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Saturday, August 23, 2003

From the party of the third part ...

Professor Eugene Volokh of The Volokh Conspiracy — commenting on an aside from Howard Bashman of How Appealinglaments the tendency of lawyers (including judges) to overuse definitional parentheticals:

Why do lawyers think it's helpful to have obvious parentheticals like this? If there is only one Chanthasouxat in the case, people will realize that Chanthasouxat refers to that Chanthasouxat. If there is more than one, then you shouldn't call either Chanthasouxat. Likewise, there were exactly two defendants in the cases being considered in the opinion; who else would "Defendants" refer to?

Sometimes, a parenthetical like this may be helpful, for instance when one is introducing an acronym that's common enough to be worth using, but not so common that it's obvious. But often — as here — the abbreviation (whether a last name or "defendants") is so utterly obvious that I just see no reason at all to include it.

A couple of explanations spring to mind.  Basically, what it boils down to is that lawyers either write that way trying to look smart, or else under the misimpression that they have to write that way to actually be smart.

One of my great surprises in law school from 1977-1980 was how very little specific instruction was given to legal draftsmanship.  There was some small-group instruction on basic legal citation form given to first-year students by third-year students, and one could perhaps intuit some principles from studying substantive law — particularly the two-semester first-year course in contracts.  My impression is that most law schools are trying harder to address this gap nowadays.  But no one ever sat me down and said, "Here's how you avoid ambiguities when drafting contracts," for instance.

In my last two years of law school, though, I was a member, and then an editor, of the Texas Law Review, which frankly transformed my writing style — mostly, but not wholly, for the better.  After graduation, I had the honor and privilege of clerking for a year for the Hon. Carolyn Dineen King, who is now the Chief Judge of the U.S. Court of Appeals for the Fifth Circuit.  Then, however, she was in just her second year on the bench and still relatively fresh from private practice as a business and securities lawyer.  My judicial clerkship — which amounted to a full-time writing job — greatly influenced my views on both law and legal writing.  And the third major influence has been my later career as a practicing trial lawyer.

Although I'm not a "deal lawyer," during most of my career I've handled lawsuits arising out of the transactional documents that deal lawyers write — commercial leases, employment agreements, licensing contracts, merger agreements, and so forth.  I have seen an imperfect but still very strong positive correlation between (a) the wealth and power of the client, (b) the prestige and billing rate of its lawyers, and (c) the length and complexity of its transactional documents. 

Judge FiendishI've also observed that deal lawyers are expected to anticipate and provide for every eventuality.  They write under the working premise that if ever litigation should spring from a document they have penned, they will be exposed to the world as a fraud, an utter personal and professional failure.  This concern makes them write every word in every line in every paragraph on every page of these documents to withstand intense scrutiny — with the most hostile of motives — by a hypothetical "Judge Fiendish" who sits as the Chief Justice on the Supreme Court of No Second Chances.

Some of this spills over into litigation-related writing as well, of course.  Judge King in particular was very keen that the opinions we helped her write be buttoned up and nailed down just as tightly as the transactional documents she'd dealt with every day as a deal lawyer.  Every party to every appeal, for instance, would be specifically referenced by both name and litigant-position precisely once, and thereafter solely by a defined term intended to be the best shorthand reminder for that party.  Beyond defining parties and terms, we obsessed more generally over the possibility that something we might help Judge King write would someday be found unclear or ambiguous by a future panel of "Judge Fiendishes." 

The natural consequence of this paranoia, however, is writing that quickly tends toward being turgid, stultifying, even constipated — along with an extremely unhealthy respect for and reliance upon "forms."  To her enormous credit, however — and perhaps in aid of my literary salvation — Judge King was aware of the tendency of this kind of punctiliousness to deaden the language of what we clerks helped her write.  Her passion was to get things right and clear, but subject to those requirements, she also encouraged us to try to find dryly colorful and evocative phrases.  "Tell a story," she'd urge us clerks, "An opinion has to tell a story to be readable!"  Probably my favorite sentence in an opinion that I contributed to writing was from her dissent in a Commerce Clause case involving a state-subsidized fruit market in Georgia which went something like this:  "With due respect to the majority, these tomatoes, potatoes, and peaches do not rise to the level of constitutional significance."  I probably walked around our chambers for a week inanely singing "tomatoes, potatoes, and peaches" to myself.

