A Most Sacrilegious Suggestion

Drop the definitions.

I have seen lawyers define terms in a brief and never use the definitions. I have seen lawyers define a term in a two-sentence letter to a client, where there’s no opportunity to use the definition. It’s something we do because it’s something other lawyers do. A reflex.
In a brief, letter, or memorandum, definitions serve only three purposes:

to clutter our writing;
to confuse our readers; and
to place the burden on our readers to keep track of what we mean.

Have you ever wondered why you don’t see defined terms in magazine articles or novels? It’s because those writers accept the responsibility for making sure their readers know what they are talking about at all times. We lawyers just give our readers a definition and make them keep track of it.

About eighty percent of the time we define a term, we define it with itself, which informs our readers that we are “hereinafter” going to refer to our client, “Humboldt,” as “Humboldt.” Why do we do this? Does it make sense to anybody out there? Or is it merely a tired convention? Do we really need to write:

McKensey & Moore LLP represents Gulf Coast Energy Services, LLC (hereinafter referred to as “Gulf Coast” or “the Company”) on the complaint filed by Jonathan Forshier.

Use the full name first, “Gulf Coast Energy Services, LLC,” then use your abbreviated version later in a sentence: “Gulf Coast” or “the Company.” Either is fine, but don’t tell us you are going to do it; don’t define it; just do it. Be logical with the term you choose; make it follow naturally; and we will understand.

A complex case with multiple parties on each side requires more thought, and perhaps there we devote a short sentence to explaining what we mean when we write “defendants.” But rarely can we not find a word (or two) that logically describes the words we want to replace, so our readers naturally follow what we mean.

The Worst Writing Advice You Ever Got

“Begin each paragraph with a topic sentence.”

Topic sentences work well when we’re in 6th grade and learning how to express ourselves. They help us organize our thoughts. But once we know how to do that, we lawyers should stop using them. Otherwise, our briefs and memoranda become bloated. (Hint to litigators trying to meet a page limit: Many briefs can be cut 15-20% if the lawyer removes only the bald topic sentences.)

A ubiquitous form of repetition, topic sentences only stall our readers, making them run in place, until we decide to move them forward. If we get specific with our readers at the beginning of a paragraph, rather than give them an overview of what’s to come, they still can easily follow.

In both paragraphs below, the second sentence alerts the reader to the topic and where the lawyer is headed. The reader does not need the broad statement of the first sentence.

New York Casualty’s argument is also logically inconsistent. To adopt New York Casualty’s interpretation would make the use of the term “criminal” in the introductory clause of Section (2) superfluous.

Finally, New York Casualty’s statement of the law on specific clauses superseding general clauses is overstated. Rather, inconsistencies in a contract are to be resolved “by giving full effect . . . .”

Another example:

Marriott’s argument that the Project will cause the Courtyard to lose access is without legal or factual merit. Marriott claims that the Project will increase traffic flows and as a result during peak morning and afternoon hours, traffic will back up past the Courtyard.

Most of our topic sentences contain nothing more than self-serving, conclusory statements better left unsaid anyway. When we avoid them, we allow our words to breathe, and our writing becomes more vibrant.

How to Confuse Judges, Clients, and Colleagues

Pepper your briefs, letters, emails, and memoranda with extraneous names, dates, and numbers.

Because names, dates, and numbers assume an aura of importance, your readers try to keep track of them, even if they’re not important. Your readers don’t know. And trying to keep track of them all prevents your readers from absorbing what is important.

Instead of writing . . .

“On January 21, 2012, Ortega violated . . . . As required under company policy, he was provisionally discharged on January 26, 2012. On January 30, 2012, after a provisional discharge meeting, Ortega’s employment was formally terminated. On February 2, 2012, the Union filed a grievance . . . .”

. . . write something like:

“On January 21, 2012, Ortega violated . . . . As required under company policy, he was provisionally discharged, and, after a provisional discharge meeting, formally terminated at the end of January. Three days later, the Union filed a grievance . . . .”

By doing it this way, you give your judge a time reference and let her know that the process continued fairly and expeditiously, but you don’t confuse her with insignificant dates.

In the following example, note that the lawyer mentions “Yeoman Construction Company” only one time in his brief – in this sentence. But his readers will still try to memorize Yeoman and the date, because they don’t know till they get to the end of the brief that Yeoman and the date are not important:

On February 17, 2011, Yeoman Construction Company (“Yeoman”) contracted with the Virginia Housing Authority to build 171 units of low-income housing.

The rewrite below allows the judge to focus on an important name and an important number: the “Virginia Housing Authority” and “171”:

In early 2011, the previous builder contracted with the Virginia Housing Authority to build 171 units of low-income housing.

Whether you’re writing a brief, a memorandum, an email, or a letter to a client, never include a name, a date, or a number, unless it’s important.

Never Confuse a Fact…

. . . with a Relevant Fact.

Just because something happened does not mean you have to shoehorn it into your brief. Be selective. All facts suggest issues; when we include irrelevant facts, they’re still suggesting issues, which confuses judges because they don’t know those facts are irrelevant.

Note the difference when we remove the irrelevant facts:

In July, 1986, When the Jeffersons arranged to sell sold their house for $259,500 to the Congers on a real estate contract., The the principal balance owing on the loan at that time was approximately $126,000.

If your sole purpose in writing these two sentences is to compare the value of the house to the balance remaining on the mortgage, why would you invite the judge to memorize a useless date, wonder if the house sold, ask “Who are the Congers?”, recall problems that arise using real estate contracts, and suspect you might be hiding something by modifying “balance” with the specific word “principal”?

Nobel Laureate Ernest Hemingway once said, “I always try to write on the principle of the iceberg. There is seven-eighths of it underwater for every part that shows.” Here’s the part that still fascinates me: “Anything you know you can eliminate and it only strengthens your iceberg .” Think about that. If you know something about a story, your story becomes stronger when you leave it out. Hemingway said The Old Man and the Sea could have run to over a thousand pages. He had seen marlin mate in those waters off Cuba. “So I leave that out.” He had seen a pod of fifty sperm whales and harpooned one. “So I left that out . . . . But the knowledge is what makes the under-water part of the iceberg.”

So research, discover, know what you’re talking about; then captivate your judge and focus his attention by selecting only the salient facts you need to tell your client’s story and support your issues.

How to Irritate Clients (Part 3 of 3)

State the obvious.

All clients read our memoranda for one reason: They want to learn. If they’re not learning, they get annoyed. So every sentence should reveal something they don’t know. To tell a client that, “The court needs to look at the facts of each case,” tells the client nothing.

After we waste a client’s time explaining how we organized our memorandum and listing all the cool sources we found in our research, we often hit the client with something everyone already knows. To the client it sounds like:

Before commenting on the enforceability of
the contract, we should read it first. No, seriously.

I’m not being facetious; here’s an example:

To determine whether the parties to the Agreement
set forth a “clear and unmistakable” statement of
their intention that the arbitrator decide his or her
own jurisdiction, the terms of the contract must be
reviewed.

I have so many examples of stating the obvious, it was difficult to limit myself to only two. The following sentence is a double “duh.”

Whether a breach of this heightened fiduciary duty
has occurred turns on the facts and circumstances
involved in the situation in question (which facts
and circumstances will always be evaluated in
hindsight).

I understand the urge to get formalities out of the way before we launch into the good stuff, but we have to get to the good stuff faster. Clients would much rather know the answer and what they’re supposed to do (see “The Best Way to Open a Client Letter”) than have our thoughts on how we organized the memorandum and what we will and will not discuss and a review of the documents and authority we consulted and hear that before commenting on the contract we thought it wise to read it first.