The Recurring Error: From First-Year Law Student Through Retirement
Two important pieces of advice about legal writing, from in-house columnist Mark Herrmann.
About six weeks ago, I wrote about a particular mistake that appears routinely in legal writing.
That prompted a professor of legal writing to send me an email: “Your column resonated with me. One of the biggest transitions that students must make as they enter law school is learning to write to meet the information needs of a reader, not just to explore a topic. Students typically hand me so-called briefs that aren’t focused or persuasive; they’re just recitations of everything the student has learned on the topic. That’s a hard habit to break.”
“Hard,” nothing! I’m going with “impossible”!
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Four years ago, I shared with you my idea of how lawyers should record their thoughts immediately after a deposition ends. The report should focus not on what was said at the deposition (because any fool can summarize a transcript), but on what the lawyer was thinking during the deposition (because those thoughts are both critically important and ephemeral).
The deposition report should not say, “The witness authenticated the June 30 email.” Rather, the report should say, “When I asked about subject A, the witness started to evade and opposing counsel started objecting. There’s a weakness hidden there; let’s think about what it might be and how to exploit it.”
The first subject — what was said during the deposition — is both transcribed (and therefore permanent) and somewhat less important (because we can always read it later). But the second subject — counsel’s reactions during the deposition — is ephemeral (because, within an hour or two, the lawyer will forget that he sensed something in the room when subject A arose) and critically important (because, once the thought fades, we’ll never remember to follow up on what may prove to be a critical point).
Despite my having explained this — both orally and in writing (in my column) — I continue to receive silly reports (even from relatively senior lawyers): “The witness attended George Washington High School. He graduated from State University with a degree in marketing. Blah, blah, blah.”
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An in-house lawyer who’s monitoring hundreds (or thousands) of cases probably doesn’t care too much about where one witness in one case went to high school.
Why is this hard for some lawyers to understand?
I have a few guesses:
First, I just don’t explain myself clearly, so no one understands what the heck I’m driving at.
I’m ruling that possibility out, because (1) most lawyers understand what I’m saying and write reports that hit the mark, and (2) that would require blaming myself for something, and that’s just so darned hard.
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So that can’t explain why some lawyers screw this up.
What else might account for the error?
Second, writing the intelligent report is hard.
“That clown Herrmann wants a report? I’ll give him a report. ‘Report’ means repeating what was said during the deposition. I’ll have a legal assistant summarize the transcript, and I’ll send it over to Herrmann. That will get him off my back.”
I’m not ruling that out.
Third, the lawyers didn’t learn, either in their legal writing classes or the decades since, of the need to meet the information needs of the reader, rather than to explore a topic.
Lawyers are thinking: “I’m supposed to explore the topic of the deposition. So I’ll report what was said at the deposition.”
Lawyers are not thinking: “An in-house lawyer overseeing many cases probably doesn’t care too much about when Jake Barnes graduated from high school. If my report says, ‘Barnes graduated from high school in 1991,’ then the in-house lawyer will engage in the usual mental triage and forget that fact before he’s finished reading the sentence that recites it. But, if I tell the in-house lawyer that the plaintiff is hiding something important on subject A, the in-house lawyer and I will think together about how to extract the hidden information and exploit it.”
(I’m not saying, of course, that the substance of testimony is completely irrelevant. If we need one critical admission from a witness at a deposition, any curious observer would be interested to learn whether or not we obtained it. So include that in the report. Or if the expert swore that he’s not aware of any scientifically valid way to test his hypothesis, and he thus cannot testify to anything to a reasonable degree of scientific certainty, that, too, would probably interest a reasonably curious person. But think before you write. Typically, only a very few facts matter; the real key is to remember and develop the strengths of our case and the weaknesses of the other side’s.)
I’ll now assemble in one place the two keys to writing.
First, as Steven Pinker said in The Sense of Style, and I dutifully reported last year, good writing requires an act of pretense: You know something. You must convey to an ignorant person the thing that you know and the ignorant person does not. To do that, you must put yourself in an imaginary state of ignorance, acting as though you do not know the thing you want to explain. Only then will you be able to select words that convey to an ignorant person the idea that you’re trying to communicate.
For example: You’re wallowing in the details of a case. You know who Jake Barnes and Brett Ashley are and why the conversation in July 2014 is critically important. So you write: “Barnes admitted he told Ashley about the fire in 2014.”
Is that sentence helpful?
What’s your reader’s state of ignorance? If your reader doesn’t know who Barnes is, or who Ashley is, or that the case involves a fire, your report wasn’t very helpful.
Is it useful to send a quick email from the trial site explaining that “the court denied MIL 4”?
Who’s your reader? Does your reader know that you’re in trial, and the court is ruling on motions in limine, and the substance of the fourth motion, and why it matters? If so, your email is okay. If not, you failed in your obligation to put yourself into the reader’s state of ignorance.
Before you set fingers to keyboard, put yourself in an imaginary state of ignorance. Only then can you begin to communicate.
Second, as I wrote this summer and re-emphasize today (thanks to my legal writing correspondent), think not just about your reader’s state of ignorance, but also about the information that your reader needs. (That’s not necessarily the information that you want to convey; it’s the information the reader needs.) The judge needs, in the statement of facts, every fact that (1) is necessary to an honest statement of the case and (2) leads to a decision in your favor. The rest is irrelevant.
But the CEO, in the email asking her to approve a million-dollar settlement offer, really doesn’t need to know all of the underlying facts. The CEO might need to know, for example, the amount of settlement authority that you’re requesting, the amount of any existing liability reserve, whether the case is insured, and a brief, honest description of the strengths and weaknesses of the company’s position that should be considered in evaluating settlement.
Tailor your report not to what you want to say, but to what your reader needs to know.
That’s it.
(Except, of course, for all the technical stuff — like short sentences, and no prepositional phrases, and little passive voice, and short paragraphs, and argumentative section headings, and plenty of white space on the page, and never using two-dollar words when two-bit ones will do, and, well, look up the rest. But that’s just technique. Even great writing style achieves nothing if you don’t follow today’s two rules.)
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 inhouse@abovethelaw.com.