Even trial lawyers tend to rely too much on forms, and they are too willing to copy that which has worked in the past without looking closely at its actual clarity or other qualities.  The silliness of this was brought home to me once in a jury trial in which one of my colleagues had drafted the original answer of our client, the defendant.  We had a very old retired judge presiding over the trial — one who believed that "opening statements" were a newfangled waste of time, and who insisted instead that to acquaint the jury with our position in the case, I read aloud the written answer my colleague had filed.  My colleague had copied from a form that probably was written in about 1890.  Imagine, if you will, me standing in front of an absolutely perplexed jury, trying my dead level best to give a dramatic and persuasive reading to the following:

"Comes now ABC Corporation, the defendant in the above-captioned and -entitled cause, who, for answer to charges asserted against it in the original petition filed by the plaintiff herein, asserts its general denial of those charges, each and all, collectively and singularly, and wherefore, premises considered, the defendant further prays that upon formal hearing thereof at trial in a court of law, said charges and allegations shall be dismissed with prejudice, that judgment shall be entered in favor of the defendant, that the plaintiff shall take nothing and be sent hence without day, and for such other and further relief, at law or in equity, to which the defendant may show itself justly and equitably entitled."

Neither Lawrence Olivier, Kenneth Branagh, nor Mel Gibson could have made that soliloquy sing!  But I still see this sort of crap filed in court pleadings every day.

After that humiliation, I began writing things that, if so commanded by Judge Fiendish, I could read aloud to a jury.  "Comes now," "wherefore," and the like I've tried to banish from my vocabulary.  Today I'd write that same answer, with the exact same legal effect, as:

"ABC Corp. denies the claims asserted against it by XYZ Inc. and asks the court to enter judgment for ABC."

But to do that, you have to have confidence that your client won't freak out and say, "Hey, I could have written that!  And you're charging me how much per hour?"  In other words, you must have persuaded your client that you have something to offer in addition to your services as a shaman in, and speaker and interpreter of, the mystic received wisdom of the law.

Indeed, as I've grown into a crusty trial lawyer, I've taken more and more risks with my professional writing.  Last year I shocked some of my colleagues when I submitted a trial brief that called our opponent's brief "a tale full of sound and fury, signifying nothing."  Yes, there was a deliberate omission from the line as Macbeth delivered it, for while I was eager to attack their work, I did not want to attack them personally — and I thought the omission actually made the allusion more interesting anyway.  (This was written, by the way, in a "meta-brief™" — one composed in .html and given to the court and opposing counsel on a CD-ROM, with promiscuous hyperlinks to the full text of all cited cases and to .pdf scans of all of the relevant exhibits.  Bill Shakespeare and Clarence Darrow meet Bill Gates.)

All of which is to say that as I've grown in confidence, my goal has increasingly become effective communication, rather than slavish adherance to tradition and formalisms in the hope that they'll make me look, or be, smarter than I really am.

What I have not yet become, though — no surprise to those of you who've read to here! — is concise.  Concision is the hardest art; it requires the greatest effort and self-confidence.

And now I'm blogging!  Surely — for many reasons — 'nuff said, Beldar.  Hush.

Posted by Beldar at 05:28 PM in Law (2006 & earlier) | Permalink


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(1) Dennis Slater made the following comment | Aug 24, 2003 2:46:57 PM | Permalink

Nice post. Enjoyed it. I agree that "Concision is the hardest art". I can always find one more thing to say whether it relates to the subject, illuminates the subject a bit more, or makes the argument more coherent or not. I like to hear myself write.

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