Tag: writing

Bad Writing Kills Client’s Big Dreams

Angry client comes to lawyer. Angry client had big dreams of holding his own outdoor concert series. He thought it would be epic.  And like Wayne Campbell and Roy Kinsella years before him, he believed that if he built it, they would come.  So he set to work building his concert facility. But alas, the cops shut him down over security concerns, thereby dashing his dreams. 

So he did what people do: He went to a lawyer. Lawyer is moved by angry client’s story. “We will draft such a lengthy and powerful complaint that it will force them to relent!” Lawyer says. “Hoorah!” says angry client. Lawyer then grabs his Dictaphone and sets to work spewing forth every lurid detail. Somebody types it up. Who? We don’t know. The lawyer then files it. But alas (yes, a second alas), he either failed to proofread it or was so jacked on Aerosmith tunes that he must have just plain missed all the typos, punctuation and grammatical errors. The defense moves to dismiss—“What does any of this even mean, your Honor…?” 

But of course, district court judges are loath to kill dreams so easily. The judge gives the dreamers a second chance, and then apparently a third chance to amend. But it seems the story was just too good to leave any of it on the cutting room floor—or at least clean up its punctuation and grammatical errors. The district court tossed it. Enough is enough.  

The dreamers were not done—they never are when it comes to litigation.  They appealed to the Seventh Circuit (Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011)).  Surely that court would see the merit in their cause.  But the Seventh Circuit was unmoved.  It affirmed the dismissal; calling the third amended complaint nearly incomprehensible, lacking in punctuation, and riddled with grammatical and syntactical errors.  In the process, the court felt compelled to acknowledge (at n.7) “the unfortunate reality that poor writing occurs too often in our profession[.]” The takeaway: Raise the bar, write well, be thorough yet concise, proofread, and then rock on.

The takeaway: Raise the bar, write well, be concise, proofread, and then rock on.

Put the Glass in Your Reader’s Hand

For those who are old enough (my fellow GenXrs), remember how exciting it was when your teacher rolled the projector into class? Especially if the reel was a big one. The big reel not only meant a longer film, but also increased the odds that the film would jam up in the machine, taking further time away from academic pursuits.  Today, let’s roll out the projector. Short reel. 

It is well known (or should be) that a good writer leads the reader to a conclusion by showing, not telling. As C.S. Lewis explained, “Don’t say it was ‘delightful’; make me say ‘delightful’ when we’ve read the description.”  The clip below, from the TV show The West Wing, is a great example of this.  In the scene, Leo McGarry (played brilliantly by the late great John Spencer) is an alcoholic who had a relapse.  He is about to endure questioning in front of a congressional subcommittee and is explaining his relapse to his attorney.  But instead of writing simple dialogue in which McGarry tells his lawyer, effectively, “I’m an alcoholic and couldn’t help myself,” the writers lead us there by putting the glass in our hands. This is how you show…

The 24 Hour Rule

While in law school, I started my illustrious (or not so much) legal career clerking at the Oklahoma Attorney General’s office. I was helping an attorney on a case and the other side did something that really ticked us off. I don’t remember exactly what, but we were smokin’ hot. I was instructed to write a letter. I did. And it was epic. As I recall, it explained in sufficient detail how wrong the opposition was and how the great State of Oklahoma was about to land on his head like a house thrown from an F5 tornado. I showed it to my supervising attorney. With a smile on his face, he explained that, yes, it accurately reflected everything that occurred and what we would do in response. But we should wait 24 hours before sending it to see if it read as well after the waiting period. Of course, it didn’t. We toned down the official version the next day. This was my introduction to the “24 hour rule.” Anytime you write something while you’re angry or emotional—letter, email, brief, text, memo, whatever—wait 24 hours (or even a longer cool down period) to send or file it. It will often look different to you after the waiting period and you will thank yourself for it.

Get Your Hands Dirty

“Arguments, like gardens, take work, and a party who hopes to prevail on appeal should be willing to dig in the dirt and not expect that opposing counsel or the court will do that work for them.”  

A.S. v. R.S., 2017 UT 77, ¶ 16, 416 P.3d 465. 

Conversing with Lawyers (Who Talk Like They Write): Date Night

Finally, it was Friday night and Betty was thrilled that her husband Don, a senior associate at Mega Firm, would make it home by 7:00 so they could go out to dinner together.  Don finally arrived. They jumped in the Audi and sped off down the street.  “Where should we go?” Don asked.

