Legal Writing

Danger, Biglaw Associates!

Contractors have been there before — an unnecessarily angry associate screaming at a room of temps muttering about when they were first-year associates. So what has got their panties in a bunch? Well, like most curmudgeons, it is change. The legal landscape is rapidly shifting, and one has to move with the tide or be swept away.

We frequently throw the term “Contract Attorney” around in this column, but there are a wide variety of tasks that are now considered contract work. As the tasks change, contractors encroach more and more on work traditionally thought of as an associate’s domain.

So what are the most typical contractor tasks, and how are they affecting the associates’ way of life?

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The online version of the bluebook has dramatically improved my life.

Relatedly, my life is pretty boring most days.

— A Facebook friend whose baseball team didn’t make the NLCS, commenting on the Online Bluebook.

* Stay tuned after the credits of Captain Phillips to see the part where the crew accuses him of negligence and sues him for millions. [Findlaw]

* Graphs showing the extent of growth in the ten states with the most and least growth in attorneys over the last ten years. The Texas legal market is growing dangerously fast. I sure hope it doesn’t lead to massive layoffs and the shuttering of offices. Weil have to wait and see. [Associate's Mind]

* In Nevada, Heather can now have two (legal) mommies. [ABA Journal]

* The push for the federal government to overhaul the public defender system is gaining momentum. Too bad there’s still no “federal government” to speak of. [NPR]

* Senior lawyers editing their juniors should take it easy with the red pen. A lot of the time, seniors are not editing to improve the product, but to make it sound like they wrote it, and this is the wrong approach. Senior attorneys have a narcissism problem? Never! [At Counsel Table]

* A new blog featuring law school deans discussing legal education seeks bloggers. Which deans will walk into the spotlights to accept the public abuse? [Law Professor Blogs Network]

* The next time you use Tinder to find a hot date, you just might be treated to an advertisement for a plaintiff’s firm. Image after the jump…

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I took the train to Paris recently. (Sorry — I can’t help myself. I just love typing those words.)

That gave me an uninterrupted two hours to edit a document on the way to Paris and another uninterrupted two hours to edit a document on the way home.

The experiences couldn’t have been more different.

What’s odd is that it wasn’t the quality of the drafts that made the experiences different for me (the editor), but rather the quality of the reactions that I anticipated receiving from the authors.

How can that be? How can an editor enjoy revising one document and loathe revising another based solely on the anticipated responses to the edits? And what lessons might that teach the author (the person being edited)?

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Suing a school for giving you bad grades seems ludicrous. On the other hand, there’s something respectable about filing a 60-paragraph complaint in response to a law school telling you that you’ve failed Legal Writing and Civil Procedure. It’s kind of meta when you think about it.

The crux of the story is that a the law school demanded that a 3L retake CivPro II: Electric Boogaloo because he got a D the first time around. This interfered with his plans for his 3L year, so he decided to take them to court. In the process, every complaint he has about the school worked its way into the filing.

Which law school is getting sued?

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Yeah, yeah: That title caught your eye.

I thought about titling this column “Litigation Aphorisms,” but who the heck would have read it?

So I went instead with the first of three critical things you should know about litigation, all of which I learned from Neil Falconer when I practiced at the 20-lawyer firm of Steinhart & Falconer in San Francisco back in the 1980s. (I also dedicated The Curmudgeon’s Guide to Neil. He wasn’t a “mentor”; he just accidentally taught young lawyers by osmosis what it meant to be a lawyer.)

Neil’s first aphorism was this: “Never tell a small child not to stick peanuts up his nose.”

Why does that matter?

Or maybe I should start with a more basic question: What the heck does that mean?

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One of the things I hear from lawyers is: “I want to write, but I don’t have the time/know where to post/want to start a blog.”

Now I’m not in the blog-selling business or believe that every lawyer should have a blog because I’m not in the blog-selling business. (Get ready commentariat.) Not every lawyer can write (there commentariat… go!), but if you want to write, I’ll offer my thoughts. I offer them because this is my column, and I can do whatever I damn well please and I feel like it.

The first thing you have to determine when thinking about writing is your audience.

Unfortunately, many of you law review types actually think anyone out there wants to read something closely resembling a law review article. You can’t write anything without citing to case law or other articles no one has read or wants to read. You believe you’re still writing for adoration of your ability to analyze the history of some statute. You believe you can’t write anything unless it takes you weeks to research and is perfectly cited. You believe writing is done to impress rather than educate or inform.

When you write, you’ll see — ahem — comments about the writing style. Those are coming from those that can’t write like normal people. They spent months writing some over-cited, boring article that no one read and are raging against anyone who writes something interesting that contains a non-law-review-type writing style…

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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 . . .

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Ed. note: This is the latest installment in a series of posts from the ATL Career Center’s team of expert contributors. Today, Noah Messing of Yale Law School — author of the newly released book, The Art of Advocacy: Briefs, Motions, and Writing Strategies of America’s Best Lawyers (affiliate link) — explores how law firms might reassess how they select junior associates.

Companies like Google, Microsoft, and Facebook have hired thousands of employees over the last decade by relying on brain teasers such as “Why are manhole covers round?” and “How would you weigh your head?” One psychology professor concluded last year that this sort of “puzzle interview is being used with greater frequency by employers in a variety of industries.” Earlier this week, however, a top human resources executive at Google reported that his company had scrapped the practice, offering the following admission: “brainteasers are a complete waste of time.” Google realized that its tests failed to identify the traits that correlate with success. For instance, Google now seeks managers who are “consistent and fair,” even if they aren’t good at estimating how many golf balls can fit inside a school bus.

Law firms are overdue for a similar reassessment of how they select junior associates. And as a corollary, law students should pay attention to the skills that law firms ask them about.

Let’s start with the employers. Several years ago, I organized a focus group of partners from top-10 Vault firms. I wanted to learn which skills Yale Law should emphasize as we continue to modernize the way that we train our students. The partners (including two corporate attorneys) all said that legal writing was the most important skill for junior associates.

The simplest way to know how candidates write, of course, is to evaluate their writing….

Read more at the ATL Career Center….

The Scripps National Spelling Bee took place this week. I find that contest to be a cruel torture for young people who don’t need the pressure or exposure of being forced to fail in front of a national audience. Also, I don’t like watching little kids who can perform tasks I can only dream about.

But, in honor of the Spelling Bee, we’ve decided to have our own Above the Law spelling contest. How do you have a spelling contest on a blog without audio, you ask? Well, have you ever seen me try to spell without spell check?

Here’s how it’s going to work: I’m going to give you a little vignette during which I murder some legalese, and you’re going to tell me what I meant. No cheating…

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