Denver Bar Association
January 2004
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Shake Off Your Old Bad Habits

by Doug McQuiston

(Second in a series of articles on Legal Writing for the Denver Bar Association Docket)

"Comes Now the Defendant . . . "

Pull out a Complaint or Answer you have done in the last couple of months. Does it lead off with "Comes now the [Plaintiff/Defendant], above-named, by and through its counsel, undersigned, and for its [Complaint/Answer], states, avers and maintains as follows . . . ?"

Do you have the slightest idea why you wrote that? Does anyone? Somewhere back in the mists of time, in the walnut-paneled confines of the English courts, there might have been a bailiff who would announce the parties’ arrival in court by banging his staff on the floor and saying in a loud, sing-song voice: "comes now the . . . " But do we need to write it in 2004 in America just because that sample Answer our senior partner gave us 10 years ago had that phrase in it, because the sample Answer he stole it from had it, ad infinitum?

We do it all the time. Our transmittal letters begin with "Enclosed please find," as if we’re sending the reader on an Easter egg hunt. We say, "including, but not limited to, the following," like first-graders afraid our recitation of the alphabet will leave out a letter. We never really sat down and consciously wrote this. We saw it somewhere in something we stole to fashion our first letters or briefs, so it has stayed in our form bank ever since.

This verbal kudzu vine infests other writing we do, too. Our opinion letters or case evaluations grow so dense with qualifying underbrush the client needs to send it to another lawyer for a translation. We send our clients a 15-page deposition summary like we get paid by the pound. Worse yet, it reads like a Hunter S. Thompson piece, thick with run-on sentences, page-long paragraphs, no storyline or focus, not even headings to mark the way through. Of course, that’s because we dictated it in the car on the way back from the deposition and "didn’t have time" to edit it.

But it Saves Time, Right?

We think all of this saves time, because we don’t "waste time" editing. But does it? If what we write is so unclear it cannot be understood, we have to take more time to answer the client’s phone call with "a few questions" about the deposition. When we talk with her, we learn that our 15-page summary was an impenetrable block of streaming consciousness in black type. She just couldn’t bring herself to read it. Can you blame her?

Ask yourselves: How much time did you really save by giving the client a piece of work they couldn’t use? More to the point, is this the kind of quality you slaved through three years of law school to give your clients?

We Are What We Write

This "bang it out" mentality has gotten worse with the advent of the Information Age. Today, much of what we do as lawyers is done in writing. Much of that writing is done electronically, through e-mails, electronically transmitted letters, even "e-filed" pleadings. Speed is king. We can throw our stuff out there for posterity with just the click of a mouse. E-mail is now the primary form of communication with our clients. We crank out thousands of words a day in that medium. Yet. we think we’re "too busy" to even proof-read, much less edit, what we write. We just hit the "send" button to get it off our desk. That was easy, right?

Unfortunately, the client, or other reader, will read our little gems. Our typos or poor sentence structure jump off the page like grasshoppers to our readers. Soon, sort of like a reverse "Where’s Waldo," all the reader will see are the typos.

If we apply this same "bang it out" approach in pleadings, we slip further into mediocrity. Before the judge even gets to the substance of our motion, we have lost. We do so much today in written form. We get to appear for hearings in open court increasingly infrequently. Now more than ever our writing reflects who we are professionally. If it contains misspellings and poor sentence structure, is wordy and unpersuasive, how does that make us look?

We Can Get Better

How? First, I must persuade you, as the driving force for change at your firm, to shake off these old, bad habits. Then, you must go forth and spread the gospel. This is not meant to be a one-time presentation to your associates over donuts one Friday morning, then forgotten. It is meant to be the beginning of a career-long process, for all of you, of rethinking how you write, then setting about making it better.

You already know how to do this. Locked inside you and every one of your lawyers is a creative, powerful and persuasive voice just waiting to come out and be heard. Our next few articles will explore some simple and (hopefully) fun ways you can help your lawyers find their voices and turn them back on.

Next month—"ruthless" editing!

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