Brief Writing

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….”

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At a breakfast last week, the Seventh Circuit Bar Association learned the true meaning of going “from the sublime to the ridiculous”: As Judge Frank Easterbrook took his seat, I approached the lectern.

I won’t burden you with the subject of my remarks (regular readers of this column could probably guess), but I’ll share the sublime. Judge Easterbrook said one thing, and he failed to mention another topic that he often raises.

Judge Easterbrook explained that, as a young lawyer, he had sent a brief to the Third Circuit for filing. The clerk rejected the brief and mailed it back. Easterbrook called, and the clerk’s office explained that it had rejected the brief because the back cover was the wrong shade of blue — a shade specified by an unwritten local rule. Easterbrook asked if there were any other unwritten rules, and the clerk said he wasn’t sure. Easterbrook mailed a revised version of the brief, which the clerk’s office again rejected — this time for violating a different unwritten local rule. On the third try, the clerk’s office finally accepted the brief. Easterbrook swore that, if he were ever the chief judge of a circuit, all of the rules would be in writing. Easterbrook then told the assembled crowd that (1) the Seventh Circuit’s written rules are fairly comprehensive and (2) the clerk’s office is extremely helpful if you call for advice, so there’s no longer an excuse for not complying with appellate local rules.

Judge Easterbrook last week chose not to discuss a different subject. One of the other folks who attended the breakfast meeting told me that the judge often raises this in his talks . . .

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Here’s my thesis: We create rules to hedge against ineptitude, and we thus institutionalize mediocrity.

Here are the examples. First, someone — the Administrative Office of the Courts? God? — creates rules to hedge against incomprehensible judicial opinions, and we thus discourage judges from writing exceptional opinions.

When new federal appellate judges attend what is affectionately called “baby judges’ school,” the judges are told how to write opinions. An opinion should have five parts, the judges are told: An introduction (which does not have to be preceded by a separate heading); a statement of facts; the standard of review; the legal discussion; and a conclusion.

Do we impose these rules because every judicial idea is best expressed in this format? Of course not. These rules impose a basic organizational structure on decisions, so that even the worst appellate decisions will be marginally comprehensible. The rules hedge against ineptitude.

Most judges follow the rules, and society generally benefits; we understand most of what’s written. I suspect that many judges who would be capable of writing better opinions if they were not bound by the rules nonetheless choose to constrain themselves, opting to do as instructed. Society may suffer in those situations, because the opinions are not as well-crafted as they might otherwise be.

A few judges ignore the rules. Whatever your politics, for example, you probably agree that Judge Frank Easterbrook often writes great opinions; he regularly ignores the mandatory structure. (This isn’t a high crime or misdemeanor, so he’s safe.) We don’t complain when Judge Easterbrook strikes out on his own, because readers understand what he’s saying and often delight in how he expresses himself.

On the other hand, if Judge Nobody were to strike out on his own, the law might become a muddle. We try to control that judge by imposing a structure. Bureaucratic rules discourage greatness, but they hedge against ineptitude.

Here’s a second example:

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Suppose your firm has one incompetent partner, and our joint has the misfortune to be working with that person.

This guy consistently misses important issues. He sends us briefs that read (as did one draft I recently received): “In response to ALR’s motion to dismiss the OC, [plaintiff] added an allegation in the FAC that . . . .” We comment, over and over again (as we did recently), that briefs on our behalf must be written in English, not gibberish. Even if you’ve set up short forms, no reader sees “OC” and “FAC” and thinks “Original Complaint” and “First Amended Complaint.” Use words, not alphabet soup.

To no avail.

We suggest that the partner include on the litigation team a gifted writer (because we’re too nice to suggest that the partner include on the litigation team “a lawyer who’s worth a damn”). But nothing ever changes; the partner never hears us. Confronted with an avalanche of criticism and suggestions, no law firm partner has ever said to us, “Why, thank you. Now that you mention it, I realize that I am in fact inept. To better serve your legal needs, I’ll replace myself with a real lawyer.”

No, no, no. Instead, the partner continues to send us bad briefs, making the same mistakes over and over, but seemingly thinking that we may not care the next time around. It’s Einstein’s definition of insanity: “Doing the same thing over and over again and expecting different results.”

Up to that point, the fault is the partner’s. But then I personally make two mistakes….

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In last week’s Grammer Pole, you voted to overwhelmingly approve the use of split infinitives. Fifty-three percent of Above the Law readers said that splitting infinitives is acceptable, even if it should be done sparingly. An additional forty percent said, “Yes. It’s great to liberally split infinitives!”

This suggests to me that ATL readers are a pragmatic bunch when it comes to language. You’re not hung up on hoary rules that don’t serve a practical purpose in communication.

I think I can guess, then, what you think of the injunction against ending a sentence with a preposition….

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In an event I did a few years ago at the University of Chicago with Judge Richard Posner (check out the podcast here), Judge Posner tossed out a delicious little blind item. He mentioned a federal judge in Chicago who would fire law clerks for what she viewed as a very grave offense: splitting infinitives in written work product.

But is splitting infinitives really such a crime?

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The most recent installment of Grammer Pole of the Weak showcased the sophistication of Above the Law readers. The poll results show that most ATL readers appreciate the distinction between “that” and “which” (which they like to show off in their legal writing).

Today we tackle an issue that is less clear-cut, which will probably result in a more closely divided vote than last week’s. Here is the issue: What is the proper capitalization for the first word of an independent clause that follows a colon?

If that sounds confusing, please keep reading for clarification….

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NBA Commissioner David Stern

* The NBA is suing its players for failing to negotiate in good faith. Funny, I think the players are acting with the same “good faith” NBA owners do when they steal teams from loving fan bases or hold cities hostage until they build new arenas. [WSJ Law Blog]

* Having a drunk woman angrily spray breast milk on you is probably not as alluring as it sounds. [Sentencing Law & Policy]

* In other sentencing news, a guy got six weeks in jail for getting his ass kicked by Rupert Murdoch’s wife. [Gawker]

* This is funny because it’s kind of true. [Washington Fancy]

* To win, sometimes lawyers need to be quiet? Man, am I glad I got out of that racket. [Underdog]

* Lawyers should be happy to know that good writing requires doing it over and over and over again. [What About Clients?]

* The market apparently doesn’t like the debt ceiling deal. [New York 1]

A few months ago, I attended a hearing on a motion for a temporary restraining order.

The judge came out on the bench and berated one side’s lawyers: “You filed these papers at midnight last night. Your brief is more than 70 pages long and has a foot of exhibits attached to it. I arrived at court at 9 this morning, and you’re now arguing this at 9:30. Do you really think I had a chance to read this stuff?”

How does this happen? How can lawyers be so silly?

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It’s inevitable, but at some point during your summer clerkship, you will have to write, and odds are, you will be writing a lot. Words are the currency of lawyers. Once you graduate from law school, you will be paid hundreds of dollars an hour to write brilliant briefs, ironclad contracts, and demand letters that would even make Dick Cheney cry. With that in mind, you will need to proof and analyze everything you write during your summer clerkship –- even if it is as an informal as a one-page memo or quick email.

This week’s Career Center Summer Associate Tips Series focused on helping you develop your writing skills, and is brought to you by Lateral Link’s Frank Kimball, an expert recruiter and former Biglaw hiring partner.

Read on for more information on how to manage your written work product as a summer associate….

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