“You decide.”

“How about Chilis and/or Outback ….” Don responded.  They may drive an Audi, but they still liked the chain restaurants.  But Betty had a bigger problem: Where did Don want to eat?

“So, do you want Chilis or Outback?” she asked for clarification.

“Yeah, Chilis and/or Outback…”

“You want both?”

“I like both.”

“But where do you want to eat?”

“Don’t care.”

“Obviously. Just pick one.”

“I did–”

“You didn’t. You said Chilis ‘and/or’ Outback. That doesn’t make any sense. ‘Or’ would mean one or the other—that you’re fine with either; ‘and’ would mean that you want to go to both and that’s not going to happen.”

“Listen, I write contracts every day using ‘and/or’—it makes perfect sense.  It’s in every form that I’ve read and used in the five years I’ve been at Mega Firm.  Sterling Goodfellow uses it all the time and he’s a senior partner … has a 23,500 square foot log cabin near Bear Lake,” he glanced confidentally at her, then back to the road. “It’s a legal term.”

“It’s stupid. Take me home,” Betty demanded. At this moment she realized that her mom was right.  She should have married Henry, an architect.  He wasn’t afraid of commitment.

The Tenth Rule

The great Elmore Leonard’s Tenth Rule of Writing should be every lawyer’s first: “Try to leave out the part that readers tend to skip.”

If a Lawyer Wrote It: Moby Dick

Please take notice and refer to me as Ishmael (hereinafter “Ishmael,” “I” or “me”).  On or about approximately some years ago, having approximately little to no ($0) monies on my person, moreover, having nothing of interest to me on that certain real property which was then my place of abode, I determined to leave said real property for the adjacent waters (hereinafter “the Ocean” or “Sea”) which I decided to explore via a large floating vessel (hereinafter the “Ship”). This idea arose as a proximate cause of the anger that had been arising from my time on said real property. Indeed, whenever I start feeling the corners of my mouth start to project themselves downward. Furthermore, whenever there is rain and the sky is gray proximately causing my mood to feel the same. Moreover, whenever I find that I have stopped involuntarily in front of various structures wherein caskets are manufactured and stored.  Indeed, whenever I end up at the end of every funeral procession that I come upon whereupon I become clinically depressed and contemplate taking my life by stepping into oncoming traffic. Or, on the other hand, becoming so angry that I determine to commit assault and battery by removing the hats off other person(s) heads. I think about going to the Seas as soon as practicable.  Said Ship is my alternative to a pistol and a ball.  Marcus Porcius Cato Uticensis (hereinafter “Cato”) has a tendency to “fall upon his sword” with various philosophical statements. Whereas I quietly take to the Ship, which is not surprising.  Most men at various times do the same thing.  That is, they have the same feelings as I do towards the Oceans.

Ancient Relics

Tuesday night, April 3, 2018. Attorney Duncan Winston just returned home from the gym. He tossed his gym bag on the floor, frustrated that once again he could find no takers for a game of Jai alaia. Maybe it was for the best, he had work to do. Before sitting down at the desk in his study, he went through his usual routine. First, he took his phone off the hook. Next, he switched on his television for a little background noise. He turned the knob through all four stations. But even after fidgeting with the rabbit ear antenna, and caking it with more foil, he just couldn’t get a clear enough reception. No matter. He grabbed a mixed tape and popped it in his boombox. (He would have turned on a movie but his Betamax was broken.) After hearing the hard slam signaling that the cassette was rewound, he pushed play and moved to his desk. Next, he ensured he had sufficient reams of paper lined up in his dot matrix printer. (That paper was hard to come by these days.) He then sat down at his desk and fired up his Commodore 64. As he waited for the system to boot up, he reached for his copy of Blackstone and cracked it open. The musty smell of the parchment was familiar, like an old friend. Time to get to work. There was no doubt how he would start this motion—the same he way he had started every motion, pleading, and filing since he began practicing law:

COMES NOW the Plaintiff, Southwestern Utah Red Rock Appliance Wholesale, Inc., a Utah corporation (hereinafter “SWURRAW”), by and through its undersigned counsel, Duncan G. Winston, Esq., and hereby ….