What’s the difference between an ATL commenter and an ATL correspondent?
A commenter writes, “Screw you, Herrmann, and the horse you rode in on. And your wife, and your kids. And your grandma. And your cat.”
A correspondent writes a long, thoughtful email, like the one I received from a reader in Rochester, New York, who read my column, “On Tweedledee And Tweedledum, Esq.,” and accused me overvaluing good writing:
“In litigation, while writing is important, it is not paramount. Just as, or more, important are analyzing law and facts and knowing what claims or defenses to assert. Then developing a strategy for discovery – knowing what documents to ask for, where to search, what questions to ask at deposition – none of which requires much writing at all and certainly not great writing skill. Developing the facts – and developing them in a way to help and not harm your case – is often much more important than writing a great brief. Knowing what issues to dispute in discovery and which to cede is important. Negotiating skills are important. Legal research skills are significant. Then, if a case goes to trial, entirely different skills are needed. Using an example from your column, because a lawyer writes an excellent brief does not mean they know how to properly prepare a witness or question a witness. . . . Someone can write with great style and flair but use bad analysis, miss significant facts or fail to find an important case.”
I have two reactions: First, thanks for writing. And, second, maybe yes and maybe no . . .
Please don’t misunderstand what I mean by “good writing.” I mean good writing: An intelligent brief that make good arguments, puts them in the right order, starts at the beginning and moves thoughtfully through the middle and to the end, describing the relevant law and facts in a way that will persuade a judge.
I do not mean using two-dollar words where two-bit ones will do or gussying up a brief to attract attention. I don’t care if a brief contains memorable sentences, and my preferred writing style is “Modern American Snowplow”: Start at the beginning. Use short, declarative sentences. Make your way to the end. Then, stop.
I won’t necessarily complain if my outside lawyer writes with more flourish than I would, but that’s not what I’m looking for. I’m after solid, intelligent legal work, expressed in words that any ten-year-old would understand in a heartbeat.
Why do I value good writing?
First, because “good writing,” defined broadly, picks up much of what my correspondent frets about. A good brief reflects the author’s ability to read cases, choose issues, cull facts, apply law to fact, and persuade. Thus, insisting on “good writing,” broadly defined, is simply insisting on good lawyering.
But I emphasize — and perhaps overemphasize — good brief-writing for a second, practical reason: It’s what I can see and evaluate.
If I were part of outside counsel’s litigation team, studying the documents, working with witnesses, and reading the cases, then I could evaluate every aspect of outside counsel’s performance. I could tell whether she was pursuing the right leads, preparing witnesses intelligently, picking the right fights, taking good depositions, and making maximum use of the cases.
But that’s not where I sit. I’m responsible for all litigation involving my company everywhere in the world, and that puts me a fair distance from the day-to-day litigation team. I’m not personally reading the old emails and poring over the documents to cull the critical facts. Virtually everything I learn about our cases comes secondhand, screened by an intervening mind that has chosen to include some facts and omit others. Unless outside counsel makes some obvious mistake — telling me, for example, that, given a choice, I should prefer to sue in California to enforce the covenant-not-to-compete — I can’t judge the quality of his legal analysis or critical thinking.
In a typical case, I get one unfiltered view of counsel’s brain: The brief. If the introduction is incomprehensible, then I no longer trust your legal work. If the appellate brief doesn’t mention standard of review, then you’re either inept or don’t know when you’ve strayed beyond your competence; either way, you’ve turned me into a skeptic. If you use long block quotes or the passive voice repeatedly, then you don’t know how to persuade. When my one unfiltered view of your brain suggests that you’re not very good, why should I take it on faith that the rest of your game is actually great? Because you say so?
I do, rarely, get other unfiltered views of counsel’s competence. Once in a long while, I’ll attend jury research, an appellate argument, a mediation, or a trial. That’s plainly a serious chance to evaluate counsel, and I’ll make full use of it. But that’s the exception, not the rule. In a typical case, I speak to you by phone occasionally and I review your briefs. Between the two, briefs matter more.
Sorry, Rochester: You’re right that there’s much more to being a good lawyer than simply being able to write a good brief. But briefs matter, and they’re typically my only unfiltered view of counsel’s competence. I don’t have much choice but to overemphasize them.
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].