Think Like A Pilgrim: Striking The Right Balance Of Legalese In Client Communications
Take a lesson from the Pilgrims and the spirit of Thanksgiving for better client communications all year long.
This holiday weekend, it’s important to remember that, unfortunately, not everyone is a litigator. But take a lesson from the Pilgrims and the spirit of Thanksgiving for better client communications all year long.
For many, Thanksgiving serves as an annual reminder that not only are many people not litigators, many aren’t even lawyers. For all lawyers, but especially New York business litigators, it’s easy to slip into a bubble where nearly everyone you deal with works in law or finance. As you get older, this tends to get worse. You lose touch with your friends from college who volunteered in post-Katrina New Orleans or Darfur after graduation, and meet new friends who are all lawyers. This has some downsides. The news the past few weeks has been filled with think pieces about how the Internet creates an echo chamber where we read only news that reinforces our existing beliefs, creating ever-increasing political polarization. But more importantly: It’s easy to forget that not everyone talks like a lawyer.
“Writes like a lawyer” is an increasingly loaded term as the plain English movement takes further hold. I’ve told people they write like lawyers, and never as a compliment. But even as we move towards a world where major universities award degrees “with distinction” instead of cum laude and a growing number of Americans consider “data” a singular noun, technical writing always creates accessibility issues. Good legal writing reduces this, but can’t eliminate it. If an appellate brief on a highly technical issue is completely understandable to someone without a legal background, it’s probably not an effective appellate brief.
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Financial regulation has been going through a plain-English mania the past few years, with consumer credit card disclosures now almost ridiculously accessible. The movement is now advancing to SEC filings, but as Bloomberg columnist Matt Levine recently recognized, plain English doesn’t make complex financial structures any easier to understand. Yes, there is low hanging fruit in writing clearly, just like how a well-written brief can make a complex issue more approachable. You can structure it more carefully, use only Germanic-root words, and keep your sentences short. But you can’t write away underlying complexity. It’s easy to convey what an APR is in simple and accurate language. It’s almost impossible to walk a reader through a derivatives transaction in a way that’s accessible to a novice and helpful to a professional.
Take Care To Match Your Language To The Audience
Like the Pilgrims at Thanksgiving, it’s always important to keep your audience in mind. Lawyers, like the Pilgrims, are an insulated group with their own particular vocabulary and frame of reference. And just as it may have been easy for a Pilgrim to slip and make a reference to a favorite Bible verse when speaking with non-Pilgrims, it’s easy for lawyers to slip and make a reference they don’t realize is cryptic.
On an intellectual level, we all understand this. And we regularly put it into practice when writing briefs, assuming that the judge or clerk reading it has no knowledge of the facts or the specific legal issues. But in briefs, we’re really pitching to the same audience each time. Sure, there are differences in tone if we know the judge is familiar with the facts or has recently issued an opinion on a topic, but these are small. Briefs are like writing for the Lex column of the Financial Times: accessible to any knowledgeable professional, but assuming a lot of conceptual common ground and shared vocabulary.
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With clients, of course, the newspaper you’re writing for varies. Some are Lex, others are mainline Financial Times, or the Economist, the Wall Street Journal, the New York Times], or the Washington Post. A client may be a highly sophisticated general counsel who is highly conversant in all the relevant issues. Or a client may have certain areas that they’re unfamiliar with, or even be new to litigation generally. Or you may be dealing with multiple clients at once, with different levels of experience. The challenge isn’t explaining the issue in simple terms—as Richard Feynman supposedly said, if you can’t reduce it to a freshman lecture, you don’t understand it—it’s hitting the right level of expertise.
No one likes being patronized, certainly not by a lawyer they’re paying for, and even if no offense is taken, reading something written at too low a level is a chore. A sophisticated reader will almost always have an urge to skim or skip something that he already knows. So not only does the client not get what they want, you potentially have communications issues, with the client not having read or understood something you needed him to. If you can write equally strong articles for the New York Daily News or the New York Review of Books, that’s a great skill, but it doesn’t do you any good if you write them for the wrong paper.
Be Proactive And Productive, Like The Pilgrims
There’s no shortcut to better tailoring your communications, since it requires both general skills and specific knowledge of your audience. But like many things, being aware and practicing will get you on the right path. So even after Thanksgiving is over this year, keep in mind the lesson from the Pilgrims, and keep an eye on how you communicate with those who may be coming from a different context.
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Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.
