well. This book is one such instance of a book intended for anyone who might appreciate some first-rate instruction about writing.

Style by Lucas coverThe internet deserves another shout-out of praise for somehow guiding me to this wonderful book. I often treat the internet as I do the labyrinthine Seminary Coop Bookstore: I can wonder here and there and there; discover the most delightful titles and ideas. I think that this tip came from Farnum Street, which obtained the tip from an article written by Joseph Epstein. But no matter, along with my trusty Kindle (a useful supplement to the paper book) I have now completed this delightful and instructive book

Reading this book was like sitting in class with the most urbane and humane don that I could imagine. He combines a literature class (from the Greeks to the British and French masters) with a writing class. And while this is not work shop, no exercises, no bullet points, you realize that he writes the writing that he teaches. Clarity, brevity, and courtesy toward the reader are his guiding principles, and he practices  these virtues, displays them really, while guiding us along a path littered with great writers from past ages. 

This is not an easy, how-to book. Quotations in French require a trip to the endnotes for translation, and a great number of the examples quoted are new to me, even if the names of the authors are familiar. However, the effort proved worthwhile, and I completed the book feeling a great sense of satisfaction at having been entertained and delighted while I received great instruction. The perfect professor.

 

The Zen of Public Speaking

Nick Morgan’s website publicwords.com and books provide sound guidance to public speakers that by definition includes trial lawyers (and most other lawyers, too). This blog post is worth the couple of minutes just for the gem that it’s not about you, but about your message. And for a further pearl, move from self-consciousness to group-consciousness. Good stuff.

Thoughts on Oratory from Mary Beard

This post by British classicist (and JLF speaker) Mary Beard reflects on contemporary oratory via the movie, “The King’s Speech”. What makes a speech “great”? Why do we have no woman recognized as great orators? (A male category?) How do we distinguish good oratory from demagoguery? Can a politician reading the words of another be a great orator, or is that politician just an actor? It’s a very thoughtful piece that applies to lawyers as well as politicians. It does not address the profound mistrust or suspicion that any orator encounters today, however, which I consider the most difficult issue of all.

 

Negotiating with Strength by Using BATNA

I intend the caption to have a double meaning: negotiating with another who has greater strength and negotiating strongly with that more powerful adversary. This happens in almost any case involving an insurance carrier or corporation: they will inevitably have more money and personnel to deal with the issues than a plaintiff’s attorney and the client. How to get around this–or at least minimize the differences–is a key challenge. I recommend this article because I’ve been in this situation so many times before. I like the recommendation of systematically reviewing considering the options, the BATNAs.

Riffing off of Fisher & Ury’s Getting to Yes, the fine blog At Counsel Table gives some examples of how to pull this off in the context of litigation and mediation.

 

How to Lose an Appeal from Judge Kozinski

Below is a link to a law review article. Normally, I’m not out to punish readers, so you may ask why I have included a law review article. Fair enough. I have done so because it’s a tongue-in-cheek article written by 9th Circuit Judge Alex Kozinski. Its topic is straight forward: how to lose an appeal. Kozinski focuses on the two tools available in an appeal: the brief and (if you get it) oral argument. Kozinski even points out that the ability to lose an appeal allowed LBJ to win an election and for Abe Fortas, the author of the losing brief, to gain a seat on the U.S. Supreme Court. Any guesses about who appointed Fortas? Anyway, the article is a bit dated (1992), but only because it’s from before the era of word count limitations made possible by word processing software. Otherwise, I think that the advice is timeless. Enjoy.

Kozinski The Wrong Stuff