Litigators, Small Law Firms

Be Careful How You Write Always

Lawyers should make sure that everything they write in their work is up to the highest professional standards, both to protect themselves and to be great lawyers.

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Lawyers should make sure that everything they write in their work—everything, including every internal writing—is up to the highest professional standards, both to protect themselves and to be great lawyers. 

I teach law and government once a week at a local junior high school. When social media issues came up in a discussion about privacy laws, I was frightened by the familiarity these 6th and 7th graders had with Facebook, Twitter, and even SnapChat (thank goodness no one brought up Tinder). I was perhaps more frightened by the students’ complete lack of appreciation for the fact that absolutely everything they ever post on one of those sites, absolutely anything they text to their friends, absolutely anything they email lasts forever. As I explained to them, someone could blow up all the servers in Cupertino, but any iMessage they ever sent went through servers in several places, probably all over the world. Reminiscent of the scary videos they showed us in New York City public schools before the Berlin Wall fell, I told them that after the nuclear holocaust all that might remain would be cockroaches and, amending the lesson of those videos, some copy of our emails and texts somewhere.  ”You’re scary, Mr. Balestriere,” is what one student said (which I hope meant that the students understood a little better the permanence of what we all write, and not some personal comment on me).

Lawyers, especially young lawyers, strike me as blasé about what they write as those junior high school students. Beyond the lack of appreciation that everything they write never (ever) goes away, my bigger concern, and the focus of this post, is the lack of care in what they write.  Whatever we write and wherever we write it, if it’s for work, it needs to be up to snuff. To act otherwise is not only unprofessional, but results in bad habits and can even be dangerous.

Thankfully, most of us, most of the time, are careful about what we write in court filings and formal letters. I’m at a trial and investigations law firm and see all kinds of litigators, so I do need to emphasize my use of “most of us,” as any experienced litigator like me or my colleagues sees all quality levels of writing even in court filings. Generally, however, in formal writings we are aware that what we write can determine whether our clients win or lose. This simply requires having a sense of respect for a filing made with a court, or a letter to a client, by using the correct tone and following all grammar and punctuation rules.

We should be that way with everything. We should write internal memos as if we are going to file them with the court. We should write internal emails to one another just as we would write emails to clients. And, on that last matter, we should write emails to clients that resemble letters we would send them, at least in terms of following rules of grammar and punctuation (I’m general counsel to non-profits and have seen degradation in emails to clients from certain outside counsel, even ones who otherwise are good writers and careful lawyers).

Why do we need to hold ourselves to this high standard all the time?  The first reason is simple: we should always do our best work, always for ourselves and our colleagues (see Looney Tunes Rule). Don’t do shoddy work, period.  Make yourself proud. Make your boss proud. Make your subordinate proud. Make your mother proud.

The second reason is to ensure proper development and maintenance of good writing habits. If you don’t use proper capitalization in internal memos, I promise that you will make more errors regarding capitalization in your filings. If you don’t follow punctuation rules in internal emails, I promise that you will make similar errors in client letters.

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The third reason is that if you write it, not only will it last until the machines start the nuclear war and we have to send Schwarzenegger back in time to California to save us all, “it” may get to recipients you never intended. Everyone has a funny or horrifying “reply all” story where someone read something the writer never intended that particular someone to read. Websites abound with stories of “private” messages on Facebook being posted publicly. As we rush down the street to write that email or text, we may not have noticed that we accidentally included the wrong recipient until after we hit “send.” If something gets to the wrong person but the writing was professional and dignified (not insulting, not beneath us), the damage from the erroneously sent writing will be less.

If when writing we are always careful, always professional, always follow the rules of grammar and punctuation, and are never smarmy or offensive, we will greatly reduce the risk of making a stupid or embarrassing error.  At least as importantly, we will develop and maintain the habits to be the best lawyers we can be.

John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at 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 john.g.balestriere@balestrierefariello.com.

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