What was the most anxiety-ridden ten minutes I’ve experienced under an editor’s gaze?

I had finished the manuscript of The Curmudgeon’s Guide to Practicing Law. My then-15-year-old son, Jeremy (who, like any teenager, would as soon spit in his father’s eye as praise him), said: “So, Dad, you wrote a book, huh?”

“Yes, Jere.”

Long pause. “Let me see the first chapter.”

I knew exactly what the kid was thinking: “I guess, if my Dad wrote a book, I should take a look. But this is going to be unbearable. So I’ll read a few pages and be done with it.”

Jeremy sat in the family room reading chapter one. I paced anxiously in the kitchen. My wife didn’t understand my anxiety: “Why are you so nervous? It’s only Jeremy.”

“Don’t you see? Jeremy’s my first truly neutral reader. He’s not a lawyer. He’s not inclined to read the thing. He won’t cut me any breaks. If Jeremy likes it, there’s a chance there’s actually an audience for this thing.”

After a few more anxiety-ridden minutes, Jeremy walked into the kitchen. After a seemingly endless pause: “Let me see chapter two….”

Me, very calmly: “Sure, Jere,” and I handed it to him.

The second he’s out of the room, I’m doing the Tiger Woods fist pump, silently mouthing “Yes!!!” into the air.

Jeremy returns ten minutes later: “Okay. Let me see the rest of it.”

New York Times best-seller list, here I come! (Well, ABA best-seller list, anyway.)

Remarkably, many lawyers are utterly unfamiliar with this kind of writing: Writing not to have written, but to be read. Lawyers spend way too much time writing for themselves or the trash can; lawyer-authors write stuff without giving a second’s thought to whether anyone would ever care to read the finished product.

Don’t get me wrong: There’s mandatory writing for the trash can. I’ve done it before, and I’ll do it again. I’ve written books that I knew no one would ever read. My months of labor were meant to achieve only two ends: (1) To create something that would sit unread on law library shelves, until some associate stumbled across the tome at midnight one night and had a “Eureka!” moment, and (2) To permit me to say to clients at beauty contests, “Everyone claims to know about this field of law. But I wrote Oxford University Press’s leading treatise in the field [picking up the book in one hand, waving it about, and placing it down on the table in front of the potential client], so I’m not bluffing on these subjects.”

The client was never going to read the book, but that wasn’t the point. I hadn’t written the book for it to be read; I wrote the book so that I could wave it around in the air as a prop and then give it away. Sometimes, you write things that aren’t meant to be read.

What about, for example, the disclosures distributed with credit cards? If the lawyer who writes those disclosures is lucky, no one will ever read them. If the lawyer-author is unlucky, one plaintiff’s lawyer will read them someday and predictably find them to be wanting. (Then there’ll be a big fight about whether the disclosures adequately conveyed information that no one had ever read anyway. Ain’t the law grand?)

But writing for the trash can doesn’t end there. If a government regulation requires your company to have a communications plan to alert employees to certain types of information, then you dutifully write (and post, or hand out, or whatever) the required words, despite your knowledge that no one will ever read them. You write because you’re required to write; you don’t write to communicate.

(One might arguably say the same thing about scholars pursuing tenure. If they’re writing for any audience at all, it’s a miniscule one.)

Law firm brochures should be written to be read, but most are not; they are written to be written. That is: Information — particularly information that your audience needs to know — can be presented in a way that entices readers. The writing can be light and engaging. But law firms write brochures because “we need to publish something on this subject. Find an associate to pull something together.” The associate dutifully obeys, summarizing the case or statute in ponderous words in the passive voice. The firm then publishes and distributes the thing, so the firm has spoken on the subject.

The firm has spoken, but no one has listened. (The act of writing serves some small purpose there. It can get the firm’s name in front of clients or prospects, and the firm has created documentary evidence, as I did with my book, that it must be knowledgeable because it’s written something. But the fact that the brochure is self-published reduces its value as a credential.)

So, too, with law firm quarterly newsletters, big firm blogs and Twitter feeds, and the like. “We need six articles for the quarterly newsletter. Find some volunteers.” Or big firm blog posts: “We created the blog. It’s embarrassing not to feed the damn thing. Find someone to write something!” Or the Twitter feeds: “Bigg & Mediocre hires another lateral partner!” “Bigg & Mediocre opens a new office!” “Bigg & Mediocre finally wins a case!” Firms can crank out that self-congratulatory stuff, but wouldn’t it be better to generate less meaningless content and more things that audiences actually read?

I’ll take my argument one dangerous step further: You can do the same thing with briefs. I’ve read an awful lot of briefs in my life. Most of them seem to have been written to be written: The author (mistakenly) thinks that it’s the judge’s job to read the thing, so it doesn’t make any difference if the brief is impenetrably dense and unappealing. The lawyer writes to have written; the judge, poor soul, is condemned to read.

A very few lawyers write briefs that stand up and sing on the reader’s desk: The introductory paragraph draws the reader in; the statement of facts tells an interesting story; the argument engagingly (but compellingly) explains an issue, perhaps with a (very light) sense of humor.

Many lawyers are simply unable to write that kind of brief; they couldn’t do it if they tried. Other lawyers refuse to sign engaging briefs, for fear that a light touch projects the wrong attitude. And smart lawyers uniformly realize that engaging briefs are exceedingly hard to write and pose some risk, because less ponderous briefs might offend a tiny percentage of judges. But a courageous few lawyers have the skill and nerve to write briefs that are meant to be read and that, over the course a lifetime, will increase the lawyer’s success rate. What a pleasant change of pace.


Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].


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